Kowal v. Ellis: A Comment
![handle is hein.journals/unblj28 and id is 204 raw text is: Kowal v. Ellis: A Comment
In Kowal v. Ellis' the Manitoba Court of Appeal was called upon
to deal with an unsettled area of the law; namely, the right of an
occupier of land to claim a chattel found lying loose on his land as
against one who claims the chattel as a finder.
Briefly, the facts were that the plaintiff took possession of a pump,
valued at $450, that was lying unattached on the defendant's land.
The defendant took the pump from the plaintiff and the plaintiff
succeeded in the County Court and again in the Court of Appeal in
asserting a superior claim to the chattel. The reasoning of the Court of
Appeal raises several questions.
In delivering the judgement of the Court, O'Sullivan J. stated, I start
from the premise that a finder of a chattel, who takes it into his possession,
becomes a bailee by finding. .... -2 The statement in itself is unassailable.
What is questionable, however, is whether this should be the premise
from which one starts. The premise presupposes that the plaintiff is a
finder and this, it seems, finesses the fundamental question; namely, is the
plaintiff a finder at all?
The defendant's claim rests on the fact that he is the occupier of
the land on which the pump was found. Certainly there is authority for
saying that . . . if something is found on that land ... the presumption
is that the possession of that thing is in the owner of the locus in quo.'3
Since the pump in question was an unattached chattel, a presumption
in favour of possession by the defendant occupier is raised, and such a
presumption is rebuttable. Failing rebuttal, the defendant can assert a
claim anterior to that of the plaintiff. The occupier's claim is that
because of his possession of the locus in quo he has possession of things
thereon whether he knows of those things or not. As one learned
author has put it:
... I control some parts of my land; in doing so, I am presumed - unless
there be evidence to the contrary - to intend to control all of it; my possession
thus comes to pervade the whole of the land, extending to things in the area of
my possession that I may not even know to exist.4
'(1977), 76 D.L.R. (3d) 546 (Man. C.A.).
'Ibid, at 547.
'South Staffordshire Water Co. v. Shanaon, (1896] 2 Q.B. 44, at 47 (per Lord Russell).
4A.E.S. Tay, Possession and the Modern Law of Finding, (1962-4) 4 Sydney L. R. 383, at 389.](ViewImageLocal?handle=hein.journals/unblj28&div=14&collection=&method=preview&ext=.png&size=3)
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Kowal v. Ellis: A Comment
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