Landowners brought applications under the Beds of Navigable Waters Act seeking a determination of title to the bed of a creek running through their properties.
Under s. 1 of the Act, if the waterway was navigable at the time of the Crown grant, the bed remains vested in the Crown unless expressly granted.
The court considered historical surveys, expert evidence, photographs, and testimony regarding seasonal water levels and canoe use.
Applying established case law on navigability and the concept of “public utility,” the court found the waterway was likely navigable for significant portions of the year at the time of the 1816 Crown grant.
Consequently, the bed of the stream remained Crown property and severed the applicants’ lands.
