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Cuius est solum, ejus est usque ad caelum et ad inferos
Latin: who owns the land, owns down to the center of the earth and up to the
heavens. This principle of land ownership has been greatly tempered by
case law,
which has limited ownership upwards to the extent necessary to maintain
structures. Otherwise, airplanes would trespass incessantly.
Land titles still considers the premise that you own ‘down to the core’
LEE PAPERS
RIGHTS OF THE LAND OWNER IN ALBERTA
Recommendations to the Alberta Government
LAWS MUST CHANGE AND BE CHALLENGED
Recommendations to the Alberta Government
1.
When
any application for a lease of mineral rights has been made, the landowner
will be notified BEFORE it is granted. At that point, before the lease is
granted, the landowner may object to the approval of the lease. A landowner
must have full disclosure of any applications made pertaining to his land
and given a fair opportunity and process to object.
2.
The
board is to be set up through the Ombudsman’s office and not funded what so
ever by the oil and gas companies, The board should be separate in all ways
to the EUB and not have any outside income from the industry. Board members
must represent all interests equally
3.
All
contracts or business dealings between a landowner and any oil or gas
Corporations are to be negotiated solely between the two parties and not
subject to arbitration by any board. These contracts are private contracts
between a non government corporation and a private landowner and any
government interferences will amount to a contract under duress which under
contract law nullifies the contract.
4.
Reports of any trespasses or violations should be investigated through the
Ombudsman's office and a committee that is not connected in any way the oil
and gas industry or the EUB. Findings will be made public, compensation paid
and fines levied to the trespasser.
5.
All
leases applied for on public lands are to be posted for public approval and
all adjoining properties notified of any oil and gas activity. Any Albertan,
that has been a resident for over a year, may object to the lease and thus
take the objection to the Ombudsman for hearing.
6.
Anyone owning connecting land to a proposed well may an objection to any
oil/gas activity to the Ombudsman's office.
7.
Grants and/or funding would be available to individuals or organizations to
promote and research alternate sources of energy.
8.
Funding for Lawyers of the landowners choosing will be made available for
the purpose of objecting to any oil/gas application
9.
Any
directional drilling from adjoining property is subject to the premise that
the landowner owns to the core and thus such drilling is also subject to
negotiations and permission by the landowner. The landowner must be notified
of any applications for lease which would involve directional drilling under
their property
10.
The Statutes of Alberta must be changed to reflect the
concerns and conclusion of this paper.
Introduction and Points for Consideration
Fifty years from now we will look back on the oil and gas industry with
contempt and disgust. We will then, sadly, have the scientific knowledge
regarding flaring, drilling, pipeline contamination, forest destruction and
the health of our children and our planet. Alternate power possibilities
have struggled against the corrupt world of oil and gas. Alternative power
sources and Legislative changes will be the only way to change the course of
the corporate oil and gas world and it‘s effects in our day to day life.
Oil companies were once small operations and most were family operations or
that of general developers. Developers like D.A. Thomas in the Peace River
country of Alberta, who drilled wells, cleared and developed land, promoted
northern railways and built a steamship.
Small entrepreneurs negotiated with farmers and landowners and thus the
local community benefited much more because the landowner made more money
and had control over contract details. Mineral rights of the landowner
became a thing of the past when the Government reserved all rights to own
and lease without consent or disclosure to the landowner.
New landowners could no longer obtain mineral rights as they were owned by
the Government and leased to foreign owned companies. The landowner lost
control over the exclusive use of his land and the government and
Corporation money train began.
Large Corporations, with heavy foreign ownership, have long since taken over
the oil and gas industry in our province and the rest of Canada. We, the tax
payer, the landowner and residents of Canada have lost control over the oil
and gas industry and with all the Government involvement we still have no
say when it is on our own land. We pay some of the highest gas and oil
prices in North America as well.
Corporations have been given tax breaks, monetary incentives and the rubber
stamp approval of any and all applications to develop the industry. Farmers
and landowners no longer have any control or choice as to the clearing,
drilling or pipeline activity on their own lands. The compensation amounts
to the landowner are the decisions between the government and the oil and
gas Corporations.
