Paul Miller

The appellant appealed a trial decision determining the terminus of a lot line between two waterfront properties on a controlled lake.

The trial judge found that the term 'High Water Mark' on the registered plan unambiguously referred to the Normal Controlled High Water Level.

The Court of Appeal allowed the appeal, finding that the term created a latent ambiguity and that the original subdivider intended to convey all the land it owned, which extended to the water's edge at the time of the 1902 Crown patent.

The matter was remitted to the trial court to determine the water's edge at the time of the Crown patent and the effects of any subsequent erosion or accretion.

The applicants and respondent disputed the termination point of the lot line between their adjacent waterfront properties on Jack Lake, a controlled body of water.

The applicants argued the line ended at the normal controlled high water level, while the respondent argued it ended at the original natural water level prior to damming.

The court found that on a controlled body of water, the 'High Water Mark' shown on the subdivision plan presumptively refers to the normal controlled high water level.

The court granted a declaration in favour of the applicants, establishing the boundary at the contour elevation of 106.33 feet.