Edwin I. Clarke (Plaintiff) Appellant;
and
City of Edmonton (Defendant) Respondent
and
Attorney-General of Canada (Intervenant) Respondent
1929: April 26, 29; 1929: November 4.
Present: — Duff, Newcombe, Rinfret, Lamont and Smith JJ.
ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF
ALBERTA
Accretion—Bench formed by action of water at river bank
claimed by riparian owner—Whether bench still part of river bed—Whether true
accretion—Formation in a "gradual and imperceptible manner"—
Ownership of river bed—Alberta law as to accretion—Boundary of land at the
river—Construction of title and plan—Part of original river bank still visible
above bench; effect thereof as to rule of accretion applying.
[Page 137]
Plaintiff, as riparian owner, claimed as an accretion to his
land (in Edmonton, Alberta) a bench which, through action of the water of the
North Saskatchewan river in depositing sand, silt, etc., had accumulated
against and permanently united with the bank at the river, and he sued
defendant city for damages for trespass thereon.
[Page 138]
Held (1) On the evidence as to the nature of the soil
and vegetation on the bench, it no longer formed part of the river bed.
Criteria for determining what is and what is not the bed of a river discussed.
(2) The bench (on the evidence as to manner of its formation)
was a true accretion. (What constitutes an accretion discussed). The fact that
the bench was formed in 15 years or less was not inconsistent with the view
that it was formed in a "gradual and imperceptible" manner. Also,
there may be a true accretion notwithstanding that after a flood it can be
ascertained by measurement or even: observed by visual examination that a few
inches, or even a few feet, have been added laterally to the border line. The
test is, not the number of years it took the bench to form, nor yet whether an
addition to the shore line may be apparent after each flood, but whether,
taking into consideration all the incidents contributing to the addition, it
properly comes within what was known to the Roman law as "alluvion,"
which implies a gradual increment imperceptibly deposited, as distinguished
from "avulsion" which implies a sudden and visible removal of a
quantity of soil from one man's land to that of another, which may be followed
and identified, or the sudden alteration of the river's channel. The rule that
accretions must be "gradual, slow and imperceptible" only defines a test
relative to the physical conditions of the place to which it is applied.
(3) Assuming (but not deciding) that the common law
presumption that a riparian owner owned the bed of a non-tidal but navigable
river usque ad medium filum aquae was not incorporated into the law of
the Territories (because not "applicable"—i.e., suitable to the
conditions existing—within R.S.C., 1886, c. 50, s. 11), and that the Crown
owned the bed of the river in question, yet the English law as to accretions
did become the law of the Territories (its "applicability" discussed;
the right to accretions from a navigable river does not depend upon the
ownership of the bed thereof) and is the law of Alberta; and by that law (which
was binding on the Crown) all accretions became the property of the riparian
owner to whose land they attached.
(4) Plaintiff's title gave him "all that portion of"
lot 21 "lying north of" a certain road, and, upon construction of the
plan with reference to which Crown patent of lot 21 had been issued, the
northern boundary thereof was the river, i.e., the edge of the river bed.
Assuming, on the evidence and admissions, that at one time the most northerly
part of lot 21 comprised a steep bank to the foot of which the water came (but
the line to which the water then came, wherever it was, and which then
constituted the northern boundary of lot 21, had since been obliterated by
deposit of sand and silt), the fact that the upper part of that old bank was
still plainly visible above the bench did not prevent the rule as to accretions
applying (Hindson v. Ashby, [1896] 2 Chy. 1, at p. 27,
distinguished on the facts).
(5) The bench, therefore, belonged to plaintiff, and he was
entitled to damages for trespass thereon.
Judgment of the Appellate Division, Alta. (23 Alta. L.R. 233)
reversed.
APPEAL by the plaintiff from the judgment of the Appellate
Division of the Supreme Court of Alberta
[Page 139]
which, affirming in the result the
judgment of Tweedie J., held that the plaintiff was not entitled to a certain
bench of land, claimed by him to have become part of his land by accretion, and
in respect of which bench he had sued the defendant city for damages for
trespass in depositing garbage thereon.
By direction of the Appellate Division, the Attorney-General
of Canada was notified, and counsel for him appeared before it and presented
argument.
The material facts of the case are sufficiently stated in the
judgment now reported. The appeal to this Court was allowed with costs.
G. H. Steer for the appellant.
H. H. Parlee, K.C., for the respondent, the City
of Edmonton.
