Supreme Court of Canada
Merritt v. City of Toronto, (1913) 48 S.C.R. 1
Date: 1913-05-06
William H. Merritt (Plaintiff) Appellant;
and
The City of Toronto (Defendant) Respondent.
1913: April 9, 10; 1913: May 6.
Present: Davies, Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Riparian rights—Interference—Evidence.
M., claiming to be a riparian owner on the shore of Ashbridge Bay (part of Toronto harbour), claimed damages from, and an injunction against, the city for interfering with his access to the water when digging a channel along the north side of the bay.
Held, affirming the judgment of the Court of Appeal (27 Ont. L.R. 1), by which an appeal from a Divisional Court (23 Ont. L.R. 365) was dismissed, that the evidence established that between M.’s land and the bay was marsh land and not land covered with water as contended and, therefore, M. was not a riparian owner.
APPEAL from a decision of the Court of Appeal for Ontario, affirming the judgment of a Divisional
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Court, which maintained the judgment at the trial dismissing the plaintiff’s action.
The plaintiff’s action was brought to compel the city to remove a bank of earth from Ashbridge’s Bay which had been thrown up in excavating a channel and which, it was claimed, impeded or destroyed his right, as riparian owner, of free access to the waters of the bay. By the judgments of all the courts below the action was dismissed.
Mowat K.C. for the appellant. Adjoining appellant’s land is a water lot which is navigable even if it is shallow at times. See Stover v. Lavoia; Gardiner v. Chapman; Tanguay v. Canadian Electric Light Co.
Geary K.C. and Colquhoun for the respondent. Niles v. Cedar Point Club is precisely this case. See also The King v. Montague; Baldwin v. Erie Shooting Club.
DAVIES J.—The plaintiff sues in this action, claiming to be a riparian proprietor on the shore of Ash-bridge Bay adjoining or forming part of the harbour of Toronto. His complaint is that his riparian rights of free and uninterrupted access to the waters of the harbour and bay to and from his lands, have been interrupted by the defendant, who dug a channel running east and west along the north side of the bay, and in and across lots owned by them lying to the south of
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plaintiff’s lots, and threw up the excavation from the cut made by them upon its north side, thus impeding, if not destroying, the rights of access of plaintiff to the navigable waters of the bay.
The lands lying between plaintiff’s lot in which he claims to have riparian rights, is wet, marshy, boggy land, and to maintain his claim for an injunction to prevent interference with his alleged riparian rights the onus lay upon the plaintiff of proving that this lot owned by him was really, as a substantial fact, bounded or covered in part by the waters of the bay, affording him navigable access to the deeper waters outside and beyond his land; in other words that he was what the law calls a riparian proprietor or owner of lands with rights of access, which had been impaired or destroyed by defendant’s works.
There was much evidence, some of it conflicting, and some equivocal and indefinite, given at the trial as to the real nature and character of this marshy land, and in the result the trial judge dismissed the action simply without giving any reasons. It is difficult to see how he could have dismissed the action unless he found against the plaintiff on the crucial point of the case, and on an appeal to the Divisional Court against this judgment the learned Chancellor states plainly that
this action was dismissed by my brother Magee on the ground that the plaintiff’s property was land and not water, and that he was not in any sense a riparian proprietor.
I assume he must, before making that statement, have consulted with the trial judge. The judges of the Divisional Court unanimously concurred with the finding of fact of the trial judge, holding that the plain-
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tiff was not a “riparian proprietor” and did not possess any of his claimed riparian rights, and that the law governing his case was that pertaining to the ownership of marsh land only.
The Court of Appeal for Ontario has made the same findings of fact, Maclaren and Clute JJ. dissenting.
After examining such parts of the evidence as were called to our attention by Mr. Mowat, I am not able to conclude that the findings of fact of the three courts were wrong. On the contrary, I have reached the same conclusion as those courts did, which as I understand it was, that plaintiff’s rights by virtue of his ownership of the land in question were not those of a riparian owner at all, but were those of the owner of marsh land simply.
It was claimed that this marsh or boggy land was simply a floating mass of vegetable matter more or less movable and with an appreciable depth of water below it.
I think the evidence called to our attention by Mr. Geary as to the character of the marsh and soil in front of this land of plaintiff’s, as shewn from the actual cutting of the ditch made by the defendant and the excavations taken from it, sufficiently dispose of that claim as applicable at any rate to the lands lying between plaintiff’s claimed ripa and the deep water of the bay. The “floating marsh” evidence was not applicable to the locality in front of plaintiff’s land.
