COURT FILE NO.: 198/15

DATE: 20190411

CORRECTED DECISION RELEASED: 20190417

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Martha Leeanne Becker and Jason John Becker

Applicants/Plaintiffs

– and –

Walter Eddy Walgate

Respondent/Defendant

Jeffrey D. Ayotte, for the Applicants

Eldar Babayev, for the Respondent

HEARD: May 29, 30, 31, June 1, 6, 11 July 9, 10, 11, 12, 2018

CORRECTED - The year 2018 has been added after the dates that this matter was heard.

corkery j.

A. Overview

[1] This is a dispute between neighbours over approximately 100 feet of valuable waterfront. The parties own adjacent properties on Jack Lake. They disagree on where the lot line between their properties ends at the lake. Near the lake, the disputed lot line runs almost parallel to the water’s edge. As a result, the intersection of the lot line with the water’s edge varies significantly depending on the water level of Jack Lake.

[2] The line in dispute lies between Lots 41 and 42, Registered Plan 33, in the Township of Methuen. Lots 41 and 42 have each been severed into smaller parcels; however, the line between Lots 41 and 42 remains the boundary between the parties’ properties. Mr. Walgate owns the most westerly parcel of Lot 41, described in P.I.N. 28260-0315LT. The Beckers own the most easterly parcel of Lot 42, described in P.I.N. 28260-0314LT.

[3] Due to the topography of the shore and the location and direction of the lot line, at the water’s peak level, the water “touches” the lot line during June or July of each year. For most of the year, however, the water stays several feet away from the lot line and the Walgate property enjoys a lengthy beach on its side of the lot line.

[4] The Beckers seek an order declaring that the lot line terminates at its intersection with the water’s edge at the “normal controlled high water level” of Jack Lake.

[5] Mr. Walgate seeks an order declaring that the lot line terminates at its intersection with the water’s edge at the level of Jack Lake in its natural state at the time of the Crown patent.

[6] Simply put, the issue is what water level for Jack Lake is to be used to find the termination point, which is the intersection of the lot line with the water’s edge.

B. The evidence at trial

1. Agreed Statement of Facts

[7] The parties filed an agreed statement of facts that provides a helpful chronology.

a) The lumberman’s dam

[8] Prior to the Crown patent, a lumberman’s dam existed on Jack Lake. The parties disagree on whether the lumberman’s dam was holding back water in 1902.

b) The Crown patent, 1902

[9] The properties were part of a 152-acre parcel patented by the Crown on April 2, 1902. The parcel is shown on a survey by Alfred J. Cameron dated September 23, 1901 (the “Cameron Survey”). It is composed of “broken lots”. A broken lot is one which is reduced in size because of a waterbody which lies within a portion of the rectangular shape of a regular lot, and which forms one of the limits of the lot.

[10] Subject to a reservation, the Crown patent appears to have deeded lands fronting on Jack’s Lake at the water level at the time of the Cameron Survey. The Crown patent includes the following reservation:

saving, excepting and reserving nevertheless, unto Us, Our Heirs and Successors the free use, passage and enjoyment of, in, over, and upon all navigable waters which shall or may hereafter be found on or under or be flowing through or upon any part of the said Parcel or Tract of Land hereby granted as aforesaid, reserving also right of access to the shores of all rivers, streams and lakes for all vessels, boats and persons, together with the right to use so much of the banks thereof, not exceeding one chain in depth from the water's edge, as may be necessary for fishery purposes.

c) Dominion Dam constructed, 1910

[11] A few years after the patent, the Dominion Government decided to use Jack Lake for water storage. In 1910, the government replaced the lumberman’s dam with a dam with two sluices at the south end of the lake (the “Dominion Dam”). Jack Lake is now a reservoir lake within the Trent-Severn Waterway.

d) Release instrument registered, 1932

[12] In 1932, the Crown settled a claim by Helen Gill Robbins, the successor of the patentee, for damages as a result of flooding of her lands. A release dated December 7, 1932, was registered by Instrument No. 750 on title to the lands, and included the subject properties.

[13] The parties agree that the preamble in the release describes its purpose. It reads:

WHEREAS the party of the first part is the owner in fee simple of the lands hereinafter described, being certain islands in Jack’s Lake and certain lands facing on the shores of Jack’s Lake in the County of Peterborough, she having received conveyances of the hereinafter described lands in or about the year 1902.

