Property, according to its relation to other property, is divided into capital, and fruits and revenues
Art 909
Property that produces fruits and revenues, property appropriated for the service or operation of an enterprise, shares of the capital stock or common shares of a legal person or partnership, the reinvestment of the fruits and revenues, the price for any disposal of capital or its reinvestment, and expropriation or insurance indemnities in replacement of capital, are capital.
(2) Capital also includes rights of intellectual or industrial property except sums derived therefrom without alienation of the rights, bonds and other loan certificates payable in cash and rights the exercise of which tends to increase the capital, such as the right to subscribe to securities of a legal person, limited partnership or trust.
Art 910
Fruits and revenues are that which is produced by property without any alteration to its substance or that which is derived from the use of capital. They also include rights the exercise of which tends to increase the fruits and revenues of the property.
(2) Fruits comprise things spontaneously produced by property or produced by the cultivation or working of land, and the produce or increase of animals.
(3)Revenues comprise sums of money yielded by property, such as rents, interest and dividends, except those representing the distribution of capital of a legal person; they also comprise sums received by reason of the resiliation or renewal of a lease or of prepayment, or sums allotted or collected in similar circumstances.
Capital: The substance of the right
Fruit and Revenue: What is produced by the substance without any (ok, maybe a little) alteration of the substance of the right (ie the capital)
Fruit natural fruit by the land
Revenues Former civil fruit money produced, rents, income, interest, dividends, etc.
Crucial when in a situation where a use only is granted (right to the fruit/revenue) with only a use of the substance (capital) usufruct or emphytusis
Distinction comes into play
usufruct, trust in most cases and leases in some cases
usufructuary may use land for fruit agricultural operations (art 1140)
usufructuary cannot deal with the capital (ie cannot get minerals from ground as is not fruit but rather capital
what beneficiaries entitled to under a trust
Note that fruit/ income that is not used becomes capital (909)
E.g. of agricultural animals: if milking cows, capital; if beef cattle reared for sale, fruit.
Apportionment of profit & expenditure: 1345 - 1349 should be read in conjunction with 908 - 910 (situations involving administration of another’s property)
Intellectual rights can give income but:
but you retain your moral right (copy right act)
moral right passes on to the heir (says so in copyright act)
Intellectual rights can be capital or income
capital – selling your intellectual property for a lump sum (alienation of intellectual rights)
income – receipt of percentage of sales of book (no alienation)
S. 2 – Fungible / Consumable
(1453(2), 1127, 1128, 1305(2), 2314)
deals with material objects
Fungible: Not determinate May not be the object of a real right as is not determinate object (cannot be a “Volvo” unless identified through specific serial no.) (see Art 1453(2) which says “The transfer of a real right in a property determined only as to kind vests the acquirer with that right as soon as he is notified that the property is certain and determinate.”
Non-Fungible: Determined object eg. wheat is bought when is separated and determinate
e.g. of Fungible by destination will which gives usufruct of portfolio. Can manipulate the shares, sell (but then must replace), losses, gains etc. The Portfolio is considered indeterminate object and manipulation within said portfolio is allowed.
Consumable:
Disappears on first use
Impossible for their to be a usufruct as usufruct must maintain object. Not possible. Usufructuary will be viewed as owner with obligation to hand over value of object at the end of usufruct quasi-usufruct
Art 1127 re consumability and usufruct
Non-Consumable:
Does not disappear after one use
Could deteriorate over time with lots of use gradually loses its value
Usufructuary and the latter 1128 (eg furniture and car normal use and then either hand back in condition or, if disappear, not hand back at all. No obligations)
S. 3 – Things in Commerce, res nullius, res communes
(913-914, 916, 934-946, 1212-1217, 2876) A. Things in Commerce
Art 2876
That which is not an object of commerce, not transferable or not susceptible of appropriation by reason of its nature or appropriation may not be prescribed
Property in commerce: property that is alienable. (patrimonial rights are alienable and transferrable while extra-partrimonial rights are inalienable)
General rule in civil law is alienability of property. Clauses stipulating inalienability are of an exceptional nature, can only exist within a gratuitous K (inot in a K of sale). Gift or will.
Art 1212
(1) No restriction on the exercise of the right to dispose of property may be stipulated, except by gift or will.