E. Lafleur, K.C., for the Attorney-General of Canada.
The judgment of the Court was delivered by
LAMONT J.—This is an appeal from the judgment of the
Appellate Division of the Supreme Court of Alberta (Beck, J.A. dissenting) dismissing
an appeal by the plaintiff from a judgment of Tweedie, J., in an action for
damages for trespass to the plaintiff's land. The material facts are as
follows:—
About the year 1920 the plaintiff purchased a piece of land on
the south side of the North Saskatchewan river in the city of Edmonton and, on July 24, 1924, he became the registered owner thereof. This land is described in the
plaintiff's certificate of title as
All that portion of River Lot Twenty-one (21) of the
Edmonton Settlement, in the said Province, lying North of the North boundary of
the Dowler Hill Road, as the said Road is shewn on Plan 7258X, of record in the
Land Titles Office for this Land Registration District.
Plan 7258X is a plan of subdivision of the northern part of Lot
21, and it shews Dowler Hill Road as running along the Saskatchewan river close
to the river on the east side of the lot but not so close on the west. The
plaintiff's land is, therefore, in the shape of a narrow triangle. It is a
portion of what is known as Gallagher's Flats, which, as the evidence shews,
are situated on what was formerly a part
[Page 140]
of the bed of the river, but which, years
ago, was reclaimed therefrom. On the river side of the plaintiff's land at its
western boundary there was, in 1910 when the land at that point was examined by
Mr. Haddow, the defendant's engineer, a steep bank or slope 24·7 feet high, the
drop being made in a horizontal distance of twenty feet. It does not appear
that Mr. Haddow measured any other part of the northern boundary of Lot 21, but
it is not disputed that there was a bank along that boundary. At the time of
Mr. Haddow's examination, the water's edge was 131 feet from the toe of the
bank on an almost imperceptible slope which had a drop of only two and a half
feet in that distance. Through the action of the water since 1910 there has
accumulated against the bank and permanently united with it a ridge or bench
comprised of soil, sand, silt and other substances. This bench is some 1,400
feet long and attains at one point a width of 80 feet. Near the western
boundary of Lot 21 the top of this bench is 13 feet above the level of the
water, but the bench gradually decreases in height until, near the eastern
boundary, it is only some seven feet above the water level. On a portion of the
bench toward its eastern end and covering an area 275 feet long by from 35 to
56 feet wide, the City of Edmonton had, since 1920, been depositing ashes and
other garbage. In order to reach the bench the city's teams had to cross a
portion of the land described in the plaintiff's certificate of title. In June,
1925, the plaintiff discovered for the first time as he says, that the city was
depositing its garbage on the bench. He immediately interviewed the city
authorities and claimed the bench as his own property on the ground that as
riparian owner it constituted an accretion to his land. In September, 1925, he
brought this action against the city, claiming damages for trespass to his
property. The trial judge awarded the plaintiff $50 damages for trespass to the
land included in his certificate of title which the city's teams had crossed,
but dismissed that part of his action in which he claimed damages for trespass
to the accretion or bench, holding, in effect, that the plaintiff did not own
nor had he possession of the bench. From that dismissal the plaintiff appealed
to the Appellate Division. That court, after hearing argument on behalf of both
parties, considered that the Crown, as owner of the bed of the river, should be
given
[Page 141]
an opportunity of being heard, and,
consequently, directed notice to be served upon the Attorney-General of Canada.
The Attorney-General intervened and was heard by his counsel. After argument
the members of the court viewed the bench, examined its soil and vegetation,
and unanimously came to the conclusion that the bench no longer constituted
part of the river bed. The majority of the court, however, held that as the
bench had been formed within the last twelve or fifteen years there could not
have been, in this case, that gradual and imperceptible addition to the
plaintiff's land in the ordinary course of the operations of nature which a
true accretion requires. The majority of the court also seem to have been of
the opinion that there could be no accretion in its true legal sense without
the obliteration of the original boundary line and that in this case the
original boundary line was still in existence and plainly visible. The
plaintiff's appeal was, therefore, dismissed. From that dismissal the plaintiff
now appeals to this court.
Two questions arise in this appeal:
Had the bench at the time the city dumped its garbage thereon become a true
accretion, and If so,
had the plaintiff acquired the ownership thereof so as to enable him to maintain
an action for trespass against the city?
The matters to be considered in
determining whether a given piece of land forms part of the bed of a river or
has been wrested therefrom were stated by Homer, J. in Hindson v. Ashby
as follows:—
I think that the question whether any particular piece of
land is or is not to be held part of the bed of a river at any particular spot,
at any particular time, is one of fact, often of considerable difficulty, to be
determined, not by any hard and fast rule, but by regarding all the material
circumstances of the case, including the fluctuations to which the river has
been and is subject, the nature of the land, and its growth and its user.