AND WHEREAS prior to the year 1910, a lumbermen’s dam, at the outlet of the said lake, which held the water at a certain level during the Spring of the year, admitted of the said lake being later drained to its natural level.

AND WHEREAS in or about 1910 in connection with the preservation of water for the Trent Canal, the Department of Railways and Canals of the Dominion of Canada constructed a new dam, having its crest 2’ 10” higher than the old dam.

AND WHEREAS the party of the first part [Helen Gill Robbins] some years ago set up that her property, being the lands hereinafter described, had been and were being damaged by flooding by reason of the raising of the water level of the said lake by the new dam as aforesaid.

AND WHEREAS in or about the year 1912 the party of the first part made claim against the party of the Second Part [the Crown] for compensation for damage which she alleged she had suffered and was suffering by the aforesaid flooding of the hereinafter described lands as aforesaid.

AND WHEREAS the party of the first part has agreed to accept the sum of Four Hundred Dollars ($400.00) from the party of the Second Part in full settlement of all past, present and future damages to the hereinafter described lands due to the water of said Jack’s Lake being kept to a height of 8’6” on the sill of the East sluice of said Jack’s Lake Dam, being the maximum level permitted under present regulations.

[14] The operative language of the release states:

NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the premises and of the sum of Four Hundred Dollars ($400.00), now paid by the party of the Second Part to the party of the first part, the receipt whereof is by her acknowledged, the party of the first part for herself her heirs, executors, administrators and assigns, doth hereby remise, release, and forever discharge the Party of the Second Part and His Successors, in the rights of the Dominion of Canada, of and from all manner of actions, causes of action, debts, accounts, covenants, contracts, claims and demands whatsoever which against the Party of the Second Part the party of the first part ever had, now has, or which the party of the first part, her heirs, executors, administrators or assigns or any of them hereafter can, shall or may have for or by reason of the water of said Jack’s Lake being kept to a height of eight feet six inches on the sill of the east sluice of said Jack’s Lake Dam by the Party of the Second Part, thereby causing damages by flooding...

e) Plan 33, 1957-8

[15] In 1958, the Jack Lake Land Company (the “JLL Company”) subdivided the land pursuant to Registered Plan 33. Registered Plan 33 was surveyed on the ground by W.A. Beninger between March 8, 1957 and May 30 1958.

[16] At the time Mr. Beninger surveyed Plan 33, the Jack Lake water level was artificially controlled by the Dominion Dam.

[17] On Plan 33, the disputed lot line is defined by two iron bars. The lot line starts at the first bar and runs 268.22 feet on the N 56° 25' E bearing to the second bar. Beyond the second bar, the line extends north easterly on the same bearing a further “85 feet +/-” to a heavy curved line marking the limit of Jack Lake. The Plan Legend indicates that this heavy line is the “High Water Mark.”

[18] In creating Plan 33, Mr. Beninger attempted to retrace the Cameron Survey; however, it was impossible to do so. The field notes of Mr. Beninger indicate that the Cameron Survey was poorly done as it appeared Cameron only completed a rough shore traverse.

[19] Plan 33 includes an Owner’s Certificate stating that the boundaries were laid out in accordance with the instructions of the JLL Company and a Surveyor’s Certificate which states that the plan accurately shows the manner in which the lands were surveyed and subdivided by Mr. Beninger.

[20] The intention of the JLL Company is well-documented in a typewritten note dated February and March 1957 in which Mr. Beninger states that the owner asked him to survey the land and prepare Plan 33. The relevant parts of the note states:

They requested a survey of the narrows parcel only. This survey was to include a shore traverse and running and posting of all the rear lines. In doing the shore traverse it was notes [sic] that the land company had themselves [sic] already set 2” x 2” marker posts with lot numbers at roughly 500 foot intervals along the shore, it being their intention to sell lots with minimum 500 foot frontages [...]. Since it entailed little extra work the position of these marker stakes was notes [sic] while doing the shore traverse and shown on the plan.

f) Transfer of Walgate property, 1974

[21] On September 11, 1974, JLL Company transferred the Walgate property to Viceroy Construction Company Limited. The company ceased to operate after this transaction. The deed transferred the Walgate property pursuant to the boundaries as set out in Plan 33 and contained the following restrictive covenant:

3. That one boathouse may be built with combined slips not exceeding twenty feet in width, said dimension referring to slip only.

