Attorney-General for British Columbia v. Miller, [1975] 1 SCR 556

Supreme Court of Canada

Attorney-General for British Columbia v. Miller, [1975] 1 S.C.R. 556

Date: 1974-04-02

Attorney-General For British Columbia (Defendant) Appellant;

and

Dr. J.S. Miller (Plaintiff) Respondent.

1973: November 2; 1974: April 2.

Present: Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Waters and watercourses—Beach land—Declaratory action brought to assert title against Crown—Plan annexed to Crown grant showing lake in colour other than red—Effect of statutory provision—Position of natural boundary of disputed parcel—Land Registry Act, R.S.B.C. 1960, c. 208—Land Act, 1970 (B.C.), c. 17, s. 52(1).

A declaratory action was brought by the respondent to assert against the Crown in right of the Province of British Columbia title to certain beach land on the east shore of Kootenay Lake. The respondent held a certificate of indefeasible title under the Land Registry Act, R.S.B.C. 1960, c. 208, for a property acquired in 1965.

The respondent failed at trial but succeeded on appeal. In this Court the issues for determination were whether the certificate of indefeasible title covered the disputed property in fact, and hence entitled the respondent to succeed in law, and, if so, whether the result was affected by s. 52(1) of the Land Act, 1970 (B.C.), c. 17.

Held: The appeal should be allowed.

Section 52(1) of the Land Act is concerned with a plan annexed to a Crown grant which shows any lake or other body of water coloured other than red. In such case, no part of the bed or shore below the natural boundary (the “visible high-water mark”) passes or is deemed to pass to the grantee, save by express provision or on ministerial direction, and this notwithstanding any certificate of title. In the present case, Kootenay Lake in the plan annexed to a Crown grant in 1907 was coloured blue (i.e. other than red), and, hence, under the statute, no part of the bed or shore below the visible high-water mark could pass from the Crown since there was no express provision to the contrary and no ministerial direction. The concluding words of s. 52(1), “notwithstanding any

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certificate of title, the title to the land shall be construed accordingly”, showed that a subsequent certificate of indefeasible title could not prevail over the effect of s. 52(1).

As to the central question in the appeal, the westerly boundary of the disputed parcel was fixed by the position of the high-water mark at the time of the Crown grant, and the preponderance of the evidence established that mark as indicated on a plan prepared by a government surveyor on the basis of a survey made in 1969 and rechecked in 1971. There was no evidence to show that the high-water mark had shifted between 1897 (when field notes were made from which the plan annexed to the Crown grant was prepared) or 1907 and 1971 (when the action was tried) either through accretion or erosion.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of MacDonald J. Appeal allowed.

D.M. Gordon, Q.C., and J.V. DiCastri, for the defendant, appellant.

A. McEachern and W.S. Berardino, for the plaintiff, respondent.

The judgment of the Court was delivered by

LASKIN J.—This case orginated in a declaratory action by the respondent, brought to assert against the Crown in right of the Province of British Columbia title to certain beach land off North Bay and lying between the east shore of Kootenay Lake and the west limit of Beach Drive, a road running through Lot 2637 in Kootenay District. The respondent holds a certificate of indefeasible title under the Land Registry Act, R.S.B.C. 1960, c. 208, which describes his property as follows:

Parcel “C” (Explanatory Plan 33695-I) of Lot 2637, Kootenay District, save and except thereout that part subdivided by Plan 2477.

The respondent failed at trial but succeeded on appeal.

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There are two issues before this Court. The first is whether the certificate of indefeasible title covers the disputed property in fact, and hence entitles the respondent to succeed in law. The second is whether, if that be the case, the result is affected by s. 52(1) of the Land Act, 1970 (B.C.), c. 17, which at the time of action brought was s. 131A(1) of R.S.B.C. 1960, c. 206, as enacted by 1961 (B.C.), c. 32. This provision, in its present form, is in these words:

52(1) Where Crown land is or has, prior to this section coming into force, been disposed of by Her Majesty in right of the Province by Crown grant, and the map or plan annexed to the grant shows any lake, river, stream, or other body of water coloured, outlined, or otherwise designated thereon in a colour other than red, no part of the bed or shore of the lake, river, stream, or other body of water below the natural boundary thereof shall pass or shall be deemed to have passed to the person acquiring the grant unless

(a) there is express provision in the grant to the contrary; or

(b) the minister otherwise directs by certificate issued under Section 53,

and nothing in this Act or any other Act or any rule of law to the contrary shall be construed to vest or to have heretofore vested in any person the land that comprises the bed or shore of the lake, river, stream, or other body of water below the natural boundary, and notwithstanding any certificate of title, the title to the land shall be construed accordingly.

The phrase “natural boundary” in the quoted subsection is defined in s. 2(n) of the Act as follows:

2(n) “natural boundary” means the visible highwater mark of any lake, river, stream, or other body of water where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed of the lake, river, stream or other body of water a character distinct from that of the banks thereof, in respect to vegetation, as well as in respect to the nature of the soil itself.

