Court of Appeal for Ontario

Date: 2023-03-23 Docket: C70351

Fairburn A.C.J.O., Brown and Sossin JJ.A.

Between:

John Owen Tyler and Kimberly Diane Tyler Plaintiffs (Respondents/Cross-Appellants)

And:

George Eadie and George Eadie as executor of the Estate of Susan Eadie Defendants (Appellants/Cross-Respondents)

And Between:

George Eadie Plaintiff by Counterclaim (Appellant/Cross-Respondent)

And:

John Owen Tyler, Kimberly Diane Tyler and John Doe and Jane Doe, as executors of the Estate of Hazel Everett Defendants by Counterclaim (Respondents / Cross-Appellants)

Counsel: Gregory Roberts, for the appellants and cross-respondents John Mastorakos, for the respondents and cross-appellants

Heard: March 15, 2023

On appeal from the judgment of Justice J. Christopher Corkery of the Superior Court of Justice dated November 1, 2021, with reasons at 2021 ONSC 7252, 2022 ONSC 4203, and 2022 ONSC 4205.

Reasons for Decision

[1] This appeal concerns a dispute over a shared boundary between lakefront cottage properties and the location of the appellants’ (the Eadies) dock vis-à-vis the respondents’ (the Tylers) land and riparian rights.

[2] The trial judge held that it was the intention of the grantors, Hazel Everett and subsequent subdividers, to convey all the land they owned fronting on Balsam Lake that was not submerged, and that the boundary therefore extended to the water’s edge rather than any definite length based on a bank or high water mark.

[3] After considering the varied surveys of the area, including undefined references to the water boundary as the “high water line” and “high water mark”, the trial judge found that the common boundary between the parties’ properties (the “Tyler property” and the “Eadie property”) terminates at the water’s edge of Balsam Lake. The trial judge described this boundary as “ambulatory” as the water’s edge will move depending on the water level, a factor controlled by the authorities responsible for the Trent-Severn Waterway.

[4] The trial judge further found that the land under the Eadie dock was successfully adversely possessed by the Eadies. That said, the trial judge went on to find that the Eadie dock’s placement could not interfere with the Tylers’ riparian rights, meaning that the use of the dock cannot impede the Tylers’ access to navigable water.

[5] In the result, para. 2 of the Judgment granted by the trial judge described the termination of the common property line as “an ambulatory boundary, and its physical location continues to move in and out, to ambulate, to the extent that the water level rises and falls.” However, para. 4 of the Judgment states that “the Tylers and any subsequent owners in title of the Tyler property shall not launch from or occupy any land or water to the east side of the Eadie dock as it impairs the riparian rights of Eadie and his successors in title.” As we read the Judgment, the combined effect of paras. 2 and 4 is to treat the western edge of the Eadies’ dock as the functional equivalent of a kind of boundary-line fence that marks out, for all practical purposes, the eastern limit of the Tyler property.

[6] In the main appeal, the Eadies submit that the trial judge erred in his finding with respect to the waterfront boundary between the Tyler and Eadie properties, and in his application of Ontario (A.G.) v. Walker (1970), 1 O.R. 151 (H.C.J.), aff’d (1972), , 2 O.R. 558 (C.A.), aff’d , [1975] 1 S.C.R. 78. The Eadies further argue that the trial judge’s decision is incompatible with this court’s decision in Becker v. Walgate, 2020 ONCA 491.

[7] According to the Eadies, the proper terminus of the boundary is at 123 feet, based on the grant’s description. The property was made by a definite conveyance and was bounded. It was not dependent on the water’s edge. Alternatively, the water’s edge has since moved and receded, and the unsubmerged lands should be equitably divided between the owners.

[8] The Eadies argue that the receding of the water’s edge in the case of their property is due to accretion (i.e., the gradual increase in the land area over time due to natural factors), as opposed to avulsion (i.e., a sudden and perceptible change to a water boundary through, for example, natural or engineered flooding). The distinction between accretion and avulsion was set out in Clarke v. Edmonton (City), [1930] S.C.R. 137, [1929] 4 D.L.R. 1010, at pp. 144, 147. At common law, where there is accretion, the additional land becomes part of the land to which it is attached, whereas if land is added through avulsion, the boundaries of the landowner’s property is unaffected.

