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.

Natural Severance Case Being Appealed

In May, 2015, I wrote about a decision from the Superior Court of Justice in which a property was found to be severed naturally by a navigable watercourse - the Bear Creek (see Court Rules that Bear Creek was navigable in 1831).  The case is now under appeal by the Municipality and a hearing has been scheduled for February 4, 2016 in Courtroom 2 at the Court of Appeal (Osgoode Hall) in Toronto.

Court rules that Bear Creek was navigable in 1831 - natural severance of property results

I first posted about this case in December, 2012; it has now gone to a hearing and a decision has been rendered.  Justice Mitchell has declared that the portion of Bear Creek that passes through the property owned by the respondents in the application "was navigable in 1831 and, therefore, title to its bed was retained by the Crown creating a natural severance of the property."  That was the position that had been taken by the respondent landowners when they hired a surveyor to prepare a reference plan showing Bear Creek as a navigable watercourse comprising unpatented Crown land.  Based upon that reference plan, they purported to convey the land on one side of the creek from joint ownership to ownership by one of the landowners alone.

The court application was commenced by the local municipality, which took objection to the reference plan prepared by the surveyor.  The municipality asked the Court to declare that the watercourse (which is now part of a municipal drain under the Drainage Act) does not create a natural severance of the property.  Her Majesty the Queen in Right of Ontario was also added as a respondent to the application and supported the municipality's position.

In making her decision, Justice Mitchell started from the finding ("not seriously challenged by the Municipality in its argument on the application") that the present watercourse on the property "is the same watercourse located on the property in 1831" at the time of the Crown grant.  Therefore, in determining whether the watercourse was navigable in 1831, Justice Mitchell could rely on the present navigability of the watercourse.

She concluded: "The depth of the watercourse is presently and, based on the evidence of Mr. Burwell, also was at the time of the original grant, sufficient to float a small craft or a log.  There is no suggestion that the water does not flow freely along the watercourse or that its flow is obstructed in any meaningful way.  There may be seasonal fluctuations in the depth and flow of the watercourse but the parties agree this evidence is not determinative of the issue: See the seventh and eighth criterion in Coleman.  The watercourse was, therefore, "navigable" in fact at the time of the original Crown grant."

However, in order to create the natural severance, the watercourse must also have been "capable of public use" or "public utility" in 1831.  Justice Mitchell said of this requirement: "Trite to say that actual use, both historical and present day, is the best evidence of a watercourse's capability of public use.  That said, other "lesser" evidence will suffice to meet the evidentiary burden."  On a review of  the totality of the evidence, she found that "it is more probable than not that the watercourse was not only "capable of public use" in 1831 but was actually used by the public. ... It was capable of constituting an aqueous highway for public commercial and/or recreational use at the time of the original Crown grant regardless of whether or not it was considered by the public useful for such purposes."

As a result, the bed of Bear Creek as it passes through the respondent landowners' property was never actually granted by the Crown to private landowners in 1831.  It was the bed of a navigable watercourse that was reserved to the Crown and now serves as a physical separation between the respondents' property (properties) that lies on either side of the watercourse.

Read the decision at: Municipality of Middlesex Centre v MacMillan et al.

When can a stream create a natural severance of a property?

A case is before the Ontario Superior Court in London to determine whether a local watercourse effectively severs a property into two parts.  An application has been commenced by the Municipality of Middlesex Centre for a declaration that a stream (the Bear Creek Drain) is not a navigable waterway such that a particular property through which it flows would be severed in two.  The predecessors in title of the affected landowners had previously applied to sever their property, but the application was denied.  The current landowners then obtained an opinion that the stream created a "natural severance"; a surveyor agreed and registered a reference plan showing the lands north and south of the stream as two separate parts and denoting the stream itself as "Unpatented Crown Land".

This was done without the knowledge of the municipality; the circumstances were discovered when the landowners made an application for a building permit that would have constituted a second dwelling on the same 10-acre parcel; this would not have been permitted without a rezoning unless there was a "natural severance".

Justice Heeney has ruled that it will not be necessary for the municipality to serve its application on other landowners along the Bear Creek Drain as the issue to be determined at trial will relate solely to the specific property in question: "was the stream a naviagble waterway at the time of the original Crown grant to the current owners' predecessors in title in 1831?  If the answer is yes, then the stream bed is deemed to have been excluded from the original grant, and title to it remains vested in the Crown, irrespective of the current status of the waterway.  If the answer is no, the stream bed was included in the deed to the parcel over which it flowed, and title to it vested in the private landowner who obtained the deed from the Crown, and in his successors in title, up to and including" the current landowners.

As the onus of proof will be on the landowners, Justice Heeney also ruled that they will present their case first at trial, to be followed by the municipality and then the Province of Ontario.

Read the decision at: Middlesex Centre v. MacMillan et al.