Municipality of Middlesex Centre v. MacMillan et al.

[Indexed as: Middlesex Centre (Municipality) v. MacMillan]

Ontario Reports

Court of Appeal for Ontario,

Doherty, G.J. Epstein and Huscroft JJ.A.

June 16, 2016

132 O.R. (3d) 497 | 2016 ONCA 475

Case Summary

Statutes — Interpretation — "Navigable" — Navigability for purposes of s. 1 of Beds of Navigable Waters Act not restricted to physical dimensions of waterway but rather depending on its actual or potential public utility — Application judge erring in finding that creek on respondents' property was "navigable" within meaning of s. 1 at time of original Crown grant where evidence did not establish that part of creek which travelled along respondent's property provided real or potential practical value to public as means of travel or transportation from one point of public access to another point of public access — Beds of Navigable Waters Act, R.S.O. 1990, c. B.4, s. 1.

The respondents attempted unsuccessfully to obtain a severance of their lot under the Planning Act, R.S.O. 1990, c. P.13 so that they could build and sell a second house. A creek ran through the middle of their property. They retained [page498] a land surveyor who offered the opinion that the creek was a navigable stream. If the creek was a "navigable body of water or stream" within the meaning of s. 1 of the Beds of Navigable Waters Act, the land forming the bed of the creek was Crown land, creating a natural severance of the lot. The respondents registered a reference plan on title showing the creek bed as Crown land and dividing their property into two parts. They conveyed Part 2 to M, who applied for a permit to build a home on it. The applicant municipality brought an application for a declaration that the creek was not a navigable stream and a declaration that the purported conveyance of Part 2 to M was void as contrary to the Planning Act. The application judge dismissed the application, holding that the creek was a navigable stream. The applicant appealed.

Held, the appeal should be allowed.

The navigability of the creek had to be determined as of the date of the original Crown grant in 1831. Navigability cannot be measured only by regard to the depth and width of the waterway. It depends on public utility. The actual exercise of the right of navigability through public use of the waterway is not a prerequisite to a finding of navigability under the Act. If the waterway is capable of serving a legitimate public interest, it may be navigable. However, the absence of any evidence that the waterway was used for any practical purpose can provide circumstantial evidence that the waterway did not have the capacity to serve any public purpose and was therefore not navigable. To be navigable, the waterway must run from one point of public access to another point of public access. Absent proof of those two points of public access, the waterway between those two points, no matter how deep or wide, has no practical value to the public as a means of transport and can serve no public utility.

The evidence relied on by the application judge was reasonably capable of establishing that the creek was navigable in fact in that it was wide and deep enough to allow a person to travel by boat along the creek over at least part of the respondent's property. However, there was no evidence of any public use for transportation-related purposes of the creek as it passed over the respondents' property. Nor was there any evidence of at least two points of public access that would have allowed the public at the time of the Crown grant to access the creek without committing trespass, travel along the part of the creek running over the respondent's property, and leave the creek without trespassing on private property. The evidence was incapable of supporting a finding that, as of the Crown grant, the part of the creek that travelled along the respondents' property provided real or potential practical value to the public as a means of travel or transport from one point of public access to another point of public access. The creek was not a navigable stream for the purposes of s. 1 of the Act.

Cases referred to

Canoe Ontario v. Reed (1989), 1989 CanLII 4237 (ON SC), 69 O.R. (2d) 494, [1989] O.J. No. 1293, 6 R.P.R. (2d) 226, 16 A.C.W.S. (3d) 396 (H.C.J.); Coleman v. Ontario (Attorney General), 1983 CanLII 3055 (ON SC), [1983] O.J. No. 275, 143 D.L.R. (3d) 608, 27 R.P.R. 107, 18 A.C.W.S. (2d) 353 (H.C.J.); Keewatin Power Co. v. Kenora (Town) (1908), 16 O.L.R. 184, [1908] O.J. No. 110, 11 O.W.R. 266 (C.A.); O'Donnell v. Ontario (Attorney General), [2013] O.J. No. 388, 2013 ONSC 590 (S.C.J.); Tadenac Club Ltd. v. Hebner, 1957 CanLII 117 (ON SC), [1957] O.R. 272, [1957] O.J. No. 624, 9 D.L.R. (2d) 282 (H.C.)

Statutes referred to

Beds of Navigable Waters Act, R.S.O. 1990, c. B.4, s. 1

Planning Act, R.S.O. 1990, c. P.13 [as am.]