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Lot 2637 was the subject (along with Lot 2636B) of a Crown grant to one Brewer in 1907. The patent designated the land as consisting of 269 acres, more or less, “and more particularly described on the map or plan hereunto annexed and coloured red”. This plan shows the lot abutting directly on Kootenay Lake. Although there is no detailed description of the limits of the lot, it is common ground that the plan annexed to the grant was prepared from a sketch and field notes of one Moore, who surveyed the area in 1897. The owner of Lot 2637 in 1931 conveyed in that year to a grantee Wigen Parcel C of Lot 2637, as indicated and coloured red on an explanatory plan 33695-I. This plan was the product of a surveyor, Dawson, and showed part of Lot 2637 as consisting of Parcels A, B and C. A road allowance coloured yellow was shown on Parcel C, and west of it a land area coloured blue fronting on North Bay, with the west boundary stated to be the high-water mark. It is this area which is the subject of the dispute between the parties. Although Dawson fixed a high-water mark, it appears that the disputed area was brought within the grant to Wigen by a metes and bounds description which, inter alia, referred to “an iron post marked ‘H’ planted on the northerly boundary of said lot 2637 thence westerly along the northerly boundary of said lot to an iron post marked ‘I’ slanted at high water mark thence southerly along the high-water mark as defined by iron posts to an iron post marked ‘J’ thence southerly to the point of commencement”.

Wigen sold Parcel C to Mr. and Mrs. Paice who, as owners also of Parcel B, filed a subdivision plan No. 2477 in 1951, based upon a survey made by one Smith in 1950, and covering substantially all of both parcels. He showed the high-water mark, in relation to the disputed area, by and large at the west limit of Beach Drive so as to exclude it substantially from Parcel C. The respondent Miller was the grantee in 1965 from the Paices of that part of Parcel C

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not included in the subdivision under plan 2477. As I have already noted, the description of that grant is by reference to Dawson’s explanatory plan of 1931 (33695-I) and to Smith’s plan of 1950 (2477), which do not correspond as to the high-water mark at the material place. Indeed, if plan 2477 is given full effect, it cancels out most of what would otherwise be obtained under Dawson’s plan.

Counsel for the respondent contended that the fixing of the high-water mark was no part of the survey that Smith had to undertake in drawing up the plan of subdivision filed by the Paices; it was, it is alleged, gratuitous. However, to the extent to which the high-water mark was the boundary of Parcel C, albeit at the westerly limit of Beach Drive, it necessarily had to be shown. But be that as it may, and apart from the dilemma of conflicting boundaries, created by giving full force to the high-water mark on plan 2477, the certificate of indefeasible title of the respondent is by s. 38(1) of the Land Registry Act, R.S.B.C. 1960, c. 208, subject to, inter alia, “(i) the right of any person to show that the whole or any portion of the land is by wrong description of boundaries or parcels improperly included in such certificate”. The burden in this respect would be on the Crown in the present case. In addition to its reliance on plan 2477 as having been approved by the respondent’s predecessors in title, it rests also on the original Crown grant, contending that plan 2477 is consistent with that grant, and on a survey made by a government surveyor Thorpe in 1969, and rechecked by him in 1971.

The trial judge made a finding, which respondent’s counsel does not challenge, that the natural boundary of the disputed area at the

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time of action brought was that delineated on the Thorpe plan. This showed the high-water mark as being at or very near to the westerly limit of Beach Drive, a position unfavourable to the respondent’s claim. The trial judge, on this finding, went on to say that either earlier surveys upon which the respondent relied were in error, or the high-water mark had moved eastward since those surveys owing to a rise in the water level. He could not, however, find on the evidence that the natural boundary or high-water mark had moved eastward over the years. In the result, he invoked what is now s. 52(1) of the Land Act in favour of the Crown; and there is implicit in this conclusion that there was a correspondence between the natural boundary under the original Crown grant and that shown in the Thorpe plan, or that s. 52(1) operated upon the present natural boundary as shown in the Thorpe plan.

In the British Columbia Court of Appeal, Bull J.A. construed s. 52(1) as only applicable to the natural boundary fixed by the original Crown grant and not to any subsequent alteration resulting from a change in the high-water mark. On this view, he asserted that no part of the bed or shore of Lake Kootenay below the “natural boundary” passed to the grantee of Lot 2637. But having said this, he held that the 1931 conveyance to Wigen, based on the Dawson plan showing the high-water mark to be west of the disputed area, correctly delineated the natural boundary and, consequently, the reference to the Dawson plan in the description in the respondent’s certificate of indefeasible title made the certificate invulnerable to any attack on the basis of a wrong description of boundaries or parcels. There is no explanation of the basis upon which the Dawson plan was found by Bull J.A. to have correctly fixed the natural boundary, unless it be that the Dawson plan was consistent with the limits of the Crown grant in 1907. In my opinion, such a conclusion is not warranted, either by reference to the plan annexed to the Crown grant or by a comparison

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of Moore’s field notes with Dawson’s explanatory plan 33695-I. However, it was also said by Bull J.A. that the natural boundary or high-water mark in the Dawson plan was not shown to be wrong, and in this respect he appears to have concluded that the Crown had failed to shake the certificate of indefeasible title.