[22] Walter Walgate purchased his property pursuant to the legal description as set out in Plan 33.

g) Subsequent surveys of the subject properties

[23] Further subdivision of subject properties is described in subsequent reference plans. On these plans, the water boundary is described as follows:

Lot 41

45R-2941

May 1, 1978

High Water Mark

Lot 42

45R-6411

August 27, 1987

Normal Controlled High Water Level Contour of Elevation 106.33 (feet) Also Limit of Lot 42 Reg'd Plan No 33.

Lot 42

45R-9147

October 2, 1991

Normal Controlled High Water Level Contour of Elevation 106.33 (feet) Also Limit of Lot 42 Reg'd Plan No 33.

Lot 42

45R-12556

December 20, 2002

Normal Controlled High Water Level Contour of Elevation 106.33 (feet) Also Limit of Lot 42 Reg'd Plan No 33

[24] Plans 45R-6411 and 45R-9147 also carry the notation "The Original High Water Mark of Jack Lake cannot be determined with any certainty therefore a portion of Lot 27 Concession 9 may lie in front of Parts 1 and 3"

[25] A building location survey of Lot 41 by Thos E. Lyons dated February 22, 1989, described the water boundary as “High Water Mark”.

2. The Expert Evidence

[26] Two witnesses testified. A surveyor was called by each side. Shawn O’Connor and Paul Miller were recognized as experts in surveying and were qualified to provide opinions as to where the terminus of the lot line between the properties lies and how that end point is determined.

[27] Unfortunately, the experts did not meet and prepare a consolidated report before trial, as directed by Gunsolus J. They have different opinions and disagree in their respective approaches and conclusions. In their reports and testimony, Mr. O’Connor and Mr. Miller used different “vertical datum” or starting points for the elevations they referred to. Mr. O’Connor used an “assumed datum” (“a.d.”) of 100 feet for the sill of the east dam of the Dominion Dam. Mr. Miller used elevations referenced to the “CGVD28 datum”, a datum which closely approximates mean sea level to be zero. The east dam sill using the CGVD28 datum is 908.8 feet.

[28] Mr. O’Connor says the lot line terminates where it intersects the water’s edge of Jack Lake at its “normal controlled high water level” (the “NCHWL”), which is 106.33 feet (a.d.).

[29] Mr. Miller says the line terminates where it intersects the water’s edge of Jack Lake at its original level before it was controlled by any dam. He estimates the elevation of the original lake level to be 909.1 feet (CGVD28 datum) or 100.3 feet (a.d.), plus or minus 0.3 feet.

[30] Plan 33 shows the disputed line extending beyond the second bar a further 85 feet +/- to the High Water Mark. Mr. O’Connor’s plan shows the disputed line extending beyond the second bar, less than 22 feet. Mr. Miller’s plan shows the disputed line extending beyond the second bar 126 feet +/-. The difference in their respective termination points represents over 100 feet of waterfront.

a) Shawn O’Connor, the applicant’s expert

[31] Mr. O’Connor’s opinion is that the end of the disputed lot line can be determined by reference to Plan 33. The plan shows that the line ends where it intersects the heavy line representing the high water mark. As Jack Lake is an artificially controlled lake, regulated by the Dominion Dam, the high water mark in this case can only be the water’s edge at the NCHWL. Mr. O’Connor explained that the interpretation of “high water mark” has been the subject of some dispute among surveyors in the past. However, on a controlled body of water the meaning of “high water mark” is clear. It is the water’s edge at the NCHWL.

[32] Jack Lake is controlled by the Dominion Dam. It can raise the lake level to a maximum of 108.5 feet, the level permitted by Instrument 750. It can drain the lake down to 100 feet, the level of the east sluice. During the navigational season on the Trent-Severn Waterway, from the long weekend in May through to the Thanksgiving weekend in October, Parks Canada maintains the lake at the NCHWL, 106.33 feet. During the remainder of the year they maintain the lake at the normal controlled low water level, approximately three feet lower.

[33] The normal practice of surveyors is to use observations of the vegetation and markers on the ground as a proxy to determine the water’s edge of a lake at the high water level. On a controlled lake, the same method is used to locate the NCHWL. Yet, this does not appear to be what Mr. Beninger did.

[34] Mr. O’Connor believes that Mr. Beninger’s survey crew did a shoreline traverse of Jack Lake on the ice during the winter. They located the water’s edge of Jack Lake at the normal controlled low water level. Mr. Beninger then used this survey data to illustrate the heavy line representing the high water mark on Plan 33. This was a mistake. Despite this error in surveying and illustrating the location of the high water mark on Plan 33, Mr. O’Connor’s opinion that the high water mark is the water boundary for the lots on the plan does not change. The illustration of the line shown on the plan is only representative of the high water mark.

