Cujus Est Solum

Question 1

Edwards v Sims

Answer 1

Facts: Edwards has built cave, Lee thinks it runs under his land and he wants a surveyor to confirm. Edwards wants a writ of prohibition to survey, thinks Lee just wants to block cave or extort him out of earnings from cave tour.

Held: Edwards loses; inspection (survey) ordered. Can order such a survey if reason to believe that A (Edwards) is trespassing on B (Lee)’s land.

Reasons:
- Cujus est solum
- Legal precedent of inspecting mine for similar reasons, no difference here
- Unless there’s been a division of estate, landowner entitled to free and unfettered control of own land above and beneath
o Certain limitations to this (i.e. nuisances)
- Nothing wrong with surveyors into cave to confirm whether it runs under Lee’s property. If yes, Edwards should be glad to know and can cease trespassing on Lee’s property. If no, this dispute will be quieted and Lee has to go home.

Dissent:
- Majority would deprive Edwards of valuable rights (and perhaps destroy value of property) upon the motion of Lee who may have no interest in what may be lost
- Doesn’t like straight application of cujus est solum (it’s always been kind of a myth)
o “The rule should be that he who owns the surface is the owner of everything that may be taken from the earth and used for his profit or happiness”
o It should not be held that he owns that which he cannot use and which is of no benefit to him, and which may be of benefit to others.
- Edwards has worked for this cave and it is what he made it. Dissent therefore on grounds of equity

Question 2

Didow v Alberta Power

Answer 2

Facts: P owns farmland, D built power lines on road beside land. The poles’ cross-arms protrude six feet into P’s land’s airspace. Could potentially interfere with aerial spraying, tall machinery like metal granaries

Held: P wins, D trespassed. A land owner is entitled to freedom from permanent structures which in any way impinge upon the actual or potential use and enjoyment of his land.

Reasons:
- The cross arms constitute a low level intrusion which interferes with the appellant’s potential, if not actual, use and enjoyment. This amounts to trespass.
- Splits out permanent (not okay) from transient like airplanes (generally okay)
o Airplanes may not be okay if flying too low

Question 3

Maxwell Properties v Mosaik Property Management

Answer 3

Facts: D has constructing building, had temporary walkway/scaffolding above P’s building. Some debris fell on P’s roof. P claims trespass.

Held: D wins. No irreparable harm to building; P’s use and enjoyment was minimally compromised, which should be weight against potential inconvenience for D of injunction.

Reasons:
- Irreparable harm would include things like the likely permanent loss of customers; loss of goodwill; and prevention of someone from earning a living