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Natural Boundaries

Jeff Beddoes, Senior Deputy Surveyor General

March 9, 2011

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Natural Boundaries are Ambulatory

In accordance with common law principles natural boundaries are ambulatory

If a parcel of land is bounded by a natural boundary, as the natural boundary moves, so does the edge or limit of ownership

(as long as the movement of the natural boundary is slow, imperceptible and natural)

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Ownership is to PNB Regardless of Plan Dimensions

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Ownership is to PNB Regardless of Plan Dimensions

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Common Law

• Steeped in the history of England Uncodified rules by which society conducted itself Direction provided by courts of law

• Evolved over time to address new societal norms• Common law principles may be superseded by

statute

• A parcel having a natural boundary enjoys certain common law riparian rights

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Common Law Riparian Rights

• Right to armour the natural boundary to prevent erosion

• Right to “wharf out”• Right to access navigable waters from all points

along the natural boundary Redwood Park Motel Limited v. BC Forest Products Limited (1953), 8

WWWR (NS) 241 (BCSC) Nicholson v. Moran (1950), 1 WWR 118 (BCSC)

• Ownership of lawful accretion – and the converse, loss of ownership of land that has eroded away slowly and by natural causes

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Ad Medium Filum aquae

• Ownership of the bed of a non–navigable stream to its middle thread• Rotter v. Canadian Exploration Ltd. 30 WWR 446. (1961) SCR• Canoe Ontario v. Reed (1989), 69 OR(2d) 494-508 (Ont HC)

• There are many non-navigable streams (and some navigable ones too) that are privately owned

• Section 55 of the Land Act causes some water bodies to be retained by the Crown at the time of (provincial) grant

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What is Lawful Accretion?

• Outward growth from the title natural boundary Re Bulman’s Petition (1966), 56 WWR 225 (BCSC)

• Slow and imperceptible Clarke v. City of Edmonton (1929) 4 DLR 1010 (SCC) AG BC v. Neilson (1956) 5 DLR (2d) 449 SCC

• Process generally must occur through natural means, and certainly must not be caused by the owner of the property benefiting by the accretion

• New land must have taken on upland characteristics

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Divvying Up Lawful Accretion

• Accretion must be apportioned in a fair and equitable manner Paul v.Bates (1934), (XLV111) BC R 473

• Access to navigable water must be maintained (unless all parties are to lose their natural boundary)

Brew Island (1973) 3 WWR 81 (BCSC)

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Avulsion and Excavation

• The sudden loss of land through a storm event or the excavation of land does not change the location of the natural boundary

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Bringing Common Law Ownership into the Torrens System

• Lawful accretion can be brought into the title of the upland property through section 94(1)(c) of the Land Title Act

• Depiction of an improperly defined natural boundary on the plan upon which title is based can be corrected through section 94(1)(d) of the Land Title Act

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Considerations for Determining Limit of Ownership of Waterfront PropertyWhere is the sea-ward edge of my property and do I own that creek?

•Root of title – how were the lands first alienated •Effect of common law•Effect of statute law•Physical facts about the water body

Each case needs to be considered on its own facts.

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Considerations – Root of Title

• Provincial Crown Grant• The Esquimalt and Nanaimo Railway Grant Lands

Easterly 20 miles of Vancouver Island from Goldstream River to Crown Mountain (near Campbell River)

• Hudson Bay Company Grants These occurred before the colonies of

Vancouver Island and British Columbia existed

• Federal Alienation (Dominion Patent or Federal Instrument of Grant)

Date of alienation Navigability of water body

• Certain Railway Grants Intentionally included parts of the beds of navigable lakes

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Crown Grant Tracing

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Crown Grant Tracing

Federal Township Plan

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Considerations – Statute Law

•What is the effect on ownership of the body of water from all the registered (LTO) plans since alienation of the parcel from the Crown?

• Is the subject land affected by: Railway Belt Water Act, 1912 (federal statute) Section 108 of the Land Title Act Section 94 of the Land Title Act Section 56 of the Land Act Section 58 of the Land Act

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BC’s Land Title and Survey System

Thank you

Jeff Beddoes, BCLS, CLSSurveyor General DivisionLand Title and Survey Authority of BC250-387-5680Jeff.Beddoes@ltsa.cawww.ltsa.ca

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