[35] Mr. O’Connor’s opinion is that the level of Jack Lake has been artificially controlled since the lumberman’s dam was built sometime before 1901. He reviewed and compared the 1901 Cameron Survey and the 1958 Plan 33. In his view, both clearly show that water was being held back. Both show an island and a bay that would not have existed if water had not been held at similar levels. This is consistent with Mr. Beninger’s attempt to retrace the Cameron Survey in creating Plan 33. While the water level in both surveys is similar, Mr. O’Connor stated that it is impossible to determine with any precision the level of Jack Lake in 1902 when the land was patented.

[36] Mr. O’Connor also expressed his opinion that the end of the disputed lot line is subject to movement due to erosion. Comparing the available plans over the years and accounting for the error by Mr. Beninger in locating the high water mark on Plan 33, Mr. O’Conner believes that the length of the disputed line has been reduced because of slow and imperceptible loss of soil from erosion.

b) Paul Miller, the respondent’s expert

[37] Mr. Miller’s opinion is that Plan 33 created lots that fronted on the original uncontrolled water’s edge of Jack Lake.

[38] Mr. Miller agrees with Mr. O’Connor that Plan 33 is clear that the limit of the lots is the “High Water Mark”. Mr. Miller explained that while a surveyor may be able to easily find several physical markings that could be associated with high water, on Jack Lake, because it is controlled, the high water mark would be at approximately 106.3 feet (a.d.). However, Mr. Miller explained, when Mr. Beninger used the term “High Water Mark” in Plan 33 he was simply following the convention of the day wherein the term was used by surveyors to describe a water limit.

[39] Considering the restrictive covenant contained in the JLL Company transfer of the lots, that “one boathouse may be built with combined slips”, Mr. Miller concluded that the JLL Company intended to create waterfront lots.

[40] Plan 33 is an attempted retracement of the Cameron Survey. A “retracement”, Mr. Miller explained, is when a surveyor locates a boundary where it originally existed, as distinguished from creating a new boundary. Given the intention of the JLL Company to create waterfront lots, it makes sense that Mr. Beninger would retrace the Cameron Survey. However, Plan 33 shows “Drowned Lands” outside lot 41 and two reference plans, 45R-6411 and 45R-9147, and contain statements that a portion of Lot 27 Concession 9 may lie in front of Parts 1 and 3. Yet, there is no instrument number associated with the drowned lands or the remainder portion referred to in the reference plans.

[41] Thus, Mr. Miller concludes that either:

a) the JLL Company still owns residual lands between the original, pre-dammed water’s edge and the high water mark depicted on Plan 33; or

b) the lots on Plan 33 extend to the original water’s edge.

[42] Since the intention of the JLL Company was to create waterfront lots, it makes no sense that it retained a strip of land between the lake and the lots. That would create non-riparian lots. In Mr. Miller’s opinion, the only logical interpretation of the “High Water Mark” illustrated on Plan 33 is that it represents the original water’s edge of Jack Lake.

[43] Mr. Miller then endeavoured to locate the original water’s edge of Jack Lake by determining its original elevation. He reviewed records from the Ministry of Natural Resources and Forestry. He considered a 1976 letter that listed Jack Lake elevations, including an elevation for the “original high water mark". Mr. Miller notes that the elevations were haphazard and used an unknown temporary benchmark. Although Mr. Miller was able to relate the elevations in the letter to the CGVD28 datum, this figure is of little value because, as Mr. Miller notes, there is no evidence of the methodology used to obtain the elevation of the “original high water mark”.

[44] Mr. Miller also reviewed plans he received from the Ministry that showed a rock ridge upstream from the Dominion Dam. He visited Jack Lake on October 21, 2015. He noted the elevation of the lake at its winter level. He observed that no water was flowing through the east dam, and he measured the cross-sectional area of the water that was flowing through the west dam. Using soundings, he recorded the profile of the rock ridge and a profile of the lake bottom along the lot line into the lake. Based on these measurements, Mr. Miller applied the cross-sectional area of water flowing through the west dam to arrive at his estimate of the original water level of Jack Lake, 909.1 feet (CGVD28 datum). He used this elevation and the profile he had prepared of the lake bottom along the lot line to determine where the lot line would have intersected the water’s edge at its original level.