[9] In this case, the expert evidence did not establish a basis either in accretion or avulsion for the receding water line. In the absence of such evidence, the Eadies urge this court to recognize a presumption that absent clear evidence of avulsion, the extension of beach land and alterations to the water line are due to accretion. Such a rule has been adopted by American courts and the Eadies argue this principle would simplify boundary claims, reduce litigation, and provide a degree of certainty and clarity to this field of law that is now lacking.

[10] The Tylers maintain that the water’s edge is the proper terminus of the shared boundary, and that the trial judge properly used the “123 feet” description of the length of the boundary line in the relevant grant as an interpretive guide. The Tylers argue that this is not an appropriate case in which to develop a new legal presumption of accretion.

[11] On cross-appeal, the Tylers, as cross-appellants, challenge the adverse possession holding of the trial judge. They submit that the trial judge’s reasons on adverse possession were insufficient and that, in any event, in light of evidence to the contrary, the trial judge erred in fact on finding effective exclusion of the Tylers by the Eadies.

[12] The Eadies, as cross-respondents, disagree. They contend that all the elements of adverse possession were made out.

[13] When the Judgment is read as a whole, we are not persuaded that the trial judge committed any error that merits our interference with it.

[14] First, with respect to the trial judge’s decision on the proper boundary between the two properties, the trial judge made findings which were open to him on the record. He properly characterized the court’s fundamental objective in cases such as this one as determining the intention of the original deed holders. He found on the evidence that the original grantor, Hazel Everett, and subsequent subdividers intended to convey “all the land they owned fronting on Balsam Lake that was not submerged, whether or not they knew that they may have had an interest in the submerged lands” (emphasis in original).

[15] There are certain aspects of the trial judge’s decision which could have been clarified. For example, the trial judge appeared to read Walker as standing for the general proposition that where a boundary line terminates at the water’s edge, the property’s boundary will be the water’s edge at a moment in time and not upon any bank or high-water mark. Walker is more properly understood as a case which emphasizes the need for boundary disputes involving waterfront properties to be determined by a careful examination of the language of the grant and the surveys, plans, surveyors’ field notes, documents and relevant correspondence. In Walker, this led to a determination of the waterfront boundary at the water’s edge, but such an examination could result in boundaries involving high water marks or other water levels depending on the circumstances.

[16] In this case, while citing Walker in support of his conclusion, the trial judge did not treat Walker as determinative of the waterfront boundary between the Tylers and Eadies. Rather, he engaged in precisely the examination of the grants, surveys and evidentiary record called for in Walker. We reject the Eadies’ argument that the trial judge’s analysis of the boundary dispute in this case constituted a reversible error.

[17] We would also reject the Eadies’ contention that the trial judge failed to apply this court’s decision in Becker. In Becker, this court overturned a decision on water boundaries on the basis that there was a failure to appreciate the ambiguity of the grant and a closer examination of the record should have been done to determine the intentions of the grantor. In this case, the trial judge did examine the record and made the necessary findings with respect to the intentions of Hazel Everett (and the subsequent subdividers).

[18] We conclude that the trial judge’s disposition of the water boundary dispute was appropriate.

[19] We also do not see it as necessary or warranted in this case to alter the existing law with respect to the legal implications of accretion and avulsion.

[20] Second, with respect to the cross-appeal involving the trial judge’s finding that the Eadies adversely possessed the land under its dock which was part of the grant covered by the Tyler property, it would have been preferable for the trial judge to provide additional elaboration of his findings giving rise to his conclusion of adverse possession. That said, he set out the proper threshold for adverse possession (relying on this court’s decision in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 333 O.A.C. 381), referred to evidence that the Eadies had actual possession of the land under the dock as of their purchase of their property on November 7, 2002, intended to exclude the Tylers from possession, and effectively excluded them until at least March 2013, when Mr. Tyler dismantled the Eadie dock. The trial judge concluded, at para. 118, that he was “satisfied that the Eadies had possession of the land under their dock that was open, notorious, peaceful, adverse, exclusive, actual and continuous and, as such, have established adverse possession of that land.” We see no basis to interfere with this conclusion. There was evidence in the record capable of supporting such a finding and it is entitled to deference.

Disposition

[21] For these reasons, we dismiss both the appeal and the cross-appeal.

[22] We make no order as to costs.

“Fairburn A.C.J.O.”

“David Brown J.A.”

“L. Sossin J.A.”