His Lordship also quoted the following passages from the judgment
of Curtis, J., of the Supreme Court of the United States, in the case of Howard
v. Ingersoll, which he said were in accordance with
English law on the point. Curtis, J., said:—
The banks of a river are those elevations of land which
confine the waters when they rise out of the bed; and the bed is that soil so
usually
[Page 142]
covered by water as to be
distinguishable from the banks, by the character of the soil, or vegetation, or
both, produced by the common presence and action of flowing water. But neither
the line of ordinary high-water mark, nor of ordinary low-water mark, nor of a
middle stage of water, can be assumed as the line dividing the bed from the
banks. This line is to be found by examining the bed and banks, and
ascertaining where the presence and action of water are so common and usual,
and so long continued in all ordinary years, as to mark upon the soil of the
bed a character distinct from that of the banks, in respect to vegetation, as
well as in respect to the nature of the soil itself. * * *
But in all cases the bed of a river is a natural object, and
is to be sought for, not merely by the application of any abstract rules, but
as other natural objects are sought for and found, by the distinctive
appearances they present; the banks being fast land, on which vegetation
appropriate to such land in the particular locality, grows wherever the bank is
not too steep to permit such growth, and the bed being soil of a different
character and having no vegetation, or only such as exists when commonly submerged
in water.
The case of Hindson v. Ashby
was, on appeal, reversed on the facts, but
the criteria laid down by Romer, J., for determining what is and what is not
the bed of a river were approved by the Court of Appeal.
The bench in question was formed by the action of the waters of
the river in depositing sand, silt and other substances, against the bank or
slope on the north side of the plaintiff's land. This deposit kept increasing
in height until it required an excessive flood to cover it with water. The
bench is 13 feet high at the west or upstream end; 11 feet high where the
garbage is dumped and some seven feet high at its eastern end, and it covers
the lower part of the bank or slope to the extent of these varying heights. On
its north or river side it is a cut bank dropping straight down to the water.
The top of the steep slope which, prior to the formation of the bench, was
popularly referred to as the "south bank of the river" is higher than
the bench and stands out above it varying in height from 11 feet at the west
end to from six to eight feet at the east. It is thus clearly visible above the
bench for its whole length.
At the trial considerable evidence was given as to the nature of
the soil of the bench; the character and extent of the vegetation thereon and
the fluctuations to which the river was, and is, subject. This evidence, in my
opinion, established that the soil of the bench was precisely of the
[Page 143]
same nature as the soil of Gallagher's
Flats, which, admittedly, is upland, and that the vegetation of the bench was
similar in character to that of the uplands to the south but much younger. Some
vegetation on the bench shewed a growth of six or seven years, while on
Gallagher's Flats the trees would require for their growth some 20 or 30 years.
None of the vegetation on the bench was water vegetation. Mr. Haddow admitted
that the soil and vegetation of the bench were of the same character as the
land to the south, and further admitted that the westerly 30 or 40 feet of the
bench had been wrested from the river and no longer constituted part of the
river bed. But he contended that the part of the bench on which the city's
garbage had been dumped was still under the influence of the river. On cross
examination he gave the following testimony:—
Q. Your contention is that because this land is flooded two
or three days during the summer, which is the longest period since 1915, that
it is not wrested from the river?
A. That is my contention exactly, that certainly is my sole
contention.
The evidence of Mr. Pinder shews that in 1915 there was an
excessive flood which covered not only the bench but Gallagher's Flats as well.
In 1916 and 1917 the bench was flooded for a day each year. In 1918 and 1919 it
was not flooded. In 1920 the water may have rested on the top of the bench for
a day or two in May, but this is not certain. In 1921 and 1922 the bench was
not flooded. In 1923 it was flooded for two days. In 1924 it was not flooded.
In 1925 the flood was exceptional and for two days the waters covered the
bench. The bench, therefore, is liable to be covered with water for a day or
two in any year in which there is an exceptional flood. Taking the evidence as
a whole, it, in my opinion, strongly supports the view that the bench no longer
formed part of the river bed as the Appellate Division unanimously found.
The bench being no longer a part of the river bed the next
consideration is, was it formed by that slow and gradual operation of the
waters of the river in the course of nature which is necessary to the formation
of a true accretion?