[45] Mr. Miller did not explain how he used the cross-sectional area of water flowing through the dam to arrive at his opinion of the original water level. In Mr. O’Connor’s opinion, there was no logical, mathematical or other scientific means for determining the original water level of Jack Lake. Absent any explanation from Mr. Miller, it is impossible to assess the validity of his opinion or to determine if it falls with his area of expertise, which is surveying. Accordingly, I must reject Mr. Miller’s opinion as to the original water level of Jack Lake.

[46] When Mr. Miller first formed his opinion he did not consider the lumberman’s dam. He had assumed that Jack Lake was uncontrolled before the construction of the Dominion Dam in 1910. On cross-examination, he acknowledged that he formed his initial opinion on incomplete information. He acknowledged that overlooking Instrument 750 failed to meet the professional standards for surveyors.

[47] Having been made aware of Instrument 750 and that a dam existed before the Dominion Dam at the time of the Crown patent, Mr. Miller’s opinion did not change. He considered the effect of the lumberman’s dam on the water level of Jack Lake at the time of the Cameron survey. He investigated the history of lumberman’s dams, logging and Jack Lake. He considered a research report emailed to him from Parks Canada citing a variety of sources. He considered information provided to him by an author of a book on logging the Algonquin pine. That author also cited a variety of sources for his information. Relying on this information, Mr. Miller concluded that the lumberman’s dam was not holding back any water at the time of the Cameron Survey and that the lake was at its normal natural level.

[48] Although cited in his report, none of the information Mr. Miller relied upon to form his opinion that the lumberman’s dam was not holding back water at the time of the Cameron Survey was proven. It is hearsay information that included the opinions of others. I reject Mr. Miller’s opinion that the lumberman’s dam was not holding back water for the following reasons. First, it is based upon unproven assumptions. Second, his opinion as to the water level based on historical information falls outside his area of expertise as a surveyor. Third, even if the information he relied upon was evidence before the court, an expert opinion would not be required by the court to assess that evidence in determining whether the lumberman’s dam was operational.

[49] Given Mr. Miller’s initial failure to discover and consider Instrument 750 and my rejection of his opinions above, where Mr. Miller’s evidence is otherwise inconsistent with Mr. O’Connor’s evidence, I prefer Mr. O’Connor’s. I accept Mr. O’Connor’s evidence over that of Mr. Miller that the NCHWL of Jack Lake has not changed since Plan 33 was surveyed.

C. Positions of the Parties

[50] The applicants are seeking a declaration that the terminus of the lot line is at the intersection with the NCHWL, contour elevation 106.33 feet (a.d.). They maintain that there is no ambiguity in Plan 33. It was open to the JLL Company and Mr. Beninger to set a new limit for the water boundary at the high water level and that is what they did. They submit that the high water level is a recognized natural boundary and that it takes priority over any measurements on the plan. The evidence of Mr. O’Connor that the high water level in a controlled lake is the NCHWL is uncontradicted. On Jack Lake the NCHWL is, and was at the time of Plan 33, 106.33 feet (a.d.).

[51] The respondent also submits that Plan 33 is unambiguous. The use of the high water mark to describe the water limit of the lots on Plan 33 was following the convention of the day. It was intended to retrace the same water limit shown in the Cameron survey, the water’s edge at the time. Alternatively, the respondent argues that if it is not accepted that this interpretation of the high water mark is unambiguous, then the court should look to the intention of the JLL Company to resolve any ambiguity. There is nothing in Plan 33 or in the Crown grant to suggest any reservation of a space between the lands granted and Jack Lake. Without an explicit reservation, waterfront property extends to the water’s edge notwithstanding that the plan of subdivision uses the high water mark. The water’s edge must be that which was in the Crown patent, which was the water’s edge at the natural uncontrolled water level.

D. Analysis

[52] While I have rejected Mr. Miller’s opinion regarding the original water level of Jack Lake, his opinion that the lumberman’s dam was not holding back any water at the time of the Cameron Survey, and that the lake was at its normal natural level, I must still conclude what water level is to be used to determine termination point.