Any disagreements of compensation paid to the landowner are taken to an
arbitration board, ran, operated and funded between the Alberta government
and the oil corporations. The EUB is 75% funded by the oil companies
directly, an obvious conflict of interest and a mockery of our justice
system.
*Fees
set by the oil companies and the government, paid to the farmer or
landowner, have remained low and have been capped, disabling the normal
process of a free enterprise system of negotiation and contract. This
control of the fee paid to the landowner is an unfair fixed pricing which
prejudices the landowner.
The average 2.2 million per producing well, that the Corporation receives.
Many corporations own thousands of wells in Western Canada and the monthly
drilling list is a long one.
To fight a well is known and considered a lost cause. It is common knowledge
and statistics prove out that the EUB (Energy and Utilities Board) will deny
almost any objection to an application.
*The
Government funds the EUB only partially and the bulk of their operating
capital comes from the oil and gas Corporations – 75%.
Hardly an unbiased organization.
The whole exercise of the EUB and the thousands of objections that they deny
each year, is a supreme money train for a highly overpaid group of lawyers,
specialists, board members and experts. The landowner or organization
sometimes, upon application, is given a token for their time $500.00 -
$1000.00, if they are lucky. The Corporations and the EUB do not consider
the fact that it may cost the landowner thousands (not to mention the
emotional strain put upon families and neighbors) trying to fight the well.
The land owner’s motives to object to an oil well (that would provide
compensation to him) and stand by his values and concerns for his family’s
health and welfare and his environmental conscience should not be on trial.
Nor should they be questioned.
Where are the Canadian studies on health and sour gas flaring? Where is the
funding for health studies? Where is the funding for Alternatives Power
Sources?
Experts on water, risks, erosion etc., who, many time do not even visit the
site, punch out reports on their computer programs and are paid up to 50
thousand or more for a few pages of information that is regurgitated from
hearing to hearing. Then they are paid $2,000.00 more or less, per day, to
attend the hearings to present their reports. Much of this expert testimony
is double talk to the lay person and in investigation of one such report,
the writer found the report to be totally bogus. The information had been
obtained from an airport data base 85 miles away from the site (which he had
not visited). Many experts will show up at hearings to give testimony, all
spouting their so called expertise while the landowner is left on his own
or with a lawyer (paid by the oil company). Many of these ‘experts’ do
nothing else but go to hearings and have made highly profitable businesses
going to hearing after hearing. The Corporations know these ’experts’ and
all is understood between them. All moneys paid out by the Corporations are
just a tax receipt and good insurance. The money train is crowed.
If it were not so serious it would be a joke. In a hearing, the room is full
of people; almost all paid by the Corporation, except for the landowner.
At last viewing, of the Statistics, out of ten thousand objections only 28
were granted, many of which were appealed by the oil company and later the
decision was granted in favor of the Oil/gas company. Funding to the
landowner stops after the first hearing and no funding is provided for
appeals.. The reason for those was obscure as well, and many companies just
changed a few things and the Corporation eventually got their approval to
drill.
Too much money is floating around for those on the money train, to have
anything change. The farmer, the environmentalist the child with asthma does
not stand a chance against the slick and well-greased money train to have
their voice heard and their rights as a landowner upheld.
The constitution says we are to have peaceful enjoyment of our land.
When a family home is surround by over 250 oil and gas wells in a 6 mile
radius, and they do not have the resources to go to yet another hearing,
will they have no other choice but to give up?
Should the farmer who agrees begrudgingly, to a well, be paid such small
amount of money to give up his land, privacy, and well being?
Would farmers give in to Oil and Gas Corporations if farming was not so
unprofitable? Would he choose to have a sour gas flare near his home if he
was not so desperate to make that 5 thousand and he was paid what he was
worth as a farmer? Would a farmer give in if there were not the pressure
that the Corporations put upon communities by the Corporation offering a
contract for gravel or water to a neighbor on the condition the landowner in
question buttons up and allows the drilling?
Should a farmer not have the right to negotiate a contract with the Oil
Company at his own terms? Should a private landowner not be allowed to
negotiate without a cap on fees set out by the arbitration board?
