Civil Law Property

Part 3: Property in Relation with Persons (subjects of rights in Land)

Chapter II: Private Ownership of Land and its origin

Art 918:

Parts of the territory not owned by natural persons or legal persons nor transferred to a trust patrimony belong to the State and form part of its domain. The State is presumed to have the original titles to such property

S. 1 – The Seigneurial System and its abolition

History

• 
  Cartier “discovers” Canada 1534  two manners of controlling land  conquest in war and discover
  
• 
  Seigneurial system was from the “Custom of Paris”
  
• 
  First grant was in 1607 to Louis Hébert
  

Main Features of the Seigneurial System

A - Types of Grants of Land

Grants en seigneurie of three types

• 
  Eminent domain (King’s title)  “fief suzerain/domaine éminent”
  
• 
  Direct domain (title of seigneur but not owner)  “fief dominant/domaine supérieur”
  
• 
  Useful domain (title of the censitaire/habitants but not owner)  “fief servant/domaine utile”.
  

Grants en censive: grantee paying annual dues and holding directly of the Crown

• 
  Only has eminent title (of the king) and the useful domain (of the habitant)
  
• 
  Rents might be paid directly to the crown
  

Grants en franc aleu: without other obligation on the grantee than to render fealty and homage.

• 
  Outside the seigneurial system
  
• 
  Reserved nothing for the crown
  

B - Obligations in Seigneurial System

The seigneurs were not owners; they were empowered to make under-grants or concessions to those who applied. These lands were held by concessionaires/ censitaires.

The censitaires were bound to pay:

• 
  certain annual dues
  
• 
  certain casual dues (droit de banalité) (dr de retrait)
  
• 
  homage
  
• 
  Must use the mill of the Seigneur with tax taken off
  

The Seigneurs were bound to:

• 
  pay dues (sometimes) to crown
  
• 
  pay homage to King
  
• 
  grant land to censitaire
  
• 
  other obligations (mills, etc.)
  

 At the time of the Cession, 1760, lands in Québec were comprised of:

1. 
   the unconceded lands of the Crown;
   
2. 
   the Seigneuries;
   
3. 
   the lands of the censitaires;
   
4. 
   lands held directly of the Crown en censive; and
   
5. 
   lands held en franc aleu.
   

 In 1760, with the pass to Great Britain, the system did not change and free and common socage was seen as the equivalent to en franc aleu

Abolition of the Seigneurial System
 Soon after cession, Brits decided to begin to eliminate Seigneurial System. (per Marler) Acts were then passed enabling a censitaire to make an agreement with his seignior to commute his feudal dues and services for a lump sum, converting the tenure of his land to that of franc aleu roturier.

 These acts were ineffective and in 1854, the Consolidated Seigniorial Act was passed, allowing censitaires to hold their land in franc aleu roturier, free and clear of all feudal and seigniorial duties and charges except the redeemable constituted rent (substituted for all seigniorial duties and charges). Process was called Commutation  “processus de la commutation”

• 
  Each title was dealt with separately:
  

1. 
   the seigneur became the OWNER of all lands not previously granted to the censitaire. All obligations to the Crown disappeared;
   
2. 
   the censitaire became the full owner of land granted to him. Of the 5 obligations to the seignior, 4 were abolished (with the Crown compensating the Seignior for the value thereof) and the rent was transformed – a capital sum had to be paid. (In a block or in instalments or just in the form of interest until full payment.) (NB. Not the value of the land but the value of the obligation of the cens et rente due to the seigneur  Constituted rents were guaranteed by hypothec on land)
   
3. 
   The Crown no longer had a claim over lands held by others.
   
4. 
   By the effect of the Act, all other lands fell under franc aleu/free & common socage.
   

1854: An Act Respecting the General Abolition of Feudal Rights and Duties

• 
  “Whereas it is expedient to abolish all Feudal Rights and Duties in Lower Canada, whether bearing upon the Censitaire or upon the Seignior, and to secure fair compensation to the latter for every lucrative right which is now legally his…; And whereas…it is expedient to aid the Censitaire in the redemption of the said charges:”
  
• 
  art. 30: every Censitaire shall hold his land in franc aleu roturier, free and clear of all feudal and Seigniorial duties and charges except the Rente constituée substituted therefor.
  