[53] In Gibbs v. Grand Bend (Village) (1995), 1996 CanLII 2835 (ON CA), 26 O.R. (3d) 644 (Ont. C.A.), at paras. 37-38, Finlayson J.A. reviewed the principals of law that relate to the appropriate use of extrinsic evidence in interpreting a grant of land:

In Oosterhoff and Rayner, supra, there is a discussion of when extrinsic evidence may be used in interpreting boundaries in a deed. The authors state at pp. 983-84:

It is a well-established principle that if the terms of a conveyance or transfer of land or an interest therein are clearly defined, extrinsic evidence is not admissible to contradict the conveyance or transfer. If the terms of the conveyance or transfer do not clearly define the land, as where there is ambiguity in the description or location of a boundary, extrinsic evidence of surrounding circumstances may be admitted to put before the court the knowledge of the parties at the time a deed was executed, and to determine what the parties had negotiated and the true meaning of the parties on a fair consideration of the language used.

A description in a deed may contain either a patent or a latent ambiguity. A patent ambiguity is one that is apparent on the face of the deed. A latent ambiguity is one that arises only when the deed is applied to the land it purports to describe. Thus while a patent ambiguity is found in the deed itself, a latent ambiguity is revealed through extrinsic evidence. Parol evidence is inadmissible to explain a patent ambiguity. Extrinsic evidence may be introduced only in the case of a latent ambiguity for the purpose of ascertaining the intention of the grantor: see Clark v. Bonnycastle (1834), 3 U.C.Q.B. (O.S.) 528 at p. 548; Canadian Encyclopedic Digest (Ont.), 3rd. ed., vol. 8A, p. 44-40.

[54] The use of the term “high water mark” by surveyors in Ontario to define a natural boundary has a long and confusing history. Although the common law had recognized the boundary between land and non-tidal waters as the water’s edge, throughout the early part of the last century, provincial Crown policy was that the Crown owned the beds of navigable waters to the high water mark, including any dry land between the variable water’s edge to the high water mark. This policy was enacted in statute in 1940 by amendment to the Bed of Navigable Waters Act, S.O. 1911, c. 6.[1], which also provided a statutory definition of “high water mark”.

[55] Although the amendment was repealed in 1951, restoring the common law, the Crown maintained its policy asserting ownership to the high water mark. It was not until 1970 that this policy was rejected and the common law was confirmed by Stark J. in Ontario (Attorney General) v. Walker, 1970 CanLII 953 (ON SC), [1971] 1 O.R. 151 (H.C.J.), affirmed 1972 CanLII 31 (ON CA), [1972] 2 O.R. 558 (Ont. C.A.), affirmed 1974 CanLII 3 (SCC), [1975] 1 S.C.R. 78 (S.C.C.).

[56] Walker involved a dispute over a beach and whether the beachfront landowners owned to the water’s edge, or only to the high water mark. Many of the cases that consider the high water mark involve disputes over such “beaches”, the strips of land between the water’s edge and the high water mark.

[57] The circumstances in Walker were similar to this case. In the Crown patents, the waterside boundary was described as “to Lake Erie, then Easterly along the shore of the Lake”. The Crown relied on a subsequent survey that described the waterside boundary with reference to the high water mark. The Crown claimed that the beach formed part of the bed of Lake Erie and were ungranted lands, and thus, the property of the Crown.

[58] Stark J. rejected the Crown’s argument. In a thorough review of decisions going back to Parker v. Elliott (1852), 1 U.C.C.P. 470, Stark J. affirmed, at para. 44, that for land having a boundary on inland non-tidal waters in Ontario “the distinction of high and low water marks will not hold”. The boundary is the water’s edge. Stark J. concluded, at para. 51:

It appears to me, therefore, that I am driven to this conclusion, that any Crown patent which indicates that one of the boundaries of the lands granted is to be a boundary of water, then it establishes that boundary as at the water's edge and not upon any bank or high water mark unless, of course, the grant clearly reserves by description or otherwise a space between the lands granted and the water boundary or unless the boundaries of the lot can be so clearly delineated by reference to an original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water’s edge.

[59] Walker has been followed in three recent Ontario decisions. Each case involved waterfront lots on a plan of subdivision and a dispute over a strip of land between the high water mark and the water’s edge.