What constitutes an accretion has received judicial consideration
in many cases, among others, Attorney-General
[Page 144]
of Southern Nigeria v. John
Holt & Co. (Liverpool) Ltd.;
Attorney-General v. McCarthy; Rex
v. Yarborough; Foster
v. Wright; Brighton
and Hove General Gas Company v. Hove Bungalows, Limited;
Trafford v. Thrower. The
result of the discussions may, I think, be stated as follows:
The term "accretion" denotes the increase which land
bordering on a river or on the sea undergoes through the silting up of soil,
sand or other substance, or the permanent retiral of the waters. This increase
must be formed by a process so slow and gradual as to be, in a practical sense,
imperceptible, by which is meant that the addition cannot be observed in its
actual progress from moment to moment or from hour to hour, although, after a
certain period, it can be observed that there has been a fresh addition to the
shore line. The increase must also result from the action of the water in the
ordinary course of the operations of nature and not from some unusual or
unnatural action by which a considerable quantity of soil is suddenly swept
from the land of one man and deposited on, or annexed to, the land of another.
The fact that the increase is brought about in whole or in part
by the water, as the result of the employment of artificial means, does not
prevent it from being a true accretion, provided the artificial means are
employed lawfully and not with the intention of producing an accretion, for the
doctrine of accretion applies to the result and not to the manner of its
production. Stanley v. Perry;
Brighton and Hove General Gas Co. v. Hove Bungalows, Limited.
There was evidence that in 1925 a deposit of silt had been made
on the bench amounting in places to a depth of six inches, as a result of that
year's flood, and the test pit dug by Mr. Haddow gave indication of an equal or
greater deposit in a former year. Whether or not this latter deposit was due to
flood conditions or to imperceptible accumulation in the course of nature, or
to a combination of both, we can only conjecture. It was, however, argued
[Page 145]
that such extensive deposits could not
reasonably be said to have been gradual and imperceptible in their formation.
What amount of alluvial matter might, by imperceptible deposit, be added to the
plaintiff's land in any one year has not been disclosed by the evidence. Much,
it seems to me, would depend upon the river itself, its volume, the rate of the
current and how densely it was saturated with alluvial matter. But, although
these conditions might influence the deposit of alluvial matter, the important
question is: Was the formation of the deposit perceptible in its actual
progress from moment to moment?
In his evidence Mr. Haddow said that the bench had been formed by
sediment which had been deposited as a result of the slackening of the current,
and that its slackening had been caused by the current being thrown out in the
river towards the north, causing the water towards the south side to slacken.
He explained what, in his opinion, had taken place, as follows:—
In 1915 exceptionally heavy flood conditions occurred and
there was about eighty or one hundred feet of the northerly end of River Lot 17
scoured away and washed completely down stream. This perhaps had the effect of
opening out the channel so that the main flow would follow more nearly the
centre or north side of the river, leaving the south side of the river
adjoining River Lot 21 in comparatively quiet water, affording facilities for
the deposit.
Mr. Pinder, a surveyor, who gave evidence for the plaintiff, on
cross examination testified as follows:
Q. Would you be safe in saying that there has been a new
bank forming gradually from time to time?
A. There has been a gradual alluvial deposit from year to
year.
Q. How long have you been out here?
A. I came out in 1907.
and Mr. Pearson, likewise a surveyor,
said:
Q. In what way, in your opinion, has that bench been built
up?
A. By silt from the river deposited in the course of high
water.
Q. Has it been built up in such a way, in your opinion, as
to be perceptible from moment to moment?
A. Not in my opinion.
He could not say, however, how gradually the accumulation had
taken place.
Another surveyor, Mr. Belyea, who gave evidence for the city,
stated that "it had gradually grown up." The test pit disclosed that
the deposit contained layers of alluvial matters of various thicknesses, one,
at least, of which was 12 inches. But the time it took these layers to
accumulate, whether months or years, we do not know. The
[Page 146]
proper inference to be drawn from all the
evidence, in my opinion, is that for some 10 or 11 months in each year from the
time the accumulation began until the bench had attained a considerable height,
the sand and silt of the river was gradually and imperceptibly deposited
against the steep bank or slope on the northern part of the plaintiff's land.
Then for a few days or perhaps weeks flood conditions prevailed, during which an
increased quantity of alluvial matter was brought down by the river. Much of
this additional matter would, in all probability, be carried down by the
current, but some of it, no doubt, would find a resting place upon the bench
with the result that the deposit there at such time would be greater than if
flood conditions had not existed. But even so, that does not prove that the
deposit was perceptible in its actual progress, and the only evidence we have,
in my opinion, points the other way. Neither can it affect the ownership of the
deposit made gradually to the plaintiff's land during ten or eleven months in
each year when there was an absence of flood conditions, for, as said by Gibson
J. in Attorney-General v. McCarthy:
each insensible addition attaches to
the principal land, and though in result, the aggregate of additions may shew a
substantial enlargement of the original territory, that cannot displace
retrospectively the ownership of the previous minute accruing accretions.
