CAN YOU SWING IT? CRANE SWING AGREEMENTS — ARE THEY NECESSARY?

We are told that it was Accursius of Bologna (1182-1260) who first uttered this legal observation "Cujus est solum, ejus est usque ad coelum, et ad inferos", meaning "Whoever has the land itself, his also is everything up to the vaults of Heaven and down to the floor of hell."

This Latin maxim, which has been reduced in legal jargon to "Cujus est solum", has been adopted over the centuries as an accepted legal basis for an action in trespass if someone's land rights and air rights are interfered with in any way or utilized by someone without right or authority.

Modern modes of transport i.e. aircraft, and modern modes of construction i.e. construction cranes, have necessitated over the last century, a revisiting of the "Cujus est solum" maxim in order to balance property rights with public rights.

Moreover, characterizing the use of a crane swinging over someone's property as trespass as opposed to a mere nuisance, can be the difference between having an injunction issued against the builder as trespass, and merely an award of nominal damages made if it is an action in nuisance.

The concept of ownership of air rights to the sky has long been reduced to a height only necessary for the land owner's reasonable use only. The air space above that becomes public domain. See Lord Bernstein in Leigh v. Skyviews & Gen. Ltd.'

In Didow v. Alberta Power Ltd.,² Haddad J.A. adopted the trial judge's agreement with Lord Bernstein in the Leigh v. Skyviews' case. The law is now clear in Canada that there is a limitation for private air space above one's property.

Nonetheless, crane swings over adjoining property have been consistently held to interfere with private air space. The cases have grappled with characterizing this type of interference as being either a nuisance or trespass, with the determination being quite significant to the builder.

The two most commonly cited cases in Ontario are the Lewvest v. Scotia Towers Ltd.³ ("Lewvest") and Kingsbridge Development Inc. v. Hanson Needler Corp.` ("Kingsbridge"). Although they do offer some considered commentary on the issue, they do not settle the matter wholly. Other cases and criticisms diverge from the principles of these cases, and the advice derived for developers and solicitors therefrom may not be as straightforward as it would seem.

Lewvest and Kingsbridge cannot settle the matter since, to begin with, they are at odds with one another. Whereas Lewvest accepts the principle that an action for air space violation can be properly framed in trespass, and therefore an injunction can be properly granted, Kingsbridge holds that the action cannot be a trespass, and the action is a nuisance instead. The reasons for this divergence of opinion (apart from the jurisdiction) are understandable. It was difficult for the judge in Lewvest to accept that damages ought to be available or that a court could grant licence for one party to use another's property. The judge had no trouble granting a strict injunction. On the other hand the judge in Kingsbridge had difficulty accepting that the latin cujus est solem maxim was applicable to air space the owner could not reasonably use. Particularly where the plaintiff could demonstrate no incurred harm, intrusion to this unused air space is a nuisance, and damages could compensate adequately.

The case which underlies both of these, and other seminal cases on air space ownership is an English Chancery case from 1970 that has been picked up by several Canadian judges, most notably Haddad J.A. in the Didow case. The decision in this case, Woollerton and Wilson Ltd. v. Richard Costain Ltd.⁵, is essentially a compromise between the two positions in Lewvest and Kingsbridge. The court held that while an action for damages was improper where the plaintiff had suffered no harm, the fact that the air space had had no value prior to the dispute meant that a strict application of cujus property rights was inequitable. The judge therefore ordered a delayed injunction, allowing building to finish first. This has been the strongest court decision to date in favour of the builder. Essentially, the judge in Woollerton held that while it was a trespass in the strictest sense, and the law has a duty to prevent such incursions, the plaintiffs were being unreasonable, irrational and selfish, and equitably didn't deserve to halt a commercial project for no reason.

There has been a modest amount of commentary on these three cases, their interrelationship, and what it means for the issue of air space incursion in Canada.

Professor J. Robert S. Prichard argues that the significance of the decision in Woollerton, from which other Canadian cases have diverged, is that the defendant builder in that case tried to negotiate with the plaintiffs beforehand for use of the air space. The plaintiffs were offered a nominal amount for air space they were not using. When they refused and tried to ransom their property rights for a considerable sum, the ensuing disregard and trespass by the builder was more equitably justified. While Prichard highlights the court's insistence that contractors not do this in the future, it seems that Woollerton holds that offering token compensation for the trespass will indemnify the builder from a strict injunction.

Prichard writes, "The emphasis on the previous offer in Woollerton suggests that a defendant may be able to improve his position substantially by being forthcoming at an early stage, and that the plaintiff might run some risk by not accepting a reasonable offer."

Garry Watson (of Holmested and Watson) does not discuss Lewvest or Woollerton, but picks up on the point in Kingsbridge regarding what he rightly terms a `balance of convenience.' In reference to other ownership and property/air space rights, he also terms it a `balance of equities.' Essentially, the principle is that the interests of the law in upholding basic property rights, even those as uncertain as air space rights, must be balanced against the inconvenience and inequity of unnecessarily restraining construction. This is analogous to the balance found in Woollerton.