Property can be made inalienable by statute. example, cultural property act. (it is not absolute inalienablity, permission must be obtained from minister to inalienate property)
B. Res nullius:Things which can be appropriated, but which belong to no one. Divided into 3 categories:
Things which have never been appropriated e.g. fish in the sea – Art 934
Things which have been abandoned by their owner e.g. a treasure (art 938)
Things which have been lost or forgotten.
Art 915
Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose.
Art 935
A movable without an owner belongs to the person who appropriates it for himself by occupation.
(2) An abandoned movable, if no one appropriates it for himself, belongs to the municipality that collects it in its territory, or to the State.
Art 936
An immovable without an owner belongs to the State. Any person may nevertheless acquire it by natural accession or prescription unless the State has possession of it or is declared the owner of it by a notice of the Public Curator entered in the land register.
C. Res communes: Things which cannot be appropriated (neither by the individual nor by the State), since their use is common to all. 913 C.C.Q. affirms this.
Water, air are traditional examples. (also intellectual works after the expiration of the droits d’auteur)
Implies that no one can prevent others from using these objects.
As a matter of public policy, State has a power of administration (not a ‘right’ of ownership) over the res communes. This derives from its duty to promote the common good.
585 CCLC, the res communes was defined as things with no owner and common to all. Less precise, things many NOT be appropriated.
951(2) Ownership of the soil carries with it ownership of what is above and what is below the surface. How does this sit with the notion of air as res communis?
S. 4 – Legal Characterisation of Water
(913, 919, 920, 951, 980-982) Keep the water separate from the water course (art 920) and riverbed
Interest in the water here.
Art 919 bed and banks belong to state if navigable and floatable
Art 913
Certain things may not be appropriated; their use, common to all, is governed by general laws and, in certain respects, by this Code.
(2) However, water and air not intended for public utility may be appropriated if collected and placed in receptacles.
Commentaire du minister on Art. 913
The first line of this article is inspired by article 585 from the Civil Code of Lower Canada. The second line creates an exception to the principle of the first line, looking to cover the cases such as those of mineral water or of compressed air.
CCLC 585
There are things which have no owner and the use of which is common to all. The enjoyment of these is regulated by laws of public policy
Rights to water is limited to use (cannot appropriate or sell)
Look at way fresh water may be found in nature
Art 913: When is it not intended for public utility? Problematic
Eg. Look to mineral water companies permits to draw from underground source art 913 provides for this
In principle, state does not have capacity to give permit for commercial exploitation of running water, unless water could be characterized as being on state land.
Note if a state wanted to use water for public consumption located on someones land. It would have to appropriate the land.
1) Water course (lakes rivers)
In code: art 981-982:
Seen as res communis
See Morin v. Morin
Art 981
A riparian owner may, for his needs, make use of a lake, the headwaters of a watercourse or any other watercourse bordering or crossing his land. As the water leaves his land, he shall direct it, not substantially changed in quality or quantity, into its regular course.
(2) No riparian owner may by his use of the water prevent other riparian owners from exercising the same right.
2) Spring or completely enclosed within land
Art 980
An owner who has a spring on his land may use it and dispose of it.
(2) He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care to preserve their quality.
(Cumyn thinks this does not mean sell, but this is only an argument).
Is it res communis or appropriated?
Some say ownership of water
2nd para “He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care to preserve their quality.
May use it and preserve quality and quantity sounds like art 981
This water is not being characterized as part of res communis. However, Art 982 is then confusing: says that owner may require the destruction/ modification of works to prevent water from being polluted or ‘used up’.
May be that 982 would allow one well owner to object to actions of neighbouring owner who is unduly depleting supply.
Art 982
Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water, underground stream or any running water may, to prevent the water from being polluted or used up, require the destruction or modification of any works by which the water is being polluted or dried up.
3) Underground water
Not anything in code
Water is interconnected to fresh water wherever it is found
Sheer notion of common pond extending underground across several properties suggests that one’s use should not interfere with another’s.
Note though Art 951 State has ‘right’ in mines, sheets of water and underground streams. A puzzling addition – from whence does the ‘right’ derive?
Cantin: Must be limits to these riparian rights; suggests limiting it to use of water for service of property. Commercial use would then be deemed excessive.
Cantin Cumyn, L'eau, chose commune: un statut juridique à confirmer
Le statut juridique de l'eau souterraine, en particulier, represente aujourd'hui un enjeu economique et social majeurs, alors son captage à des fins de commercialization est envoie de devenir une activité économique de plus en plus convoitée et qu’en même temps les citoyens prenne graduellement conscience de son caractère vital pour la collectivité qui en depend.