• 
  art. 30(2): every Seignior shall hold his domain and the unconceded lands in his Seigniory in franc aleu roturier, free and clear of all feudal dues or duties to the Crown or any Seignior Dominant.
  
• 
  art. 59: no lands held in Free and Common Socage or en franc aleu roturier shall be charged with any perpetual irredeemable rent. Whenever rent is so stipulated, it may be redeemed on payment of the capital calculated at the legal rate of interest.
  
• 
  art. 60: none of the foregoing provisions apply to the wild and unconceded lands in Seigniories held by the Crown in trust for the Natives.
  
• 
  the rentes constituées provided for in article 30 were themselves the object of statute in 1935. The Seigniorial Rent Abolition Act organised a process for their gradual abolition.
  

Note Exceptions from the Act in Art 60: lands conceded to natives.

S. 2 Permanent Consequences of abolition of tenure system

1) Prohibition to recreate directly or indirectly a system of tenure

• 
  Indirectly, including clauses in deeds of transfer of land, charging the acquirer of land to perform obligations (eg. services)
  
• 
  Impact on how we define Real Servitude as not an obligation to do but a relationship b/n two pieces of land
  
• 
  (It is mostly indirectly that this would happen. See arts. Art 1177 & 1178 regarding servitudes.)
  

2) Prohibition to have perpetual rents & Prohibition of perpetual Lease

• 
  Rents: Max duration of 100 years (art 2376) (defn K of rent or annuity art 2367)
  
• 
  Lease: “for a certain time” which ultimate limit might be 100 years (art 1880)
  

3) Ownership is ultimate title and is perpetual. Nobody above the owner

• 
  It is incommutable
  
• 
  Defn of ownership at CcQ 947 and CcLC art 406
  
• 
  Should crown want land, must expropriate and paid for (art 952)
  
• 
  Special law (art 917) allows for confiscation but must be gained through specific statute
  

4) Type of Ownership

• 
  Only one type of ownership and is irrevocable
  
• 
  Other rights to land are going to be lesser rights than ownership
  

 Sources of private ownership: All are same types of ownership now

• 
  1) forms of seigneurial title that were commuted
  
• 
  2) grants made in free and common socage
  
• 
  3) grants en franc aleu
  
• 
  4) more recent grants made under statute
  

S. 3 Private Ownership of Land (or private domain); multiple sources; content of title

A – Sources: How can an individual get grants today?

-Through these acts.

An Act Respecting Agricultural Lands in the domain of the State

• 
  Art. 9: the Minister may alienate or lease out any ungranted lands for such purposes as he may consider to be in the interests of agriculture, fisheries, or food supply.
  
• 
  Art. 11: the Minister may grant a servitude or right on ungranted land.
  

An Act for Agricultural land south of the 50^th Parallel (CB 115)

Forest Act (CB 106)

Mining Act (CB 107)


B – Relevance of old titles

1. Rights to the beds and banks of Watercourses: Might have to go back to original grant to see extent of right of ownership

Case: Houde

Procureur Général du Québec. v. Houde [1998] R.J.Q. 1358.
Facts: In 1852, Price acquires the land from the Crown and runs a sawmill. According to a plan prepared for the AG, a “fosse à saumons” is found approximately 200 metres from the sawmill dock. At low tide, the river is almost dry. At the time there were several islands downstream, creating an obstacle to navigation. Québec’s AG claims that this part of the river would be able to be navigated at high tide. Issue: Does right of ownership include right to exploit the watercourse (right to beds of water (includes fishing) hydro power, sand from bed, etc….) Decision: Riparian owner has the right of ownership of the beds of non-navigable waters. As the contested part of the Petit-Saguenay River is non-navigable, public fishing rights cannot be invoked.	Reasoning: Art. 400 CCLC or Art 919 CcQ: The bed of non-navigable waters continue to form part of the concessions of riparian lands unless expressly excluded in the title. To be “navigable”, a waterway must be a veritable lane of transport and communication. Here, natural obstacles hint that the river was improper for commercial navigation in 1852. Moreover, neither the title nor surveyor’s report mention exclusion of the riverbed. Ratio: The Seigniorial Court charged with liquidating the acquired rights at the abolition of seigniorial rights in 1854 held that for NON-navigable waters, their beds implicitly belonged to the seignior unless excluded in the title.
Notes: In 1918, art. 400 of CCLC (now art 919) was amended, giving the State title to non-navigable watercourses bordering lands alienated after 9 February 1918 as well as their banks. However, since 1 June 1884, the Crown already reserved, by virtue of legislation, ownership of a band of land of 60 metres and the related rights to fish with concessions or grantings of lands along non-navigable waterways. Before this date, independently of the mode of concession of riparian lands, the nature of the right conceded flowed directly from the distinction between navigable and non-navigable waterways A watercourse that can carry a log boom but no other kind of commercial traffic (ie boats or rafts) is considered non navigable