Watson writes that "the public's interest in using air space above an owner's land has to be balanced against the interest of the owner in the land ... the balance of convenience favoured the defendant since there was no evidence of past harm or impending harm.⁶

Commenting on these issues in the more recent Ontario case of Vaz v. Joni, Sutherland J. wrote that "There are, however, circumstances in which to grant an injunction would be to leave one party at the mercy of extortionate demands by the other unless he was to give up his project altogether ... the discretion to substitute court determined damages does, however, provide a desirable element of flexibility for those cases where to simply grant an injunction, or to simply refuse one, would work an injustice."

Sutherland also cites the Woollerton case, and indeed his willingness to remain open to finding a middle ground between issuing an injunction and allowing violation of property rights is in the spirit of the English decision. Where Woollerton decided the best middle ground was to issue a cheeky delayed injunction, Vaz decided the best middle ground is court determined damages. This raises the same issues as Watson and Kingsbridge, however.

Sutherland goes into a lengthy commentary on the general ideas of the issue, but does not come to an express conclusion. The bottom line from his commentary is that in Ontario, the Kingsbridge decision remains the guiding case, and courts ought to ignore the strict injunction of Lewvest, or the delayed injunction of Woollerton.Other provinces generally follow the same attitude as the judges and critics cited thus far: a general disdain for stubborn or unreasonable plaintiffs, sympathy for exasperated or trapped defendant builders, and grudging acceptance that there must be some form of justice in the name of property rights. McKay J. in the B.C. case of Messina v. Arena Developments Ltd.⁸, the facts of which included inter alia a crane boom trespass, said the following. "I have some sympathy for the principals of Arena — but there can be no question that they acted in a highhanded manner. They deliberately took the law into their own hands. They knew that they had no permission to do what they did — in fact they had been refused permission in early 1982. They made no attempt to try and reach an agreement when they embarked on construction in late 1983. Such an effort would probably have been futile but it should have been made. I agree that the plaintiffs were unreasonable but they were, at law, entitled to be unreasonable."

McKay followed the damages route, using the Kingsbridge approach that public interest is paramount, and builders should not be restrained by unreasonable plaintiffs. However it is interesting to note McKay's pick-up of the negotiation point. He does not actually cite any of the other cases, but he does note the same point that Woollerton notes — that an attempt at negotiation is of some significance. McKay plainly acknowledges that attempting to reach an agreement would have been useless as the plaintiff would never have agreed. Yet McKay holds that "it should have been made." This suggestion picks up on the Woollerton notion that an attempt or offer of compensation somehow mitigates future liability for trespass.Though writing before Kingsbridge, in 1986, critic John Irvine reads heavily into this aspect of Woollerton.

He writes, "Stamp J. placed great stress on the fact that compensation had been offered by the defendants, but rejected by the plaintiffs who stubbornly sought a "higher ransom," to which they evidently thought their strong legal position entitled them. The learned judge, moved by the plaintiffs' intransigent and dog-in-the-manger stance, recognized the trespass but in exercise of his equitable discretion postponed the injunction to take effect at a date by which the defendants would have finished with the crane!"

All in all, it is still not conclusive whether an action for crane trespass is actionable in trespass, nuisance, or somewhere in between. Courts have shown themselves to be open to compromises between the parties on the complicated issues herein, but the nature of those compromises have differed, and may depend on the facts of each case.

When read altogether, an idealistic way to look at these decisions and commentary is that when faced with a helpless, ransomed defendant builder and an intransigent, extortionist plaintiff, courts will endeavour to find middle ground. The English and B.C. decisions would suggest that where the stubbornness of the plaintiff is especially spiteful, as where they refuse a nominal but reasonable offer of compensation or refuse to negotiate, the court would mitigate any damages awarded, or at best, follow the Woollerton model and award a delayed injunction.

What does this mean for solicitors and those representing the builder clients? What is the best way of proceeding with inevitable crane trespass in the light of these decision and commentary? Prichard puts it best.

"Given the right facts, one might expect that a court could be persuaded, Lewvest notwithstanding, to experiment with further modifications to defeat the claims of a particularly obstreperous, insistent or unreasonable plaintiff in a case involving building cranes and air space. Alternatively, the delayed injunction used in Woollerton could effect the same result. In the meantime, however, lawyers acting for developers and large contractors should recognize the financial risks involved in failing to secure all relevant permissions prior to initiating a building project."

The best thing to do, it seems, is to offer a small but real compensatory amount to the adjacent owners in exchange for written permission to intrude into the air space. Where they do not agree, attempt to extract more, or insist on their strict rights, the mitigating efforts may prove to be the difference to a court in siding with the builder.

Query: What impact these cases should have upon the requirement of tieback agreements?

1      [1978] Q.B. 479, [1977] 2 All E.R. 902

2      [1988] 5W.W.R. 606 (Alta. C.A.).

3       (1981), 126 D.L.R. (3d) 239, 19 R.P.R. 192 (Nfld. S.C.)

4       [1990] O.J. No. 153, 71 O.R. (2d) 636

5       [1970] 1 W.L.R. 411, [1970] 1 All E.R. 483

6       Homestead and Watson, Ontario Civil Procedures. Commentary on The Rules of Civil Procedures — Garry D. Watson, Q.C.

7        32 R.P.R. (3d) 271

8        [1985] B.C.W.L.D. 3851