The Beds of Navigable Waters Act, S.O. 1911, c. 6, s. 2 [page499]

Authorities referred to

La Forest, G.V., Water Law in Canada: the Atlantic Provinces (Ottawa: Information Canada, 1973)

APPEAL from the order of A. Mitchell J., [2015] O.J. No. 2320, 2015 ONSC 2988 (S.C.J.).

James D. Virtue, for appellant.

Analee J.M. Ferreira and E. Cormier, for respondents David MacMillan and Janice McIntosh.

No one appearing for respondent Her Majesty the Queen in Right of Ontario.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

[1] David Ronald MacMillan and Janice Lynn McIntosh (the "respondents") own and live on a ten-acre lot near London, Ontario. They decided to construct a second house on the property and sell that house. However, the applicable zoning laws allowed only one house per lot. The respondents could build the second house only if they could divide their ten-acre lot into two lots. An attempt by a previous owner to obtain a severance under the Planning Act, R.S.O. 1990, c. P.13 had failed.

[2] As luck would have it, Bear Creek (the "Creek")[^1] runs through the middle of the respondents' property. If the Creek is a "navigable body of water or stream" within the meaning of s. 1 of the Beds of Navigable Waters Act, R.S.O. 1990, c. B.4 (the "Act"), the land forming the bed of the Creek is Crown land, creating a natural severance of the parts of the respondents' lot on each side of the Creek. What was one ten-acre lot would become two lots of about five acres each.

[3] The respondents retained a land surveyor who offered the opinion that the Creek was a navigable stream. Acting on that opinion, the respondents registered a reference plan prepared by the surveyor on title to their property showing the creek bed as Crown land and dividing their property into Part 1 north of the [page500] Creek and Part 2 south of the Creek. The respondents conveyed Part 2 to Mr. MacMillan alone. He applied for a permit to build a home on Part 2.

[4] The Municipality of Middlesex Centre (the "appellant") did not agree that the Creek was a navigable stream. It brought an application seeking a declaration that the Creek was not a navigable stream and a further declaration that the purported conveyance of Part 2 to Mr. MacMillan was void as contrary to the Planning Act. The province was named as a respondent in the application. It supported the position taken by the appellant. The application judge dismissed the application holding that the Creek was a navigable stream, making the bed of the Creek Crown land and creating a natural severance of the respondents' property into two lots, one to the north of the Creek and one to the south.

[5] The appellant appeals from the order dismissing the application. It claims that the application judge misapprehended relevant evidence and considered irrelevant evidence in concluding that the Creek was a navigable stream. The appellant submits that the errors were sufficiently material to the outcome to overcome the deference owed by this court to the application judge's fact finding. The respondents resist the appeal arguing first that the application judge carefully reviewed the relevant case law and, second, that her findings were reasonably open to her on the totality of the material filed on the application. The province did not participate in the appeal.

II

[6] The respondents' property is part of Lot 32 located at the north end of Concession 10 in London Township (now the "Municipality of Middlesex Centre"). The property extends to the north to Ilderton Road, the dividing line between Concessions 10 and 11 in London Township and to the west to Vanneck Road, the dividing line between London Township and Lobo Township.

[7] The Creek flows in a generally southwesterly direction across the respondents' property, under Vanneck Road and into Lobo Township. Eventually, the Creek flows into the Sydenham River, which in turn flows into Lake St. Clair about 100 kilometres to the southwest of the respondents' property.

III

[8] Before addressing the question of navigability, I will briefly refer to two other issues that were raised on the application, but have now fallen by the wayside. The first issue arises out of the province's argument on the application that the respondents [page501] were "abusing" the Act by using it to circumvent the Planning Act. There can be no doubt that the respondents were attempting to use the Act, and in particular s. 1, to avoid the limits on severance imposed by the Planning Act. It is equally clear that the Act was never intended as an alternative means to achieve severance.

[9] The application judge held, at para. 49, that the respondents' motive for advancing its claim was irrelevant to her determination of whether the Creek was a navigable stream. I agree. Navigability is essentially a factual question based upon an assessment of the capabilities of the waterway at the time of the Crown grant. The answer to that question cannot turn on the motive of the party advancing or resisting the navigability claim over 100 years after the Crown grant. The Creek is or is not a navigable waterway. If s. 1 of the Act is having an unforeseen and unacceptable impact on effective land management in the province, the legislature can amend the Act. I observe that this is hardly the first case in which s. 1 has been relied on to achieve severance of a lot: see, e.g., Coleman v. Ontario (Attorney General), 1983 CanLII 3055 (ON SC), [1983] O.J. No. 275, 143 D.L.R. (3d) 608 (H.C.J.), at p. 611 D.L.R.; O'Donnell v. Ontario (Attorney General), [2013] O.J. No. 388, 2013 ONSC 590 (S.C.J.), at para. 3. To date, there has been no legislative reaction.