In other words, where the increase is
imperceptible in its progress, that increase becomes the property of the owner
to whose land it attaches as it is formed; it is vested in him de die in
diem and no additional increase resulting from flood conditions can deprive
the owner of the increase which had already vested in him. Flood conditions in
the North Saskatchewan river must be expected every year when the summer sun or
the rains melt the snows in the mountains through which the river has its
course.
That the bench as it exists to-day was formed between the year
1910 and the date of the trial in 1925, in my opinion admits of no doubt. Mr.
Haddow says it did not exist in 1910. The evidence of the plaintiff is that in
1920 it was in existence and was then very much as it is to-day. The test pit
dug by Mr. Haddow shewed ashes—presumably from the dump made by the city—at a
depth of three
[Page 147]
feet from the top. The bench therefore,
at any rate except its upper three feet, was formed between 1910 and 1920.
Where the city dumped its garbage the bench is 11 feet high. Does the fact that
the lower eight feet of the bench was formed in ten years justify the
conclusion that the accumulation must have been perceptible in its progress
from moment to moment or from hour to hour during that time? With great
deference I do not think it does. The river in its long course west of Edmonton
is fed by a great many streams, these, in turn, except during the winter, are
fed by innumerable rivulets of melted snow which flow down the sides of the
mountains, each carrying with it some of the soil of the mountain down which it
runs. This soil is borne to the river and is carried along by the current until
it comes to a place where the current slackens, when it sinks to the bottom.
The only evidence before us of a considerable quantity of soil being washed up
by the sudden action of the waters of the river is that related by Mr. Haddow
when he says, that in 1915 an unusual flood "scoured away and washed
completely down stream" 80 or 100 feet of the point on Lot 17. Mr.
Haddow's evidence however, is to the effect that the soil from this point was
not deposited against the plaintiff's land, for he says that the bench was
formed by sediment which had been deposited as a result of the slackening of
the current. This itself was due to the fact that after the point had been
washed away the current ran farther to the north leaving the water on the
plaintiff's side quieter than before, and that this quiet water facilitated the
deposit. The fact that the bench was formed in fifteen years, or less, is not,
in my opinion, inconsistent with the evidence of the witnesses who gave it as
their opinion that the formation of the bench had been gradual and had not been
perceptible from moment to moment. The test, in my opinion, is not the number
of years it took the bench to form, nor yet whether an addition to the shore
line may be apparent after each flood, but whether, taking into consideration
all the incidents contributing to the addition, it properly comes within what
was known to the Roman law as "alluvion", which implies a gradual
increment imperceptibly deposited, as distinguished from "avulsion",
which implies a sudden and visible removal of a quantity of soil from one man's
land to that of another,
[Page 148]
which may be followed and identified, or
the sudden alteration of the river's channel.
Considering that in this case there is no evidence that the
formation of the bench has been assisted by anything in the nature of an
"avulsion", and considering that there is evidence pointing to its
formation in a gradual and imperceptible manner; and, furthermore, that the
additional alluvial matter deposited during flood time was only what was to be
expected in the couse of nature, I agree with the late Mr. Justice Beck, who, in
his able dissenting judgment said:—
It is far from enough to prevent a true accretion to be able
to say that, for instance, after a flood it can be ascertained by measurement
or even observed by visual examination that a few inches or even a few feet
have been added laterally to the border line.
This view is in accord with what was laid down by the Privy
Council in Secretary of State for India v. Raja of Vizianagaram,
where their Lordships said:—
The extent of the river and the operation of its currents in
forming alluvial tracts during the flood season must be borne in mind with
reference to questions arising in this case.
* * * * *
In dealing with the great rivers in India and comparing them
with the rivers in this country, it is necessary to bear in mind the
comparative rapidity with which formations and additions take place in the former.
* * * *
Their Lordships do not find it necessary * * * to discuss
the exact meaning of the word "imperceptible" in the English rule
which provides that all accretions must be "gradual, slow and
imperceptible," for assuming the applicability of the English rule,
"slow" and "imperceptible" are only qualifications of the
word "gradual," and this word with its qualifications only defines a
test relative to the conditions to which it is applied. In other words, the
actual rate of progress necessary to satisfy the rule when used in connection
with English rivers is not necessarily the same when applied to the rivers of India.
