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Tuesday, February 26, 2013

Natural severance granted to two landowners by Superior Court

Owners of two different properties in the Hamilton, ON area brought applications to "clarify or determine title" to the bed of a waterway that traverses each of the properties.  If the waterway was determined to be navigable, then the bed of the waterway would remain the property of the Crown and would effect a severance of the properties involved.  Section 1 of the Beds of Navigable Waters Act provides: 
"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."
The Crown Patent for both properties was issued on January 11, 1816 to a single owner.  The original Patent did not contain any express grant of the bed of the watercourse.  Therefore, if the watercourse was found to be navigable as of the date of the grant, then title to the bed of it would remain vested in the Crown.

On the basis of evidence presented by the parties, the Court concluded that it was probable that the waterway was navigable for significant periods of the year in 1816.  Title of the bed of the waterway remains in the Crown (resulting in the natural severance of the Applicants' properties).

Read the decision at: O’Donnell v. Ontario (Attorney General) and Obratoski v. Ontario (Attorney General).