[10] The province and not the appellant advanced the argument before the application judge that non-compliance with the Planning Act or other planning laws should somehow influence the determination of whether the Creek was navigable. The appellant has not supported that position on appeal and the province has not participated in the appeal.

[11] The second issue that occupied some time on the application but has now disappeared is a factual one. The appellant led evidence on the application in support of the contention that the course of the Creek as it presently runs through the respondents' property is very different from that which had existed at the time of the original Crown grant in 1831. This was important because navigability is determined as at the time of the original Crown grant. The respondents took the position that any deviation in the watercourse was minor and of no significance.

[12] The evidence on this issue is not easy to follow. Most of the evidence focuses on the part of the Creek that passes from the respondents' property under Vanneck Road into Lobo Township and the work done in 1969 to deepen the Creek for drainage purposes. By the end of the application, the appellant had conceded that the Creek as it traverses the respondents' property follows the same waterway that existed at the time of the initial [page502] Crown grant (see reasons, at paras. 17, 44-45). The appeal has proceeded on the same basis.

IV

Navigability

[13] Under the common law of England, title to the bed of a navigable stream depended on whether the stream was tidal or non-tidal. If the former, the Crown retained title of the bed. If the latter, the landowner on either side held title to the mid-point of the stream: see Keewatin Power Co. v. Kenora (Town) (1908), 16 O.L.R. 184, [1908] O.J. No. 110 (C.A.), at pp. 188-89 O.L.R. However, in Ontario, unlike England, a public right of navigation did not depend on ownership of the bed of the body of water in question. The public right of navigation in Ontario extended to all navigable waters. As Professor La Forest puts it, "the rule is that if the waters are de facto navigable, the public right of navigation exists there, whether the waters are tidal or non-tidal": see G.V. La Forest, Water Law in Canada: the Atlantic Provinces (Ottawa: Information Canada, 1973), at pp. 178-80; Tadenac Club Ltd. v. Hebner, 1957 CanLII 117 (ON SC), [1957] O.R. 272, [1957] O.J. No. 624 (H.C.), at pp. 274-75 O.R.

[14] In 1911, the Ontario legislature abandoned the common law distinction between tidal and non-tidal navigable waters for the purposes of determining title to the bed of waters. Section 2 of the The Beds of Navigable Waters Act, S.O. 1911, c. 6 provided that subject to an express grant by the Crown, title to the bed of any navigable water did not pass with the Crown grant and remained with the Crown. Subject to specified exceptions, the Act applied retroactively to Crown grants that preceded its enactment.

[15] The present equivalent of s. 2 of the 1911 Act is s. 1:

1. Where land that borders on a navigable body of water or stream, or on which the whole or a part of a navigable body of water or stream is situate, or through which a navigable body of water or stream flows, has been or is granted by the Crown, it shall be deemed, in the absence of an express grant of it, that the bed of such body of water was not intended to pass and did not pass to the grantee.

[16] The parties agree that the original Crown grant of the respondents' property in 1831 did not contain an express grant of title to the Creek bed and that no express grant has been made since then. The parties also accept that s. 1 of the Act applies retroactively to the Crown grant of 1831 and that the navigability of the Creek must be determined as of that date: see Coleman, at p. 612 D.L.R. If the Creek was a navigable stream [page503] in 1831, title to the Creek bed resides in the Crown. If the Crown has title to the Creek bed, the Creek bed severs the respondents' lot into two lots, one north and one south of the Creek.

[17] A stream is navigable if there is a right of navigability along that stream. The right of navigability is a right of reasonable passage for public purposes along a waterway. The right is akin to the public right of passage on a highway: Coleman, at p. 613 D.L.R.; Canoe Ontario v. Reed (1989), 1989 CanLII 4237 (ON SC), 69 O.R. (2d) 494, [1989] O.J. No. 1293 (H.C.J.), at p. 502 O.R. The right of navigability entitles the public to use the waterway as a means of transportation. The right does not extend to use for purely private purposes, or to other uses such as fishing and irrigation: see La Forest, Water Law in Canada, at pp. 178-82; Coleman, at p. 614 D.L.R.

