(Ontario Real Estate Source)
By Brian Madigan LL.B.
Boundaries ~ Subsurface Issues
Below the surface there are mobility issues, so it's not quite the same as airspace.
In some cases, there is just no real access. The bedrock may form a barrier. In other cases, the bedrock is truly the asset.
Moveables Below the Surface
Water, gas and oil seem to move relatively freely in the subterranean environment. So, who owns it?
These types of liquids and gases can be removed as long as you are below your own property, even if, the result is that you might be draining the same liquid or gas from your neighbour. However, because of such a risk, oil and gas companies will require huge tracts of land to minimize the problem. This matter is now subject to strict government regulation.
Access Below the Surface
In the case of Edwards v. Sims a US superior court dealt with the matter of a cavern below the surface. The cavern was accessible through an opening on A's property, but it extended below the lands of B. The court decided that B was entitled to an injunction to prevent A from accessing the cave below the surface.
Mines and Minerals Below the Surface
Just because you own the land on the surface doesn't necessarily mean that you have the ownership rights to the minerals below. That is something which is now reserved to the Crown and transferred by separate grant. Usually, the grant is in the form of a lease or licence for a term of years, with the Crown constituting the remainderman or holding the reversionary interest.
So, while the surface owner acquires the airspace automatically, the subsurface rights may be deeded to another party. The practice of granting mineral rights varied over time and also varied from one province to another.
The legal definition of "mines and minerals" is interpreted in accordance with the common vernacular used by the mining industry at the time of the grant.
The mines and minerals under discussion are the ones specifically below the surface. They can be mapped out by survey in the same way as the dimensions on the surface.
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
