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Thursday, June 30, 2016

Court of Appeal reverses Bear Creek natural severance ruling

The Court of Appeal for Ontario has overturned a recent Superior Court decision that found a property to have been severed naturally by a creek.  The owners of the property wished to deal with the property on the basis that it was severed into two parts by the creek running through it.  The local municipality challenged that view, but the Superior Court ruled that there was a natural severance resulting in two separate parcels of land.

On appeal, the Court of Appeal found that the evidence put before the lower court "was not capable of establishing that the Creek as it passed over the respondents' property was a navigable stream ... Title to the bed of the Creek does not lie with the Crown.  There is no natural severance of the respondents' property."  In the original application, the main issue was whether the creek had been navigable at the time of the original grant of lands in the area.  If it had been, then ownership of the creek bed was reserved to the Crown and the properties bisected by the creek would be divided into two severed parts.

Read the decision at: Middlesex Centre (Municipality) v. MacMillan.