[60] In Ellard v. Tiny (Township), 2012 ONSC 280, 295 O.A.C. 44 (Ont. Div. Ct.), the subject property was part of a Crown patent of riparian lots to the water’s edge of Lake Huron. Lots were created by a plan of subdivision on which the waterside boundary was shown as a straight line labeled “High Water Mark”. Both experts in Ellard agreed that this line, although labeled “High Water Mark”, was not intended to represent the natural feature. On the plan, the strip of land between the “High Water Mark” and the water’s edge is labelled “SAND BEACH”. The Deputy Director of Titles determined that the lot owners’ boundary extended to the water’s edge and included the beach area. On appeal to the Divisional Court, Lauwers J., as he then was, writing on behalf of the Court, concluded that the boundaries of the lots were clearly delineated on the original plan of subdivision so as to except certain land. Applying Walker, and given that the boundary was clearly delineated, he concluded that the “Sand Beach” area was excepted.

[61] Similarly, in Tiny (Township) v. Battaglia, 2013 ONCA 274, 305 O.A.C. 372, the Court of Appeal considered the ownership of a strip of land marked “BEACH” shown on a plan of subdivision between a boundary labelled “High water line” and a line shown as the “Water’s Edge”. The issue was whether the waterside boundary of a strip of land 20-feet-wide labelled Block B on the plan was the “High water line” or the “Water’s Edge”. The court considered Walker and adopted the interpretation in David W. Lambden and Izaak de Rijcke, Legal Aspects of Surveying Water Boundaries (Scarborough: Thomson Canada Limited, 1996), at p. 78, that Walker is not limited to Crown grants and surveys, but applies to any conveyance:

It follows that where, in subsequent divisions of land by written metes and bounds descriptions or by plans of subdivision, the owner has conveyed upland using the term ‘high water mark’ not used in the Crown grant, reciting this in the description or as it is shown by a surveyor on a plan, the Crown has no claim to title between such line (whatever it is thought or found to mean) and the water’s variable edge. If any space exists, the title would be in the grantee from the Crown or successor in title; or in the owners of the subdivision lots. Whether one or another is a matter of evidence and not to be lightly determined when the consequences of a poorly researched decision are considered for potential liability.

[62] Limiting its decision to the facts of the case, the Court of Appeal concluded that the “High water line” was not the same as the “Water’s Edge”. They were two distinct boundaries. The boundary labelled as “High water line” created Block B as a distinct 20-foot-wide non-riparian parcel, separated from the water’s edge by the beach.

[63] In Lackner v. Hall, 2012 ONSC 3951, 1 M.P.L.R. (5th) 283, affirmed 2013 ONCA 631, 15 M.P.L.R. (5th) 16, the issue once again was the determination of the ownership of a “beach area”, a strip of land between the waterfront boundary of lots on a plan of subdivision and the water’s edge of the Ottawa River. McNamara J. found there was a latent ambiguity. It was unclear whether the line that formed the waterside boundary of the lots was intended by the original subdividers to create a row of lots that extended to the Ottawa River or only to the beach area to which title was retained. He concluded that the intention of the original subdividers was to subdivide all of the land they owned but had mistakenly believed that the strip in dispute was public land. The lots extended to the water’s edge.

[64] In this case, Plan 33 identifies the waterside boundary of the lots using only a single heavy line identified as the “High Water Mark”. There is no beach on the plan. There is no strip of land between the high water mark and the water’s edge. The respondent argues that in such circumstances Walker is clear: since no such space exists on Plan 33 or in the Crown patent and there was no clear reservation of any such space by description or otherwise, the waterside boundary of the lots is the water’s edge at the time of the patent.

[65] The respondent’s position, however, fails to adequately take into account the fact that Jack Lake is a controlled lake.

[66] The water level of Jack Lake has been controlled since 1910 by the Dominion Dam. Prior to which, the level was controlled by the lumberman’s dam. The existence of the lumberman’s dam is admitted. There is no evidence before me to suggest it was not operational and capable of holding back water. I rejected the evidence of Mr. Miller in this regard. Mr. O’Connor’s opinion supports my finding. To be clear, I find that from some unknown date before the Cameron survey in 1901 until the construction of the Dominion Dam in 1910, the water in Jack Lake was controlled by a dam.

[67] In making this finding I have carefully considered the release registered as Instrument 750. The parties have admitted that the wording of the release has been accurately reproduced and that the preamble of the release accurately states its purpose. Beyond what may have been expressly admitted, the court is entitled to consider the wording of the release to draw its own conclusions.