[18] The right of navigability can only exist if the waterway is physically capable of being traversed by a boat of some sort.[^2] However, what Henry J. in Coleman, at p. 613 D.L.R., referred to as "navigable in fact", does not, standing alone, establish a right of navigability. Navigability cannot be measured only by regard to the depth and width of the waterway. In addition to being physically capable of use for transportation by boat, the waterway must also be capable for use as transportation in relation to a public purpose such as commerce, agriculture or recreation: La Forest, Water Law in Canada, at p. 180; Coleman, at pp. 614, 616-17 D.L.R.

[19] The requirement that a waterway be capable of practical public use is a reflection of the public nature of the right of navigability. In my view, the meaning of the word "navigable" in s. 1 of the Act must be informed by, and be consistent with, the nature of the right of navigability. As explained in Canoe Ontario, at pp. 502-503 O.R.:

In essence, the test for navigability developed in Canada is one of public utility. If a waterway has real or potential practical value to the public as a means of travel or transport from one point of public access to another point of public access, the waterway is considered navigable.

Navigability should depend on public utility. If the waterway serves, or is capable of serving, a legitimate public interest in that it is, or can be, regularly and profitably used by the public for some socially beneficial activity, then, assuming the waterway runs from one point of public access [page504] to another point of public access, it must be regarded as navigable and within the public domain.

(Emphasis added; citations omitted)

[20] Because the right of navigability is a public right that exists independent of any prior grant of the right and of the actual exercise of the right, navigability is determined by the waterway's realistic potential to meet the criteria of navigability. The actual exercise of the right of navigability through public use of the waterway is not a prerequisite to the existence of the right, or a finding of navigability under the Act. If the waterway is capable of serving a "legitimate public interest", it may be navigable: Canoe Ontario, at p. 503 O.R.

[21] Although actual public use is not a prerequisite to a finding of navigability, the absence of any evidence that the waterway was used for any practical public purpose can provide circumstantial evidence that the waterway did not have the capacity to serve any public purpose and was therefore not navigable.

[22] The public utility rationale underlying the right of navigability is also evinced by the requirement that the waterway runs from one point of public access to another point of public access. The public does not have the right to go across private land to get onto a navigable waterway, but must access the waterway from a point of public access. Similarly, the public does not have a right to go across private land upon leaving the navigable waterway. Egress must be by way of a route to which there is a right of public access. Absent proof of those two points of public access, the waterway between those points, no matter how wide or deep, has no practical value to the public as a means of transport and can serve no public utility.

[23] Navigability is determined by reference to a specific location along the waterway. The question is not whether Bear Creek as a whole is navigable, but rather whether the Creek as it runs over the respondents' property is navigable: Coleman, at p. 614 D.L.R.

V

[24] The appellant accepts that the application judge identified the correct legal principles relevant to the definition of "navigable" in s. 1 of the Act. The appellant's submissions focus on the application judge's findings of fact, at para. 67, underpinning her conclusion that the Creek was navigable:

Instead, I find the evidence of Mr. MacMillan gleaned from his research of the historical records and the measurements and observations of Mr. Burwell contained in his field notes compelling. The totality of this evidence is [page505] sufficient to find that it is more probable than not that the watercourse was not only "capable of public use" in 1831 but was actually used by the public. Its dimensions could support commercial and/or recreational use. We know that it was of sufficient depth to support irrigation activity. At times at or about the time of the Crown grant, the watercourse was difficult to traverse due to its depth. A petition to "improve navigability" of Bear Creek was brought on behalf of numerous affected landowners a mere four years after the original grant. This suggests there was widespread navigation of Bear Creek which includes the watercourse. There is no evidence of points of access whether current or historical. Such evidence is not required. The watercourse is part of a larger river system which ultimately finds its way to Lake St. Clair. It was capable of constituting an aqueous highway for public, commercial and/or recreational use at the time of the original Crown grant regardless of whether or not it was considered by the public useful for such purposes.

[25] In the above passage, the application judge identifies three areas of the evidence in support of her finding that the Creek was navigable:

• the measurements and observations made by Mr. Burwell, the land surveyor who in 1819 surveyed London Township along what is now Vanneck Road;
• evidence from various sources of the depth of the Creek at least at the point where it crossed what is now Vanneck Road into Lobo Township; and
• evidence of petitions seeking to maintain and improve the navigability of Bear Creek placed before the government in 1833 and 1835, shortly after the initial Crown grant of the respondents' property in 1831.