The Oil and Gas Corporations are just those - Corporations. They are there
to make profits but the Government fixes the rate at which the farmer will
be paid for his contract with a corporate business that will make millions
from the benefit of the contract.
These contracts are unconstitutional as they prejudice the landowner and
constrain his business dealings with the Corporations. The contract yields
high profits for the Corporation and only ‘compensational’ for the
landowner. Why should a landowner be merely compensated for his land in a
business contract?
*Contracts
entered as a result of a lost hearing will be entered into ‘under duress’
and in contract law that renders the contract nullified.
The contract should not be legal because it is legislated to the benefit of
profit Corporations and not to the tax payer who owns the land and who has a
right to go into a contract for his own benefit. The landowner has no choice
and is forced into an unwanted situation while Corporations (many foreign
owned, with a Canadian branch of course) does their business with no
resistance.
Some boast that these Corporations built the west and they have convinced
some farmers that if it weren’t for them, farmers would not exist. A total
misconception. Farmers, trappers, wheat fields, cattle, explorers, and
thriving communities were all here before the development of the oil and gas
industry. The oil companies would not be here had the farmers not helped
them. Farmers struggled to survive, that is true, but it was that noble
struggle that built this country and it was that noble struggle that the
Corporations capitalized on and took advantage of, by paying bottom dollar
to the farmer, in comparison to their own payoff.
If these Corporations gave so much to the communities then where are the
communities today?
They should be thriving. But many are gone. Communities like Gordondale,
right in the middle of a very active drilling area, used to be a thriving
developing community. It began to die around the same time oil development
began and today the community is all but gone. But the oil Corporations in
the area are thriving.
It’s the same all over the province.
Countries all over the world spend millions of dollars on studies into the
affects of sour gas flaring. The evidence is out there. Will we wait for
another twenty years to accept these studies and recognize respiratory
problems, and miscarriages as a result of flaring? Will our Government study
the affects of our intrusions into our public lands by oil land clearings
and thousands of miles of seismic line cut into our forests? When we decide
to protect our forests and public lands what will be left?
Oil and Gas Corporations are granted the lease to mineral rights of a piece
of land, by a simple rubber stamp procedure without any disclosure or notice
to the landowner what so ever. The landowner has absolutely no knowledge of
what money deals are happening for the mineral rights beneath him. It is the
landowner that is the most affected on a day to day basis, by these
decisions. Months of drilling and years of having oil and gas wells,
pipelines and flaring etc. will become his life - but he is not given any
notice.
When a landowner objects to a well and jumps through all the hoops to see
through to a hearing (of course spending a lot of his time and money) and
looses, as they all do, the same argument is made, repeated and accepted by
the appointed boards. The money train relies on this.
Canadian Constitution, Canadian Charter of Rights and Freedoms
(entire text
http://www.efc.ca/pages/law/charter/charter.text.html)
LIFE, LIBERTY AND SECURITY OF
PERSON.
7. Everyone has the
right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.
It is always argued…..
THE CORPORATION OWNS A LEASE TO THE MINERAL RIGHTS UNDER THE LANDOWNERS LAND
THUS HAS THE RIGHT TO DRILL TO REALIZE HIS AGREEMENT WITH THE EUB.
THE LANDOWNER OWNS THE LAND BUT THE OIL OR GAS CORPORATION OWNS THE LEASE TO
THE MINERAL RIGHTS thus they have the right to drill.
So the board spews out, in their decisions, that all their standards they
have set, have been met and that the Corporation has the right to drill
–because they have the mineral rights. Drilling is approved. Objection
denied.
The argument is the same and so is the decision. So what is all the exercise
of a hearing about? Just a money train they have created. A make work
project. A tap-dance for public records. A monster they like and feed.
When a company directionally drills on a property they can contaminate
drinking wells and ground water, limit the landowners ability to have
geothermal heating systems – a ever growing alterative GREEN method of
heating that will further in years to come. Many landowners will be unable
to have such a system because of directional piping under them.