[68] Considering the release together with the other evidence, I conclude and find as follows:

a. Before the construction of the Dominion Dam in 1910, the lumberman’s dam held the water of Jack Lake at a certain level during the Spring and then drained it to its natural level.

b. The release did not consider or address lands damaged by flooding caused by the lumberman’s dam.

c. The release states that its purpose is to address damage due to “flooding by reason of the raising of the water level of the said lake by the new dam” [emphasis added], which I understand to mean the additional flooding caused by the Dominion Dam, above that of the lumberman’s dam.

d. The release does not state the elevation of the crest of either dam.

e. The Dominion Dam is capable of holding Jack Lake to a level up to 8 feet 6 inches above the eastern sluice or 108.5 feet (a.d.). This is the maximum level permitted by the release but does not determine the crest of the Dominion Dam. The crest of the Dominion Dam is at least 108.5 feet (a.d.).

f. The crest of the lumberman’s dam was lower than 108.5 or there would have been no additional flooding from the Dominion Dam.

g. The crest of the Dominion Dam is 2 feet 10 inches higher than the lumberman’s dam. Since the Dominion Dam is capable of holding Jack Lake to a level of 108.5 feet (a.d.), the crest of the lumberman’s dam was at least 5 feet 8 inches above the eastern sluice or 105.66 feet (a.d.) which is 108.5 less 2 feet 10 inches or 2.83 feet.

h. The crest of the lumberman’s dam was greater than or equal to 105.66 and less than 108.5 feet (a.d.).

i. The water’s edge in the Cameron survey could be at any level between 100.00 and 108.5 feet (a.d.).

[69] Consistent with these findings is the possibility that the lumberman’s dam could have held Jack Lake in the springtime to the same level as the NCHWL of the new Dominion Dam, 106.33 (a.d.).

[70] Turning now to the determination of the disputed terminus. Plan 33 illustrates the water boundary with a line labeled “High Water Mark”. It clearly states “Water level is controlled by a dam at the outlet of Jack Lake”. Walker was not considering controlled bodies of water but inland non-tidal waters where “the distinction of high and low water marks will not hold”. On a controlled body of water, the distinction does hold. There are regulated high and low water levels: maximum, minimum, normal high and normal low levels.

[71] On controlled bodies of water, in my view, “High Water Mark” presumptively refers to the line where the land meets the water at the normal controlled high water level, absent clear evidence that at a water level lower than the NCHWL was intended to be conveyed. Such an interpretation recognizes that land bounded by water at the NCHWL is riparian, yet would not be subject to regular flooding. This approach also, in my view, respects reasoning in Walker, adapted for controlled bodies of water.

[72] Plan 33 is not ambiguous. The line between Lots 41 and 42 terminates where it intersects the “High Water Mark” which is the water’s edge of Jack Lake at the NCHWL, 106.33 feet (a.d.). It was open to the JLL Company to choose this boundary. That is what Mr. Beninger used in Plan 33. Although Mr. Beninger was unable to retrace the Cameron survey, by adopting the “High Water Mark” it is possible that he used the same water boundary as Mr. Cameron. The NCHWL of Jack Lake controlled by the Dominion Dam in 1957-58 may very well have been the same as the NCHWL of the lake controlled by the lumberman’s dam in 1901. It is impossible to know.

[73] That Mr. Beninger erroneously illustrated the location of the “High Water Mark” line on the plan does not compromise his unambiguous adoption of a natural boundary. The line on the plan is only representative of this clear natural boundary.

[74] Had I been persuaded that Plan 33 presents a latent ambiguity, for whatever reason, my conclusion would not change. Nothing in the extrinsic evidence available to me is inconsistent with my conclusion. The JLL Company intended to create waterfront lots. They provided for the construction of boathouses with boat slips. There was no admissible evidence permitting the court to determine that they conveyed all or retained some of their land.

[75] Finally, had I been persuaded that the disputed line terminates somewhere beyond its intersection with Jack Lake at the NCHWL, I would have nevertheless found that the applicants have a riparian right of access along the line beyond the intersection point with the NCHWL.

E. Decision

[76] Judgement shall go in favour of the applicants. They are entitled to a declaration that the line between Lots 41 and 42, Registered Plan 33, in the Township of Methuen being the line between the most westerly parcel of Lot 41, described in P.I.N. 28260-0315LT and the most easterly parcel of Lot 42, described in P.I.N. 28260-0314LT terminates at the intersection of that line with the water level of Jack Lake at a contour elevation of 106.33 (assumed datum).

[77] If counsel are unable to agree on costs, written submissions no more than five pages in length may be made by the applicants within 14 days and the respondent within 21 days.

Corkery J.

Corrected Decision Released: April 17, 2019