The application of the rule is, in their Lordships' opinion, correctly laid
down in the judgment of Ayling J. in the present case when he says: "It
seems to me the recognition of title by alluvial accretion is largely governed
by the fact that the accretion is due to the normal action of physical forces;
and the conditions of Indian and English rivers differ so much that what would
be abnormal and almost miraculous in the latter is normal and commonplace in
the former, as pointed out by their Lordships of the Privy Council in Srinath
Roy v. Dinabandhu Sen."
In this latter case their Lordships point out that in proposing
to apply the juristic rules of a distant time or
[Page 149]
country to the conditions of a particular
place at the present day, regard must be had to the physical conditions to
which the rule is to be adapted.
The bench being a true accretion the next question is, to whom
did it belong?
The Saskatchewan river is admittedly non-tidal and navigable in
fact. The Province of Alberta, through which it flows, was formerly a part of
Rupert's Land, and the North Western Territory, which became a part of the
Dominion of Canada on July 15, 1870. From that date they were under the
jurisdiction of the Parliament of Canada.
By s. 3 of c. 25 of the Statutes of 1886 (s. 11 of the North
West Territories Act, R.S.C. 1886, c. 50) the Parliament of
Canada enacted as follows:—
11. Subject to the provisions of this Act, the laws of
England relating to civil and criminal matters, as the same existed on the
fifteenth day of July, in the year of our Lord one thousand eight hundred and
seventy, shall be in force in the Territories, in so far as the same are
applicable to the Territories. * * *
That Act was assented to by the Crown, so all the rights which
the law of England applicable to the Territories gave to a subject as against
the Crown in respect of the ownership of the bed of a river, and the accretions
to its banks, were binding on the Crown in the North West Territories. The laws
of England thus introduced included both the common law and the statutory
enactments as far as either were applicable. By "applicable" here is
meant suitable to the conditions existing in the Territories. It is, therefore,
essential to ascertain what was the law of England on July 15, 1870, in respect
of accretions to the land of a riparian owner bordering on a river non-tidal
but navigable in fact.
The law of England, as stated by Coulson & Forbes, in Law of
Waters, 4th ed., at pp. 77 and 91, is as follows:—
The bed of all navigable rivers where the tide flows and
reflows, and of all estuaries and arms of the sea is by law vested prima
facie in the Crown. But this ownership of the Crown is for the benefit of
the subject, and cannot be used in any way so as to derogate from or interfere
with the right of navigation which belongs by law to the subjects of the realm,
or the right of fishery, which is primâ facie common to all.
* * * * *
All rivers and streams above the flow and reflow of the tide
are primâ facie private, though many have become by immemorial user or
by Act of Parliament subject to the public rights of navigation.
[Page 150]
There are two presumptions with regard to the ownership of
the bed of non-tidal waters—one, that the riparian owners own half the bed of
the river usque ad medium filum aquae; the other, that the owner of the
right of fishing in the river is owner of the soil, and this displaces the
presumption that would otherwise arise in favour of the riparian owners being
the owners of the bed of the river usque ad medium filum aquae.
The presumption that the riparian proprietor
owned to the centre of the bed of all non-tidal waters applied to navigable as
well as non-navigable rivers. Notwithstanding, however, that the bed of tidal
waters was vested in the Crown and the bed of non-tidal waters was vested in
the riparian proprietors, the law of England was that all accretions formed
gradually and imperceptibly in the ordinary course of the natural operation of
the water became the property of the owner of the land to which the accretion
became attached, but if an accretion was the result of a sudden and
considerable accumulation of soil, it could not be claimed by the riparian
owner against whose land it accumulated. Blackstone, Vol. 2, at p. 262; Rex v.
Yarborough.
In In re Hull and Selby Railway,
the law as to accretions was held to apply alike to King and subject.
It was, however, argued that the common law presumption that a
riparian proprietor owned the bed of a non-tidal but navigable river usque
ad medium filum aquae did not become the law of the North West Territories
because unsuitable to the conditions there existing, and reference was made to
a number of cases including Keewatin Power Co. v. Kenora,
in which the arguments and authorities on the point were exhaustively examined
by my Lord the Chief Justice (then Anglin J.). In my opinion, it is not
necessary in this case to pass upon that question, for, assuming against the
plaintiff that the presumption was not incorporated into the law of the
Territories and admitting that the Crown is the owner of the bed of the
Saskatchewan River, the city has still to meet the law as to the ownership of
accretions, which, as I have said, was, in England, binding on the Crown. If
the law of England as to accretions was applicable to the Territories, then all
accretions there became the property of the riparian owner to whose land they
attached. The applicability of the law
[Page 151]
was challenged on the ground that the law
depended for its vitality on the fact that the riparian proprietor was the
owner of the bed of the river. In my opinion this is not so. The right to
accretions is one of the riparian rights incident to all land bordering on the
water. The rule is dependent, as set out in In re Hull & Selby Railway,
on two principles: viz., that that which cannot be perceived in
its progress is taken to be as if it had never existed, and
the necessity for some such rule of law for the permanent protection and
adjustment of property. That the right to accretions from a navigable river
does not depend upon the ownership of the bed thereof is made clear in Lyon v.