_______________________________________________________
Cuius est solum, ejus est usque ad caelum et ad inferos
Subsurface; Below the Surface
"No man but feels more of a man in the world if he have a bit of ground that
he can call his own. However small it is on the surface, it is four thousand
miles deep; and that is a very handsome property." Charles Warner (1871)
POINTS FOR
DISCUSSION, CONSIDERATION AND INVESTIGATION
When a landowner owns his property, what does he own? How far below the
surface and how far above?
Land titles refer to the "carrot principle" when considering how deep and
how high the landowner’s "airspace" goes.
Technically we own our land down to the core and well above we own our
airspace.
An example of owning "airspace would be a developer’s right to sell
condominiums based on ‘strata’. The actual height and measurements of where
the potential condo will reside. If your condo on the 7th floor
burnt down you would still own that ‘airspace’
Thus being the case we should have the right to protect our ‘air space’ that
we own above our land.
Corporations allowing particles from flaring, odors etc. to enter our
‘airspace’ should be sued or fined. Countries receiving such environmental
attacks would fine the offending country for polluting their airspace.
Also, for those corporations that choose to directionally drill under
someone’s land, they would still be trespassing through someone’s property.
The land underneath your surface property is ‘owned’ by you. Sure, The
government leases the oil or mineral rights but not the
land.
These avenues of accountability should be explored.
In Canada, it seems, there is no case law consensus on the exclusivity of a
landowner to the "depths of the Earth." The only precedent around seems to
be
Edwards v. Sims, which was a split decision and which dealt more
with equity than with subsurface rights.
One issue, which appears to be law in many Canadian provinces, is the
reservation of mineral rights to the Crown. Under common law and the
feudal system, the grant of land usually included all minerals except
gold and silver, which, if discovered, belonged to the Crown or land Lord.
But provincial laws have changed that in certain provinces. The rights of a
fee simple owner in Alberta are not extended to include mineral rights. In
England, all coal and petroleum belongs to the Crown. Thus, the Crown can
take advantage of its status of original grantor of the land and retained
mineral rights.
It is also possible for a private landowner, who owns the mineral rights, to
sever these rights and to sell them as a separate estate in fee simple (i.e.
capable of being sold or conveyed by
will).
Atlantic Aviation v. Nova Scotia Light & Power 1965 Dominion Law Reports 554
When Nova Scotia Power built high transmission towers on land adjacent to
Atlantic Aviation's flying school, the court battle was engaged. The court
reviewed case law that suggested that deliberate or malicious obstruction of
airspace was objectionable as a nuisance but that otherwise land owners had
a right to "erect structures on his land in the exercise of his use and
enjoyment of his land, even if the obstructions interfered with the free
passage of aircraft taking off and landing on an adjoining airfield. The
erection and use of the towers and wires by the defendant was a lawful,
reasonable and necessary use of the defendant's air space."
Cuius est solum, ejus est usque ad caelum et ad inferos
Latin: who owns the land, owns down to the center of the earth and up to the
heavens. This principle of land ownership has been greatly tempered by
case law,
which has limited ownership upwards to the extent necessary to maintain
structures. Otherwise, airplanes would trespass incessantly.
Edwards v. Sims 1929 SW 619 (Kentucky)
This case tested the maxim
cujus est solum ejus est usque ad coelum
et ad inferos.
A court ordered an inspection of a person's land for the purposes of
clarifying an action in trespass brought by a neighbor. The court accepted
the maxim. "Ordinarily that ownership cannot be interfered with or infringed
by third persons. There are, however, certain limitations on the right of
enjoyment of possession of all property, such as its use to the detriment or
interference with a neighbor." The court drew an analogy with mine cases
where it had been able to force an inspection and so it was ordered here.
Cuius est solum, ejus est usque ad caelum et ad inferos
Latin: who owns the land, owns down to the center of the earth and up to the
heavens. This principle of land ownership has been greatly tempered by
case law, which
has limited ownership upwards to the extent necessary to maintain
structures. Otherwise, airplanes would trespass incessantly.
We are
governed by common law….
