Report of Research, Field Investigation and Survey of Robert D ...

6.3.4 Re: Brew Island (Tab 10)
Meredith J. does a thorough review of the law related to accretion and upholds the right of an
upland riparian owner to the ‘alluvion’ which has built attached to his land (Brew Island). At
Para 10 he says ‘No issue is taken with the general principle of law that the accreted land
becomes the property of the owner to whose land it attaches as it is formed. In A.G. Southern
Nigeria v. John Holt & Co. (Liverpool) Ltd. [1915] A.C. 599, Lortd Shaw of Dunferline gives the
reason [at pp. 613-14]: “Blackstone says (vol. ii, chap. xvi), ‘As to lands gained from the sea,
either by alluvion, by the washing up of sand and earth, so as in time to make terra firma, or by
dereliction, as when the sea shrinks back below the usual water mark; in these cases the law is
held to be, that if this gain be by little and little, by small imperceptible degrees, it shall go to the
owner of the land adjoining’. ... The true reason for the principle of law in regard to foreshores
is the same reason as the principle in regard to river banks, ie, that it is founded upon security
and general convenience.”
At Para 11 Meredith J. seems to be speculating and says ‘I gather that the right to be secured
and protected is not so much the right to the accreted land itself, but rather the right to retain
access to the river or sea since such is regarded as more valuable than the mere land. Thus the
division of land accreted to contiguous properties will generally not have reference to land mass
attaching to a particular parcel but rather to the river “lost “ or “gained” as a result of the
formation.
At Para 12, citing Deerfield v. Arms [1835], 34 Mass. (17 Pick.) 41, 28 Am. Dec. 276 (Supreme
Court of Massachusetts), Shaw J. said: “A rule which appears to us to be applicable to the
present case and meets the required conditions, is found in a work of the civil law, cited by the
learned counsel who opened the case for the defendants, entitled ‘A Collection of New Decisions,
by Denisart’, published in France in 1873. ... The rule suggested in this work is founded on the
obvious consideration already alluded to, that in many cases lands which border upon navigable
rivers derive a great part of their actual value from that circumstance, and from the benefit of
the public easement thereby annexed to such lands, and that, being wholly deprived of that
situation would operate as a great hardship and do real injustice to a riparian proprietor,
although he should obtain his full proportion of the land measured by the surface. This injustice
will be avoided by the proposed rule, in conformity with which each proprietor will take a larger
or smaller proportion of the alluvial formation, and of the newly formed river or shore line,
according to the extent of his original line on the shore of the river.”
In Para. 13, Meredith J cites McTaggart v. McDougall [1867], 5M. 534, which is citing
Campbell v. Brown, and there deals with the proposition of using a perpendicular to the general
shore direction through the upland corner, thereby creating a bend in the boundary.
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