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

6.5 Articles and Other Research Papers
6.5.1 Apportionment of Accretions: A Study of Three Canadian Cases (Tab 46)
(by Ronald Stewart O.L.S., published in Geomatica, 2012)
As the title suggests, O.L.S. Stewart discusses various approved methods of distributing
accretion amongst adjoining riparian owners, depending upon the specific circumstances. On
page 5, he writes “In the reasons, the court based its decision partially on the principle that a
riparian owner continues to have a right of access to the water in the event of slow and
imperceptible accretion. A question arises, which is not dealt with in the Andriet decision: is the
right of access absolute? In other words, does the right of access necessarily mean that a
riparian owner will always own lands bounded by the water? Or are there circumstances where
the right to access can be lost?
Certainly in Alberta the right is limited by the restrictions imposed by Pitt v. Red Deer (City) and
Johnson v. Alberta, both of which were discussed in the Andriet reasons. Essentially, those
decisions direct that the right to ownership of accretions is bounded by Alberta Township System
lines where certificates of title are limited by statutory boundaries of township, sections, quarter
sections and legal subdivisions, as set out in Sections 18 to 28 of the Alberta Surveys Act, R.S.A.
2000, c.S-26. This is an anomaly to the common law doctrine of accretion, arising at least
partially from the statutory imposition of the Dominion Land Survey System grid.”
O.L.S. Stewart indicates that access to water, or riparian rights are not necessarily guaranteed
in perpetuity, based on some restrictions imposed by Red Deer and by Johnson, but also says
that this is a result of statutory anomalies from the Dominion Land Survey System. In fact,
according to Cook v. Queen’s County, a change in physical conditions can result in a loss of
riparian status. Obviously the loss of water access is a serious issue, but in some situations it
cannot be avoided. In the case at hand, Lots 4 through 13 will now have a barrier between these
lots and Nottawasaga Bay to prevent any claim they might have to the extension of their
boundaries toward the lake. Based on the cases reviewed above, and especially based on Ellard,
I don’t believe these owners ever had a valid claim. The lots are bounded on the west by the
straight line boundary established by Reg’d. Plan 779, just as they are bounded on the east by
the boundary with Tiny Beaches Road South (formerly Pine Avenue). If it were ever ruled that
these lots are entitled to the land in front then some sort of proportional distribution would be
necessary. Some sort of arbitrary decision about which lots wold not be eligible for this
proportional distribution would be necessary, because Lots 4 to 9 (and possibly Lots 10,11 and
12) would end up with such narrow angled strips as to be of no real benefit. It should be pointed
out that although the Road Allowance eliminates the possibility of actual ownership extending to
the lake for Lots 4 through 13, if I am correct the beach will be publicly owned. Thus all lot
owners will still be able to enjoy access to the lake.
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