Not entertaining any reasonable doubt on the crucial facts relating to the character of this marsh and bog land in front of and bordering upon plaintiff’s lot, and not finding him to be in any proper sense of the term a riparian proprietor, I think the appeal should be dismissed with costs.
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IDINGTON J.—Such remote and slim possibilities of riparian ownership relative to the navigable waters of Lake Ontario as appellant’s predecessor in title may have had long ago, seem to have been effectually extinguished by the forces of nature and of social, commercial and political development.
If ever there was a time when the waters of Lake Ontario reached in such depth and volume the appellant’s little plot as to make the owner thereof a riparian proprietor entitled to invoke the law he relies upon herein, it must have been before the Don and other earth carriers had deposited their loads in that vicinity to such an extent as to produce the growth of hay to be found in such close proximity to said plot as to prevent easy navigable approach thereto.
Even if the hay may be of a coarse variety and grown upon a floating vegetable mass having no contact with the soil beneath, as is argued and as does happen with aquatic plants in tropical climes, the barrier to commercial utility developing out of that sort of riparian ownership is rather formidable.
And it seems as if the social and political forces had got to work and constructed a break-water and other things calculated to help the Don to fill up and make of this land-locked bay, solid land in spots, soft land in other spots, with tufts of reed or grass thereon, and that floating vegetable mass peculiar to the climate, in other spots, and all interspersed with water holes, here and there. Indeed long before these later developments had been dreamed of there were dreamers in Toronto who got, in A.D. 1847, a license of occupation from the Crown to the good city to have, hold and occupy a large tract of land and marsh and water which, if we have regard to the illuminating
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effect of a statute of a later date defining the harbour, must have comprised the marsh whereon the works now complained of have been executed.
That license reserved the “free access to the beach for all vessels, boats and persons.” It does not appear that the hay lands in close proximity to the appellant’s land constituted a beach or part of that beach.
Then in 1855 the legislature by way of confirming, as the title of the Act indicates, the city in the possession of the peninsula and marsh held by it under said license, passed an Act enabling a grant to be made by the governor of the province in council of said peninsula or marsh or any part thereof subject to such conditions or restrictions as he might be advised to impose.
That Act recites large sums of money had been expended by the city in laying out lots, etc., in said area. The result seems to me to be that the province had rights therein which the “British North America Act” would have enabled it to execute in accordance with the intent of such legislation which might, but for that, have been of more doubtful effect having regard to the powers assigned by said “British North America Act” to the Dominion over harbours.
Be that as it may the province did make a grant in 1880 to the city and a confirmatory grant or one having that effect was got from the Dominion in 1903. These several transactions seem to raise a rather formidable barrier in appellant’s way when he cannot shew himself possessed of a clearer right as a riparian proprietor than the evidence discloses.
The mandatory order and the restraining injunction he seeks herein are remedies requiring some
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clearer basis for a court to act upon than is made apparent in face of the foregoing history.
And as to actual damages he seems to have suffered none that I am able from reading his evidence to appreciate.
It is not a case of trespass in which the bare invasion of his right might entitle him to nominal damages.
Again the work complained of seems to have been done pursuant to some authority directing it for sanitary reasons, and if he had, through interference with his rights in said lands suffered by reason of the injurious affection thereof his remedy would probably be by way of arbitration.
This latter ground has not been so relied upon, though pleaded, as to make clear we should rest thereon alone. It seems unnecessary to dwell thereon, for upon the findings of fact concurred in by so many courts there seems to be no interference with any riparian rights such as appellant imagines he has had.
The appeal should be dismissed with costs.
DUFF J.—I think the weight of evidence supports the conclusion reached by the Court of Appeal and the Divisional Court that the locus in quo is land, not water. There is, consequently, no foundation for the claim put forward by the appellant that he is entitled to riparian rights.
ANGLIN J.—The judgments of the Divisional Court and of the Court of Appeal upholding the conclusion of the trial judge, who dismissed this action without assigning reasons, rest upon a finding of fact that the plaintiff’s lot on its southern side abuts not upon
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water, but upon land. This finding is supported not merely by evidence sufficient to sustain it, but I rather think by the weight of the evidence in the record. It is certainly quite impossible to say that it is so clearly erroneous that it should be disturbed in this court. It follows that the plaintiff has not the riparian rights upon which his action is founded and that his appeal fails and must be dismissed with costs.
BRODEUR J.—I entirely concur in the opinion of Mr. Justice Davies.
Appeal dismissed with costs.
Solicitors for the appellant: Mowat, Laughton & Maclennan.
Solicitor for the respondent: William Johnston.
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