Art 919:

The beds of navigable and floatable lakes and watercourses are property of the State up to the high-water line. The beds of non-navigable and non-floatable lakes and watercourses bordering lands alienated by the State after 9 February 1918 also are property of the State up to the high-water line; before that date, ownership of the riparian land carried with it, upon alienation, ownership of the beds of non-navigable and non-floatable watercourses. In all cases, the law or the act of concession may provide otherwise.

Watercourses Act - Permits the lease or alienation of the banks or beds of navigable rivers, lakes, sea etc Needed to know how has right to exploit of beds: Date of Grant Character of watercourse (navigability and flottability)  Definition in Auger below

• 
  If navigable: land extends to the highwater mark  the bed is owned by the state
  
  • 
    Exception: if the title of the land says otherwise (the state grants rights to the bed  no date of application, could happen today)
    
• 
  If non-navigable: Depends on the date of the original title – see art 919 –
  
  • 
    If after 9 Feb 1918, extent of land is high water mark
    
  • 
    If before 10^th of Feb 1918  right of riparian owner includes the bed of the river all the way to the middle of the water course
    
  • 
    There are exceptions per art 919(3)
    
  • 
    Example of the case Auger
    

Case: Auger

Procureur Général du Québec v. Auger [1995] R.J.Q. 1980 (C.A.)
Facts: In 1982, respondents ask for declaratory judgment regarding ownership of riparian lands on l’île de Jésus to the low water line. The City of Laval had made a notice of expropriation of the lands and had calculated the indemnity on the basis of the lands terminating at the high water line. Issue: Does the right of ownership extend to the low water line? Decision: Riparian owner has rights to the bank of the navigable river as per the title granted by the state	Reasoning: Bed had been granted with the land in original title and extended past the high water mark Ratio: As the parties agree that La Rivière des Prairies is navigable, its bed belongs by Québec law to the State, unless expressly conceded. The part of the land between the highest and lowest water levels is part of the waterbed. On 29 October 1687, an Act was signed by the governor of Nouvelle-France. The Act stipulated the concession of the banks situated in front of ALL the lands belonging to the Seminary in fief.
Notes: Require both navigable and floatable Floatable  is the river able to transport the timber en masse Navigation  Commercial transport is threshold to pass

2. Rights to Minerals below the Surface -

Art 951

Ownership of the soil carries with it ownership of what is above and what is below the surface. The owner may make such constructions, works or plantations above or below the surface as he sees fit; he is bound to respect, among other things, the rights of the State in mines, sheets of water and underground streams.

Mining Act

• 
  art. 3: rights in or over mineral substances form part of the public domain.
  
• 
  art. 4: rights in/over mineral substances do NOT form part of the public domain if the substances are found in mining concessions for which Letters Patent were issued before 1 July 1911; in lands granted in a Township before 24 July 1880; or in lands granted under seigniorial tenure where mining rights were not vested in the Crown. In lands granted before 24 July 1880, rights in/over GOLD & SILVER deposits form part of the public domain.
  
• 
  art. 6: the owner of the soil AND THE LESSEE may use and displace, for their domestic needs, any mineral substances listed in art. 5.
  

