(Ontario Real Estate Source)
By Brian Madigan LL.B.
Boundaries ~ Legal Principles
All land has boundaries: up, down and sideways, but what are the rules and what are the limits?
You can imagine that the rules relating to the ownership of land on the surface on a horizontal plane are somewhat straightforward. The boundaries are clear. A's land abuts B's land and B's land abuts C's land. The boundary can be marked out and made clear. Surveys can be obtained and survey monuments can be placed at the corners.
The difficult matters are presented by the competing interests both above and below the surface.
We will examine the basic laws and rules that are to be taken into consideration. Do they make sense? Why did they develop and should they be changed? In any event, they are what they are, and they have arisen out of the English common law.
When we come back to the horizontal plane, some boundaries such as rivers, streams, lakes and oceans show some movement over time. Other physical boundaries such as mountain chains and canyons offer different issues in terms of boundaries.
The original law on this point was Roman and was expressed as follows:
"Cujus est solum ejus est usque ad coleum et ad inferos"
Translated from latin, it means "the owner of the land, owns all the way to the heavens and down to the bottom of the earth". The legal principle is short termed "cujus est solum". And, of course, that's the theory, but in reality it doesn't make any sense. In Roman times, buildings were often confined to 4 storeys and aqueducts below the surface were usually not deeper than 60 feet. So, all in all, it was more of a principle than anything else.
Today, airspace above the surface is important and mining rights below the surface are also important.
So, while any analysis of the law seems to go back to first principles being "cujus est solum", that statement does not truly reflect the law today.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com