[26] The evidence relied on by the application judge was reasonably capable of establishing that the Creek was "navigable in fact". Mr. Burwell, the original surveyor, calculated the width of the Creek at some 33 feet where it passed from the respondents' property into Lobo Township. Mr. Wilband, the respondents' surveyor, measured the width at 25 feet at about the same point. Other evidence, including anecdotal evidence in at least one historical text, indicated that the Creek had sufficient depth at that site, especially at certain times of the year, to permit transportation by boat along the Creek. On the totality of the evidence, the application judge could reasonably conclude that the Creek was wide enough and deep enough to allow a person to travel by boat along the Creek over at least part of the respondents' property.

[27] The evidence of potential practical public use, apart from the dimensions of the Creek, was considerably slimmer. The only evidence referred to by the application judge capable of establishing capacity for public use was the evidence of the petitions [page506] filed with the colonial government in 1833 and 1835 respecting the navigability of Bear Creek. The 1833 petition was brought by Robert Johnson, a resident of the Township of Adelaide. Adelaide is located two townships to the southwest of the respondents' property.

[28] Mr. Johnson brought the 1833 petition on behalf of "a numerous majority of immigrant settlers in the several townships of Adelaide, Warwick, Brooke, Lobo, Caradoc". Those townships are all to the southwest of London Township.

[29] Mr. Johnson's petition said, in part, that the petitioners:

[A]re prepared to prove that the said river of Bear Creek to have been navigable for time immemorial from Lake St. Clair to Underwood's Mill in Caradoc compromising an extent of upwards of one-hundred miles but Maps Taylor and Company. Millers and divers other persons have recently and completely obstructed the natural course of the navigation and the fishery thereof by having erected mill dams and other acts of Trespass they persist in constructing although your petitioner has given due notice to the offending parties to abate without effect.

[30] The petitioner requested the government's immediate assistance to end the "illegal infraction of the laws for protection of navigation, commerce and fisheries".

[31] The 1835 petition sought a "Charter authorizing the improvement of the Navigation of Bear Creek, in the Western District". In 1835, the Western District included Warwick and Brooke, two of the townships referred to in the 1833 petition. It did not include the Townships of Lobo, Adelaide or Caradoc. Those townships, like London Township where the respondents' property was located, were part of the London District in 1835.[^3] As the name implies, the Western District was to the west (and somewhat to the south) of London Township and extended to Lake St. Clair.

[32] The 1833 and 1835 petitions are strong evidence of the potential public utility of the Creek in the Western District generally and as described in the 1833 petition, between Underwood's Mill in Caradoc and downstream, southwest, to Lake St. Clair. There is no evidence of where in Caradoc Township Underwood's Mill was located. The respondents' property is [page507] located upstream from Underwood's Mill and the Western District. Lobo Township lies between Caradoc Township and London Township where the respondents' property is located. There is no evidence of the distance along the Creek between Underwood's Mill and the respondents' property.[^4] Perhaps most importantly, there is no evidence about the state of the Creek between Underwood's Mill and the respondents' property at the time of the Crown grant. On the record before the application judge, there was no way of knowing whether that part of the Creek was capable of serving any practical public purpose.

[33] The application judge found that the petitions indicated "widespread navigation of Bear Creek which includes the watercourse". In my view, the petitions provided evidence of navigation on the part of the Creek referred to in the petitions. However, without evidence of the state of the Creek between the location described in the 1833 petition and the respondents' property, it was unreasonable and speculative to infer that the navigability of the Creek as it passed over the respondents' property was the same as or similar to the navigability of the Creek several kilometres downstream. The evidence of the 1833 and 1835 petitions, standing on their own without any evidence describing the Creek between Underwood's Mill and the respondents' property, could not reasonably assist in establishing the potential practical public utility of the Creek as a means of public transportation through the respondents' property.

[34] The application judge was left only with the evidence of the dimensions of a part of the Creek as it passed from the respondents' property into Lobo. There was little, if any, evidence about the dimensions of the Creek in other parts of the respondents' property. There was no evidence of any public use for transportation related purposes of the Creek as it passed over the respondents' property. Nor was there any evidence of at least two points of public access that would have allowed the public at the time of the Crown grant to access the Creek without committing trespass, travel along the part of the Creek running over the respondents' property and leave the Creek without trespassing on private property. Without evidence of the public's ability to legally access and egress the part of the [page508] Creek passing over the respondents' property, that part of the Creek could have no potential practical public utility as a means of transportation.

