Wednesday, March 3, 2010

Water case law in Québec 1: the undead property of water


A recent decision by the Québec Superior Court, Laflamme v. Laflamme (in French), declares the Plaintiff proprietary owner of the water in a lake (the bed of the lake is owned by the Defendant) through acquisitive prescription applicable to immovables (see section 2875 and ff Civil Code of Québec (CCQ)).

This decision construes surface water as an object of property in Québec, an more particularly immovable property. This is in direct contradiction to the text of the law and to the near unanimous doctrine on the subject (see section 913 CCQ and doctrine here (in French)), that characterises water as a res communes to which property is not applicable.

It feels like property over water in Québec is like a zombie - you keep on shooting it but it keeps coming back at you.

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