Fishmongers' Company, where, at p. 683, Lord Selborne
said:—
With respect to the ownership of the bed of the river, this
cannot be the natural foundation of riparian rights properly so called, because
the word "riparian" is relative to the bank, and not the bed, of the
stream; * * *
It was also urged that if the court held that the ad medium
filum presumption of the common law was not applicable to fresh water
conditions in the Territories, then, inasmuch as that presumption and the rule
as to accretions had both been adopted from the civil law the court should hold
the rule as to accretions also inapplicable. This contention is untenable. In
enacting s. 11 Parliament was adopting the law of England as it actually existed
irrespective of the sources from which it had been derived, and the only
limitation placed on the adoption of that law was as to its applicability. In
my opinion the English law as to accretions was applicable and became the law
of the Territories.
In this connection it is interesting to note that in India, where
a number of the rivers more nearly approximate in size and character to the
North Saskatchewan than do those of England, the law applicable to accretions
was laid down by the Privy Council in Sri Balsu Ramalaksmamma v. Collector
of Godaveri District, as
follows:—
There does not appear to be in Madras, as in Bengal, an
express law embodying the principle that gradual accretion enures to the land which
attracts it; but the rule, though unwritten, is equally well established.
[Page 152]
There remains to consider only the argument that because some six
or eight feet at the top of the old bank still stands out clear and visible
above the bench, the rule as to accretions has no application. In support of
the argument we were referred to the dictum of A. L. Smith L.J., in Hindson v.
Ashby,
where, at p. 27, His Lordship said:—
I very much doubt if the plaintiffs can invoke the doctrine
of accretion as applying to a case where, as here, the old line of demarcation
between the plaintiffs' land and the river has always been in existence and
still remains patent for all to see. I allude to the old 6 ft. bank.
The argument as applied in the present
case is, in my opinion, based upon a misconception as to what constituted the
northern boundary of the plaintiff's land. His title gives him "all that
portion of River lot 21 * * * lying north of the north boundary of the Dowler
Hill Road."
The patent of Lot 21 was issued by the
Crown to George Donnell on June 26, 1887, and conveyed
Lot numbered twenty-one, in Edmonton Settlement aforesaid,
as shown upon a map or plan of the said Settlement, signed by Andrew Russell,
for the Surveyor General of Dominion Lands, dated 25th May, 1883, and of record
in the Department of the Interior, containing by admeasurement, One Hundred and
Sixty-three Acres, more or less.
This map or plan which is the only
evidence we have as to the boundary of Lot 21, shews that lot to have been
twenty chains in width and to have been bounded on the south by a surveyed
road. The west boundary is also a surveyed road running in a northerly
direction at right angles to the south boundary a distance of 82·76 chains. The
east boundary is parallel to the west boundary and is 79·02 chains in length.
Both the east and west boundary lines run to the line which marks the river and
no other delimitation of the northern boundary of the lot is given. This
boundary line must, therefore, be determined by the rules of law and the
construction to be placed upon the plan. A plan of land abutting on a river
which shews the east and west boundary lines of a lot as running northerly to
the river line and having no defined northern boundary, is, in my opinion, to
be construed as having the river (i.e., the edge of the river bed) for the
northern boundary of such lot. If, on the survey of Lot 21, the east and west
boundary lines had stopped short of the river bed, there would have been a
piece of land between the northern limit of Lot 21
[Page 153]
and the bed of the river, in which case
it would have been necessary for the surveyor to define the northern boundary
of Lot 21. Not having done so, the presumption, in my opinion, is that the
river was intended to be the northern boundary. This was the opinion of Mr.
Haddow, who, on being shewn Plan 7258X, gave it as his opinion that the
Saskatchewan river was the northern boundary of Lot 21. This view is also in
harmony with the instructions given by the Department of the Interior to
surveyors for their guidance in surveying Dominion lands, as shewn by extracts
from the Manual of Instructions put in evidence at the trial, and which, in
part, read as follows:—
193. Land abutting on tidal waters is bounded by the line of
ordinary high water. In the case of an inland lake or stream, the
boundary, if the parcel does not include the bed, is the edge of the bed of
the lake or stream which edge is called the bank.