Cuius est solum eius est usque ad coelum et ad inferos
From
Wikipedia, the free encyclopedia
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Cuius est solum, eius est usque ad caelum et ad
inferos (in
English, for whoever owns the soil, it is theirs up to the sky and
down to the depths) is a
Roman legal principle of
property law that was passed down to
common law and
civil law systems. As the name describes, the principle is that a person
who owns a particular piece of land owns everything above and below it as
well. Consequently, the owner could prosecute
trespass against people who violated the border but never actually
touched the soil. As with any other property rights, the owner can sell or
lease it to others, or it may be taken or regulated by the State.
For example, suppose three people owned neighboring plots
of land. The owners of the plots on the ends want to build a bridge over the
center plot connecting their two properties. Even though the bridge would
never touch the soil of the owner in the middle, the principle of cuius
est solum would allow the middle owner to stop its construction or
demand payment for the right to do so.
By the same principle, a person who wants to
mine under somebody's land would have to get permission from the owner
to do so, even if the mine entrance was on neighboring land.
The phrase was first coined by
Accursius of Bologna in the 13th Century.
In Lord Bernstein of Leigh v Skyviews & General Ltd
[1978] QB 479, the Court noted that the phrase was 'colourful', but said
that it was well settled in the common law that a land owner had rights in
the air immediately above the land, extending in particular to signs
overhanging from adjacent properties. The right did not extend though to
more than was 'necessary for the ordinary use and enjoyment of the land and
structures upon it'. Planes, hot air balloons, and the like, would not
commit a tort of trespass by merely passing over a person's property.
The property right to air superincumbent to land was
confirmed in Kelsen v. Imperial Tobacco Co. [1957] 2 QB 334, where a
sign erected on a building that overhung the plaintiff's property committed
the tort of trepass, even though no harm or nuisance was caused by it. An
injunction was granted to the landowner causing the sign to be removed.
After a lost objection must a
landowner then go into an agreement with the oil company? WHY DO THEY CALL
IT COMPENSATION? Do they already realize any contract is entered into
unwillingly?
Although hard bargaining occurs legitimately in
commercial contracts, duress may be in the form of breaching an existing
contract between the two parties unless the innocent party agrees to enter
into another contract. The contract is voidable if the innocent party can
prove that it had no other practical choice (as opposed to legal
choice) but to agree to the contract.
The Elements of Economic Duress (breakdown):
1. Wrongful or improper threat: No precise definition of what is
wrongful or improper. Examples include: morally wrong, criminal, or tortuous
conduct; one that is a threat to breach a contract "in bad faith" or
threaten to withhold an admitted debt "in bad faith."
2. Lack of reasonable alternative (but to accept the other party's terms).
If there is an available legal remedy, an available market substitute (in
the form of funds, goods, or services), or any other sources of funds this
element is not met.
3. The threat actually induces the making of the contract. This is a
subjective standard, and takes into account the victim's age, their
background (especially their education), relationship of the parties, and
the ability to receive advice.
4. The other party caused the financial distress. The majority
opinion is that the other party must have caused the distress, while the
minority opinion allows them to merely take advantage of the distress.
NOTE: when
the government or corporations pay ‘COMPENSATION’ to landowners and the
landowner is not in agreement of the amount that infers a torte has been
paid off. Perhaps a civil suite for compensation might test this premise.
http://en.wikipedia.org/wiki/Damages
LETTER TO
THE EDITOR RYCROFT SIGNAL
Property
rights at risk
Tuesday February 06, 2007
Letter to the
Editor,
Ray Strom, a farmer from Two Hills, is charged with impersonating a licensed
land agent after accepting money for advising farmers in talks with three
giant energy companies between October 2002 and November 2003. If convicted
he could face a fine of up to $5,000 or six months in jail.
His trial, on Jan. 5-6, brought into question provincial legislation that
says only licensed land agents can accept a fee for giving advice to
landowners during negotiations for compensation for the use of their land.
Strom, who doesn’t have a land agent’s license, works as an advocate for
farmers.
Following the trial, Strom said, “Ultimately the question is not whether a
land agent has the right to work for the landowner, the dispute lies in the
fact of whether the landowner has the right to choose their representative.”
