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Mar 2, 2009

Can You Swing It? Crane Swing Agreements - Are they Necessary?

By: Leor Margulies

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., 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. (“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.

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