Il est de tradition, en droit civil, de considerer que l’eau et l’air sont des choses communes…
CC est en désaccord avec les deux propositions suivantes: on pretend souvent que l’eau de source, qui n’est pas la tête d’un cours d’eau, et l’eau faisant partie d’un lac ou d’un étang situés sur un seul fonds échappent à la qualification de chose commune et appartiennent en propriété exclusive au propriétaire du fonds. (article 980 CcQand 502 CcBC)… Certains vont plus loin encore et assimilent l’eau souterraine à la source: puisque la source appartient, selon eux, au propriétaire du fonds, il en irait de même de l’eau souterraine qui l’alimente.
Eau comme res communis
être res communis, ca veut signifier être à la fois inappropriée et inappropriable
Les droits individuels d’utilisition de l’eau – soit pour besoins dits ordinaries, besoins alimentaires ou autres fins domestiques et l’exploitation agricole d’un fonds – ne sont pas intrinsèquement lies à la propriété d’un fonds. (article 980 CcQ, 503 CcBC)
L’État joue un role de protecteur de l’intérêt général.
L’eau a une nature fondamentalement différente de celle des resources naturelles minerals avec lesquelles on a malencontreusement fréquemment tendance à l’assimiler. Les mines font l’objet d’un droit de propriété de l’État ou des particuliers.
La regle qui privelegie le propriétaire du fonds en excluant aux tiers l'utilisation d'une source d'eau, il est implicite que cette eau a un faible debit et que le droit d'utiliser la source par un tiers auturiserait une atteinte trop importante au droit de propriete de fonds.
Il n’y a pas de base scientifique qui justifie une distinction juridique entre eaux de surface et les eaux souterraines… Copmte tenue de ces données et de l’absence d’une determination légale expresse du status des eaux souterraines, il serait inadmissible que l’analyse juridique ne se fonde pas sur la nature des choses. Cette nature dicte au droit de donner la même qualification de chose commune pour les eaux souterraines et les eaux de surface.
L’article 913 du Code recommait que l’eau doit être reconnuecomme chose commune, n’importe sa forme.
Case: Morin v. Morin
Morin v. Morin [1998] C.A. Que
Facts:
JC Morin buys land and floods part of it from 2 rivers and an underground source – creates lac Morin
Marc Morin buys property on side of lake and starts to use lake
Lake is considered “ni nanvigable, ni flottable”
JC ownes bed of lake
Marc puts in floating dock, swims, boats.
JC claims, as owner of the bed, sole right to use lake
Issue:
Does owning bed of lake stop others from using lake riparian owners access issues
Decision:
Rights to use water cannot be owned. JC retains fishing rights, though.
Reasoning:
Water as common property (art 913 and 920)
Allows for access and usage of water for recreation (eg canoe)
Ratio:
This decision clarifies water in any type of water course is res communis even if state does not own bed or if not navigable or floatable
Clarifies allowance for usage of common water for recreation and sport. Water is common
Notes:
Only thing that limits use is fishing which depends on the owner of the bed
JC Morin’s thesis would indirectly imply the recognition of temporary property of water as a result of private water beds. The accumulation of water over the land of an individual would give that individual more rights than those of the riparian owners, rights so extended that they would exclude those of others. This would make water a private, rather than common, thing.
Musings: is it possible for someone to make a commercial exploitation of water? A categorization of water as a res communis assumes that it cannot be appropriated (s. 913). First you have to ask what s. 913(2) means. Is it restricted to a certain kind of water- like mineral water? And does appropriation in this context still limit that to personal consumption? Look at the degree of appropriation relative to each body of water. One argument is that it may be possible if it does not interfere with the rights of other owners, thereby not violating 981. Eg’s. Underground water is appropriated as part of land, the water body may be found wholly on your land. Counterarguments: is not likely with respect to lakes and ponds as commercial use is not a NEED as per s 980(2) - here it appears that rights are limited to to use and service of land, otherwise go beyond the rights of others. Need to be equal rights. 980(2) introduces an element that not there before. Commercial exploitation is probably not possible for running water (981) without legislative change, but appears more viable wrt underground water (951). What about springs found entirely on your land, which you can own, use and dispose of ? (981)
