other words, the claimant of res derelict or res nullius must provide clear and
satisfactory evidence, which firmly establishes the ground that the property so
claimed, has been abandoned. Because it is observed that quite often, non-use or
the lapse of time is not sufficient to render a property as abandoned.
88 If that is the
case, then the burden of proof will lie on the finder to demonstrate that the property
was indeed legally abandoned in accordance with the principles laid out in the
doctrine of abandonment. As such, the finder must take definite steps to establish a
concrete claim and use certain facts, such as the period of abandonment, non-use,
discontinuance in tax and other relevant payments, and proceed to weaken the
natural link between the owner and the property or thing. Similar principles are
observed in maritime law where judges adjudicate in salvage and wreck cases
whereby the intention of both parties are examined and considered to estimate
whether there has been a legal abandonment on the part of the owner.
2.4.1 Legal Abandonment
When a property, whether real estate or a ship is abandoned—there tends to be a
void. The abandoned or permanently and intentionally relinquished property tends to
float in legal vacuity. Although this relinquishment is a “question of fact”,
89 the law
88 See Strauch v Coastal State Crude Gathering Co., 424 S.W. 2d 677: the non-use of an easement
for 22 years was not sufficient to ascertain the intention of abandonment. See also Morgan v Fox,
536 S.W. 2d 644: unused oil field equipment on a leased premises for 4 years after the expiry of the
lease did not render those equipments as abandoned. But see Armory v Delamirie [1722] EWHC
J94, (1722) 1 Strange 505: the main question was—does a finder have a property right over what is
found against others? It has been held that the finder has a property right that is not concrete so as to
raise his right to an owner’s right. However, the new right will permit the finder to keep it from
others and against the world at large.
89 Schwartz (1950). The author’s explanations provide a clear understanding of a question of fact
that can be distinguished from a question of law from an administrative perspective. The author
states “A theory of review based upon the “law-fact” distinction assumes that there is a more or less
clear-cut division between “law” and “fact”, with the former for the judge and the latter for the
administrator. “This separation of law and fact sounds attractively simple . . . The administrative
tribunal would find the facts and the courts would not interfere unless the absence of evidence or the
perversity of the finding required them to intervene.” In fact, however, the distinction between
“law” and “fact” is not nearly so well defined as is often supposed. “The judges, who have the last
word, can confidently draw the line between law and fact; for the rest of us it is not so easy.” There is
a certain ambiguity about the terms in practice which makes it difficult in many cases confidently to
ascertain which is which prior to court decision. “Whether or not a man was walking along the
sidewalk on a certain street of a certain afternoon is a question of fact. Whether a coal hole on the
sidewalk was or was not covered is a question of fact. Whether or not the man fell into the coal hole
is question of fact. In each case, the fact is ascertainable by observation; there can be no question of
judgment or opinion. As a matter of law, however, the liability of the person or corporation
chargeable with the condition of the coal hole may depend upon whether or not it was reasonably
guarded. This will depend upon two questions. It will depend upon the physical character, location,
and surroundings of the hole, and it will depend upon whether those physical factors conform to the
standard of reasonableness which the law demands. The former is a question of fact, but what is the
An Exposé of Canadian “Abandoned Vessels &. . .
359
satisfactory evidence, which firmly establishes the ground that the property so
claimed, has been abandoned. Because it is observed that quite often, non-use or
the lapse of time is not sufficient to render a property as abandoned.
88 If that is the
case, then the burden of proof will lie on the finder to demonstrate that the property
was indeed legally abandoned in accordance with the principles laid out in the
doctrine of abandonment. As such, the finder must take definite steps to establish a
concrete claim and use certain facts, such as the period of abandonment, non-use,
discontinuance in tax and other relevant payments, and proceed to weaken the
natural link between the owner and the property or thing. Similar principles are
observed in maritime law where judges adjudicate in salvage and wreck cases
whereby the intention of both parties are examined and considered to estimate
whether there has been a legal abandonment on the part of the owner.
2.4.1 Legal Abandonment
When a property, whether real estate or a ship is abandoned—there tends to be a
void. The abandoned or permanently and intentionally relinquished property tends to
float in legal vacuity. Although this relinquishment is a “question of fact”,
89 the law
88 See Strauch v Coastal State Crude Gathering Co., 424 S.W. 2d 677: the non-use of an easement
for 22 years was not sufficient to ascertain the intention of abandonment. See also Morgan v Fox,
536 S.W. 2d 644: unused oil field equipment on a leased premises for 4 years after the expiry of the
lease did not render those equipments as abandoned. But see Armory v Delamirie [1722] EWHC
J94, (1722) 1 Strange 505: the main question was—does a finder have a property right over what is
found against others? It has been held that the finder has a property right that is not concrete so as to
raise his right to an owner’s right. However, the new right will permit the finder to keep it from
others and against the world at large.
89 Schwartz (1950). The author’s explanations provide a clear understanding of a question of fact
that can be distinguished from a question of law from an administrative perspective. The author
states “A theory of review based upon the “law-fact” distinction assumes that there is a more or less
clear-cut division between “law” and “fact”, with the former for the judge and the latter for the
administrator. “This separation of law and fact sounds attractively simple . . . The administrative
tribunal would find the facts and the courts would not interfere unless the absence of evidence or the
perversity of the finding required them to intervene.” In fact, however, the distinction between
“law” and “fact” is not nearly so well defined as is often supposed. “The judges, who have the last
word, can confidently draw the line between law and fact; for the rest of us it is not so easy.” There is
a certain ambiguity about the terms in practice which makes it difficult in many cases confidently to
ascertain which is which prior to court decision. “Whether or not a man was walking along the
sidewalk on a certain street of a certain afternoon is a question of fact. Whether a coal hole on the
sidewalk was or was not covered is a question of fact. Whether or not the man fell into the coal hole
is question of fact. In each case, the fact is ascertainable by observation; there can be no question of
judgment or opinion. As a matter of law, however, the liability of the person or corporation
chargeable with the condition of the coal hole may depend upon whether or not it was reasonably
guarded. This will depend upon two questions. It will depend upon the physical character, location,
and surroundings of the hole, and it will depend upon whether those physical factors conform to the
standard of reasonableness which the law demands. The former is a question of fact, but what is the
An Exposé of Canadian “Abandoned Vessels &. . .
359