It was not shewn that these or similar
instructions were in force at the time Lot 21 was surveyed or the original plan
prepared, but as their admissibility and applicability were not questioned at
the trial and as they support the construction which the plan otherwise would
bear, it seems not unreasonable that they should now be received as indicating
the meaning which the surveyor who made the plan intended to convey. I am of
opinion, therefore, that the northern boundary of Lot 21 as shewn on the
Russell plan was the edge of the river bed. Where that edge was in 1883 we do
not know. We have no evidence whatever as to its location before 1910 at which
time the water was 131 feet from the toe of the bank on a slope which dropped
only 2½ feet in that distance. From 1910 to 1920 there is an absence of
evidence as to where the edge was to be found. On the argument before the
Appellate Division counsel for the plaintiff, as appears from the judgment of
the learned Chief Justice, admitted
that the evidence established that
at the time of the survey in 1883 and of the grant by the Crown in 1887, the
northern boundary of the lot was a high steep bank to the foot of which the
river came, and that such bank still exists as before, plainly visible.
The material part of this admission is
that "the northern boundary of the lot was a high steep bank", that
is that the bank and not the river constituted the boundary line. As, however,
the learned Chief Justice in his judgment expresses the opinion that the
admission was not intended in that sense, and as all parties knew that the
evidence did
[Page 154]
not shew such to be the fact, I think we
must conclude that all that the admission was intended and was understood to
mean was that counsel for the plaintiff was willing to rest his case on the
assumption that in 1883 the most northerly part of Lot 21 comprised a steep
bank; that the water of the river came up to the foot of that bank, and that
the upper part of that bank was still plainly visible. If it meant more than
that it is contrary to the evidence. By that evidence it was clearly
established that the only part of the bank still visible is the upper six or
eight feet. Taking against the plaintiff the assumption here made, where was
the edge of the river bed in 1883? Clearly it was not the top of the old bank
nor yet its upper six or eight feet. It was the line at the foot to which the
water came. That line, wherever it was, constituted the northern boundary of
Lot 21. That line, however, was buried out of sight by eleven feet of sand and
silt when the city dumped its garbage on the bench. This fact clearly
distinguishes the case before us from Hindson v. Ashby,
where it was established in evidence that the almost perpendicular six-foot
bank there in question, to the foot of which the water came in 1803, still
stood, and to the foot of which for a considerable part of the year the waters
still came. The authorities on the question as to the application of the
doctrine of accretion being conditional upon the non-existence of marks
sufficient to distinguish the former water line, were reviewed by Pallas, C.
B., in Attorney-General v. McCarthy,
and he arrived at the conclusion that so long as the decision of the House of
Lords in Gifford v. Yarborough
remains unchallenged, no lesser court is entitled to impose any such condition
on its application. With this conclusion Romer J. in the Hove
Bungalows case
agreed. As I have already pointed out, we are here not concerned with that
question, because, not only has the edge of the river bed been obliterated, but
also the most northerly part of Lot 21 to the extent of 11 feet up the slope.
This slope or bank cannot be described as perpendicular, nor can its upper part
be said to have been the edge of the river bed.
[Page 155]
I am, therefore, of opinion that the bench in question was a true
accretion; that it attached to the plaintiff's land by gradual and
imperceptible degrees and obliterated the former line of demarcation between
his land and the water. The bench, therefore, belongs to him and he is entitled
to maintain this action against the city for trespass thereon.
As to damages: These are difficult to fix. The plaintiff claims
the sum it would take to have the garbage removed from the bench although some
of it is now buried three feet in the sand. The necessity for its removal is
claimed by the plaintiff upon the ground that unless removed it will interfere
with his obtaining gravel from the bed of the river opposite the place on which
it is dumped. During the five years that the city was dumping garbage on the
bench the plaintiff did not have any permit to remove gravel from the river
and, without a permit, he could not lawfully remove it, and it was only a few
weeks before the trial that he obtained a permit. It was further established
that while there may be gravel at a certain place in the river during one year,
the river may, the next year, wash it away. Under all the circumstances, I
think $500 would amply repay the plaintiff for the damages he suffered through
the trespass by the city to the bench.
The appeal should be allowed with costs here and below, the
judgment set aside and judgment entered for the plaintiff for $500 and costs.
Appeal allowed with costs.
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