• 
  Private ownership gives rights to owner of what’s under the soil unless provided for by the Mining Act
  
• 
  Limited to S.5 of the Mining Act (list of substances that can be used by the owner) (p. 213 CB)
  

History

 pre 1880, right of Ownership extended below the surface except in case of Gold or Silver

 Post 1880 and Mining Act, extended past gold and silver

 1982, legislature proposed to eliminate all distinction b/n minerals below the surface

• 
  Leaves very little to the owner (S.5 of the Act)
  

Can grant right to somebody to extract minerals from the land of another

• 
  Gives the owner of the mining rights, the right to expropriate the owner of the surface
  
• 
  Gives right to owner of the land, in the event of exploitation, of 3-5% of revenue of exploitation  not expropriation
  
  • 
    Cantin Problem  Law that revoked earlier rights of the owner to the minerals under the soil is “questionable”
    
  • 
    with abolition of seigneurial tenure does not allow for revocation by crown of a right of ownership. Must be expropriation or by confiscation by legislation. This Act goes around it by revoking right.
    
  • 
    State must have a basis for the revocation  only basis would be eminent domain which the state gave up.
    
  • 
    What is revoked is substantial part of right of ownership
    

S. 4 – State Ownership of Land (or Public Domain)

(915-920, 951, 2877)
Public Domain: Prop of the state, public legal persons (used to be crown corps) and prop of the municipalities
Public Legal persons and municipalities: art 299-300

Not seizable, not susceptible of hypothec, not susceptible of prescription

• 
  Civil concept of public domain means that there is NO CONCEPT OF VACANT LAND – because Art. 918 allows for 3 possibilities of ownership:
  

(i.) by natural or legal persons;

(ii.) transferred to trust; or

(iii.) Crown.

Cantin Problem: thinks that 918 shows a strange treatment of the trust when compared with 915

Art 916

Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law. No one may appropriate property of the State for himself by occupation, prescription or accession except property the State has acquired by succession, vacancy or confiscation, so long as it has not been mingled with its other property. Nor may anyone acquire for himself property of legal persons established in the public interest that is appropriated to public utility.

• 
  Nec. Established by special statue which creates them e.g. Hydro and Caisse
  
• 
  Mixture of Private and Public Law (mixture of English and French)
  

Hydro-Québec Act Art 3.1: Joint stock company (Separate legal person according to Art 2188(2) of CCQ) Art. 3.3: The shares of the company are part of the domain of the State and are allotted to the Minister of Finance Art 13: The company is a mandatary of the state (Cantin – Why make it a legal person and then make it mandatory of the State?) Art 14: The company shall have power to possess property, and such power shall be unlimited. – The property of the company is the property of the state Art 31.3: The property in the possession of the company is imprescriptible in the same way as the property of the domain of the State. This provision does not apply to debts owing to the company or for which it is liable, which are subject to the ordinary provisions of law.

• 
  Cantin Problem  obligations against prop of Hydro as a separate legal person but Hydro is prop of the state  Back and forth  weird in Civil!
  
• 
  Imprescriptible like prop of the state but then provision does not apply in case of debts (give it then take it away)
  

An Act Respecting the Caisse de Dépot et Placement du Québec

Art. 4 : The property belonging to the Fund shall be the property of the state but the performance of the obligations of the Fund may be levied against such property

Case: Batiments Kalad’art

Les Bâtiments Kalad’art inc. v. Construction D.R.M. inc. [2000] C.A. Que
Facts: D.M.R contracted to construct Warehouse for sel et sable for the ville de Rimouski Kalad’art supplies the material and gets legal hypothec on warehouse for payment of materials Suppliers of materials are usually protected by giving a legal hypothec to guarantee payment (art 2726) Hypothecation depends on seiability of the immovable Issue: Despite the hypothec, is the immovable unseizable as the immovable is for public utility (per art 916(2)?	Decision: Appeal dismissed  despite hypothec, immovable is unseizable as immovable is essential for public utility Ratio: Art 916 (2) (above) Wide interpretation of 916 Even if it is true that the warehouse is not essential to the functioning of the municipality, it is linked to the furnishing of a service that is essential to the municipality Second Judge: Calls for legislature to clearly outline the law in question so as to ensure creditors who supply municipal buildings of their guarantees
Notes: Art 916 of CcQ continues from CcLC which divided into public municipal domain (prop appropriated to public utility – public law applies and is therefore not siezable) and Private Minicipal Domain (not appropriated for public utility – Private law applies and is seizable )