McFarlane J.A., speaking for himself and Taggart J.A., appears to have treated the original Crown grant as fixing a definite and unvarying high-water mark which, in the events that happened, was carried into the respondent’s certificate of indefeasible title through the Dawson explanatory plan. Moreover, he was explicit, as Bull J.A. was not, in finding concordance between the high-water mark as fixed in Moore’s field notes and that in the 1931 conveyance to Wigen. He said in his reasons:

The conveyance describes the land conveyed by metes and bounds description which refers to high water mark as do the field notes of Moore on which the plan annexed to the Crown grant is based. It follows that the southwesterly boundary of the land which Wigen received was that boundary as shown on the plan annexed to the Crown grant.

I am unable to appreciate how the conclusion stated follows from the premises when there is nothing to show that the high-water marks were at the same place. McFarlane J.A. had noted earlier in his reasons that the Crown grant did not contain any metes and bounds description nor any reference to the land being bounded by or adjacent to Kootenay Lake. None the less, the plan annexed to the Crown grant, which carried the description does show the land as bounded by and adjacent to Kootenay Lake, and Moore’s notes, showing both low and high‑water mark, are inconsistent with Dawson’s explanatory plan. I do not think that merely because the Dawson plan is referentially part of

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the description in a certificate of indefeasible title it thereby itself becomes unchallengeable so far as boundaries are concerned.

McFarlane J.A. also held that s. 52(1) of the Land Act was not the determining consideration in this case “because the map or plan annexed to the Crown grant dated April 30, 1907 does not purport to show any part of the land under the water of the lake as coloured red”. It is not clear to me whether this conclusion is directed against the position of the Crown or against that of the respondent. If the latter, I would agree that he could not found himself upon s. 52(1) when none of the land below high-water mark is coloured red. If the conclusion is directed against the position of the Crown, it does not appear to me to be an answer. The statute is concerned with a plan annexed to a Crown grant which shows any lake or other body of water coloured other than red. In such case, no part of the bed or shore below the natural boundary (the “Visible high-water mark”) passes or is deemed to pass to the grantee, save by express provision or on ministerial direction, and this nothwithstanding any certificate of title. In the present case, Kootenay Lake in the plan annexed to the Crown grant was coloured blue (i.e. other than red), and hence, under the statute, no part of the bed or shore below the visible high-water mark could pass from the Crown since there was no express provision to the contrary and no ministerial direction. The concluding words of s. 52(1), “notwithstanding any certificate of title, the title to the land shall be construed accordingly”, show that a subsequent certificate of indefeasible title cannot prevail over the effect of s. 52(1).

The question that remains, and it is the central question, is the position of the natural

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boundary, or the visible high-water mark. It was the contention of the appellant that where a lot has a water boundary, in this case the high-water mark, it is necessarily a movable or ambulatory boundary, depending on the action of the water from time to time. In his submission, the finding of the trial judge that the Thorpe plan fixed the high-water mark at the time of suit concluded the case against the respondent. Alternatively, the appellant contends that there being no evidence to show that the high-water mark had shifted between 1897 (or 1907) and 1971 (when the action was tried) either through accretion or erosion, the Thorpe plan should be accepted as being a truer indicator of the high-water mark at the time of the Moore survey or at the time of the Crown grant than the Dawson plan.

In my opinion, the appellant is entitled to succeed on its alternative argument, and hence it is unnecessary to decide whether the present case is one where the common law rule of an ambulatory water boundary should be applied. Viewing the case as one where the westerly boundary of the disputed parcel was fixed by the position of the high-water mark at the time of the Crown grant, the preponderance of the evidence establishes that mark as indicated on the Thorpe plan which is more consistent with Moore’s field notes than the Dawson plan. The latter places the high-water mark at or near the positioning of the low-water mark in Moore’s field notes. Again, the Smith plan of subdivision, even if not itself a primary reference, offers confirmation of the Thorpe plan rather than of the Dawson plan.

The respondent bolstered his reliance on the Dawson plan by reference to a plan prepared by one Mosher, a surveyor engaged by the respondent to determine the boundaries of his property. Mosher did his survey in 1967 by way of a reposting of the boundaries based upon the Dawson plan of 1931 and his survey also shows a dotted line as a reconstruction of the high-water mark in the survey by Moore in 1897.

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The trial judge, as I have already noted, was of the opinion that the surveys relied upon by the respondent were in error, and neither of the judgments in the British Columbia Court of Appeal makes any reference to the Mosher plan. At best, this plan does not advance the respondent’s case beyond its position under the Dawson plan.

In the result, I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal and restore the judgment at trial. No costs were awarded at trial and I do not think that there should be any award of costs either in the Court of Appeal or in this Court.

Appeal allowed without costs.

Solicitors for the defendant, appellant: Crease & Co., Victoria.

Solicitors for the plaintiff, respondent: Russell & DuMoulin, Vancouver.