What is happening to Strom has great implications for all landowners,
farmers and ranchers. If the court finds Strom guilty of having impersonated
a land agent, landowners may be deprived to having the right to choose whom
they would ask for assistance, advise or representation during negotiations
with oil and gas companies. Limiting a landowner’s right to seek assistance
would serve the purpose of isolating farmers and landowners so that they can
be further victimized by large corporations.
People have the right to choose whether they wish to have someone assist
them in their negotiations and apprise them of their rights and what they
need to be aware of -- the land agent is not required to do this. In fact,
land agents are prohibited by law from doing anything that conflicts with
the interests of their client -- the company.
Land agents are working for their clients -- the oil and gas industry -- to
acquire an interest in a farmer’s land. Their objective is to acquire this
land for as little money and as few obligations as possible. There is no
legal requirement for a land agent to obey EUB or Alberta Environment
legislation, or even be informed about it, let alone fully inform landowners
about their rights and options.
Landowners have a responsibility to worry about more than the amount of
financial compensation involved with a well site or pipeline. As stewards of
the land, there are also many issues related to environmental impact, soil
conservation and project planning that they ought to focus on. The land
agent is most likely not concerned or familiar with environmental issues and
people may have their valid concerns dismissed or disregarded. Once they
have signed a contract, there is very little that a landowner can do to
practically and effectively address problems which frequently occur in
conjunction with oil and gas development. It is crucial that they address as
many contingencies as possible prior to entering into any binding legal
agreements.
Landowners should ask themselves the following questions: why is there such
concern from industry about persons who are not licensed land agents
assisting landowners? Who stand to benefit if I am not able to hire someone
of my own choosing to advise and assist me during negotiations?
The judge in the case, Judge P. Ayotte, indicated that is was his
responsibility to interpret the laws and stated that it was the
legislature’s responsibility to change the laws. He intends to deliver his
verdict on March 30, 2007.
Iris Evans, Minister of Justice, has indicated that a review of legislation
may be in order. Now is the time for landowners to make their voices heard
if they don’t wish to have their property rights further endangered and/or
abrogated by the oil and gas industry.
Bernadette Haywood
Property
and the constitution paper
book on property
*NOTE:
WHEN AN OIL COMPANY RUNS THEIR FLARES AND SPEWS SMELLS AND CHEMICALS
INTO
THE AIR OR SIMPLYDISTILLS FEAR INTO US FOR OUR FAMILY THEY HAVE IN FACT
ASSAULTED US.
WHEN THE
ACTIVITIES OF OIL AND GAS COMPANIES DISTURB OUR LIVES, OUR FINANCES
AND OUR
PEACE OF MIND THEY HAVE CONTRAVENED OUR BASIC CHARTER OF RIGHTS AND
FREEDOMS
TO ENSURE WE HAVE THE RIGHT TO PEACEFUL ENJOYMENT OF OUR LAND
Bill 57 2006
An Act to amend
the Expropriations Act
and t
PART I.1
LAND RIGHTS
Rights and responsibilities
9.1 (1)
Every person has a right to the peaceful enjoyment and free disposition of
his or her land, except to the extent provided by law.
Moral responsibility
(2) In addition to whatever duties are specified by
law, every person has the moral responsibility to ensure that his or her
land
is maintained to a presentable standard in keeping
with such factors as the legal uses to which the land is put and the
character
of the community in which the land is located.
Respect for private land and home
9.2 No one
may enter onto another person's land or into another person's home, whether
or not the person is the owner
of the home, or take anything from the land or home
without the person's express or implied consent, except to the extent
provided by law.
Commencement and Short Title
Commencement
THE LAWS
MUST CHANGE AND BE CHALLENGED
wendy@moosecreekcenter.com
Comment:
Please copy at will,
distribute at will,
make suggestions, share your story, add contacts,
get on email list, sign petitions for Government consideration of
recommendations thanks
Email or mail petitions to your local MLA or
Wendy Lee
Box 58
Gordondale, Alberta. TOH 1VO
wendy@moosecreekcenter.com
IF YOU ARE A LOBBYIST PLEASE GO TO
http://moosecreekcenter.com/the_lobbyist.htm
FOR SUPPORTING
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