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WATER - Ownership - Riparian rights - Obstructions

Monday, July 08, 2019 @ 9:40 AM  

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Appeal by the defendants from a judgment and order that prevented them from constructing a fence across that portion of the boundary of their lands which was underneath the waters of a reservoir. All the parties owned property which bordered on the reservoir. The dam that created the reservoir was constructed by the parties’ common predecessor in title, who obtained a licence to do so. The respondents were effectively prevented from using the bulk of the reservoir for canoeing and other recreational purposes due to the appellants’ fence. The trial judge concluded that under s. 3(2) of the Water Act, the Crown owned the property in and the right to the diversion and use of all water in the Province. Even if the appellants owned the bed of the reservoir, they did not own the water, and therefore they could not prevent the respondents from using the water, specifically the surface of the water.

HELD: Appeals dismissed. The construction of the dam by the parties’ predecessor in title had the effect of vesting the bed of the reservoir in the Crown. If the dam was ever removed, and the creek retreated to its original banks, the flooded land would revert to the adjacent owners through the doctrine of accretion and recession. The parties’ rights were derived from their common law riparian rights and the proper application of the Water Act, the Land Titles Act, and the Public Lands Act. Neither party had obtained any rights to the use of the surface of the reservoir from long and continuous use for recreational purposes, because under s. 69(3) of the Law of Property Act, a prescriptive right could not be obtained to a profit à prendre. The appellants and the respondents had equal common law riparian rights to access the surface of the reservoir for recreational purposes. Neither party was entitled to block the access of the other. There was nothing on the record that would amount to a quit claim of any Crown interest to the appellants. Ownership of the bed did not necessarily exclude common law riparian rights of access. The appellants therefore had no legal standing to exclude the respondents from the recreational use of the surface of the reservoir. While the appellants would appear to have the necessary authority from the Crown to construct a fence to contain their horses, that fence would interfere with the common law rights of the respondents.

Erik v. McDonald, [2019] A.J. No. 710, Alberta Court of Appeal, F.F. Slatter, T.W. Wakeling and S.J. Greckol JJ.A., June 4, 2019. Digest No. TLD-July82019002