[35] The evidence at its highest shows that a person could travel by boat over some part of the Creek as it passes along the respondents' property. There is no evidence of any practical purpose for doing so in 1831. The evidence is incapable of supporting a finding that as of the Crown grant, the part of the Creek that travelled along the respondents' property provided "real or potential practical value to the public as a means of travel or transport from one point of public access to another point of public access": see Canoe Ontario, at p. 502 O.R.

[36] In her helpful submissions, counsel for the respondents, in addition to arguing that the evidence could support the application judge's findings, advanced two other arguments in support of her submission that the appeal should be dismissed. Counsel argued that it would be unfair to the respondents to find against them on the question of navigability given the holding in O'Donnell. Counsel submits that in O'Donnell, the trial judge held that the stream was navigable on evidence which was arguably significantly weaker than the evidence mustered by the respondents. Counsel submits that the respondents should be entitled to rely on O'Donnell as creating a reasonable expectation that the Creek as it runs through their property would also be found to be navigable.

[37] Cases turn on their own facts. O'Donnell dealt with a different stream and a different set of facts. This court is not asked to review the correctness of the decision made in O'Donnell and I do not propose to do so.

[38] The result in O'Donnell can create no reasonable expectation of any particular result in this case. The respondents are entitled to have their case decided on its own facts according to the law of navigability in this province. As I have endeavoured to demonstrate, navigability is about more than the width and depth of a stream. If O'Donnell can be read as suggesting otherwise, it does not represent the law in this province.

[39] Counsel for the respondents also argued that in assessing the evidence offered by the respondents in support of their navigability claim, the court should make some allowance for the difficulty inherent in proving a state of affairs as of 1831. Certainly, the court cannot demand a quality of evidence which, in the circumstances, is not reasonably available. Consequently, the court will carefully consider reputable historical sources like those proffered in this case without becoming [page509] unduly concerned about the technical confines of evidentiary rules like the hearsay rule.

[40] I do not agree, however, that this court should approach the evidence offered by the respondents any differently than the evidence offered by the appellant. The respondents had the onus of establishing navigability as of 1831. Neither side had an advantage over the other in producing evidence relevant to that question.

[41] Nor, in my view, is there any reason for the court to feel any need to lend a sympathetic ear to the respondents' evidence. The respondents are trying to get around the Planning Act. As indicated above, that motive has no impact on the meaning of navigability under the Act. The motive does, however, discourage any inclination to rush to the respondents' assistance with a benevolent interpretation of the evidence.

VI

Conclusion

[42] The evidence was not capable of establishing that the Creek as it passed over the respondents' property was a navigable stream within the meaning of s. 1 of the Act. Title to the bed of the Creek does not lie with the Crown. There is no natural severance of the respondents' property.

[43] I would allow the appeal, set aside the order of the application judge, and substitute an order in the terms of the relief sought in paras. 51(a)(i)-(v) of the appellant's factum. As agreed, the appellant, as the successful party on the appeal, shall have its costs of the appeal fixed at $8,000, inclusive of disbursements and relevant taxes.

[44] The application judge awarded costs to the respondents in the amount of $50,000. That order may change in light of this court's disposition. The court will receive written submissions of no more than five pages as to the appropriate cost order on the application. The appellant will serve and file its written submissions within 21 days of the release of these reasons. The respondents will serve and file their response within 21 days of receipt of the appellant's submissions.

Appeal allowed.

[page510]

Notes

[^1]: The waterway running through the respondents' property is given various names in the material. The appellant prefers to call it a drainage ditch and the respondents prefer to call it part of the Sydenham River. Ultimately, the name is irrelevant. I will call it Bear Creek, the name used in the historical material.

[^2]: Navigable can also mean floatable in the context of the timber trade. I need not address that concept in these reasons: see Coleman, at p. 614 D.L.R.

[^3]: An Act to repeal part of an Act passed in the thirty-eighth year of His late Majesty's Reign, entitled "An Act for the better division of this Province" and to make further provision for the Division of the same into Counties and Districts, S.U.C. 1821 (2 Geo. IV), c. 3, s. 11; An Act to form certain Townships in the London District into a County, and to attach certain Townships in the Counties of Middlesex and Kent, in the London and Western Districts, S.U.C. 1835 (5 Will. IV), c. 45, ss. 2-3.

[^4]: The material does contain a map with a scale of Lobo Township. The map is taken from a text entitled "The Heritage of Lobo 1820-1990". As near as I can tell, the Creek travels a distance of about 13 kilometres across Lobo Township. The distance between the respondents' property and Underwood Mill is therefore something more than 13 kilometres.