THE FOLLOWING OPINION ON RIPARIAN BOUNDARIES IN NEW BRUNSWICK WAS INITIALLY PRESENTED TO THE ANNUAL MEETING OF THE PROVINCIAL LAND SURVEYORS ASSOCIATION IN THE MID-NINTIES.
RIPARIAN BOUNDARIES
INTRODUCTION
The purpose of this paper is to provide some information on the current law on riparian, or water boundaries, in the Province New Brunswick in a “private” or non-tidal river or stream.
Rivers above the head of tide are sometimes referred to as “private rivers”. This designation is derived from the fact that the bed of non-tidal rivers is, by common law, privately owned and so presumed. This is in contrast to the beds of tidal rivers that are generally presumed in law to be owned by the Crown.
BACKGROUND
As background to the question of riparian boundaries I wish to identify some special rights relating to the ownership of river frontage that are not found in nonriparian situations, and which certainly bear on riparian boundaries. The most significant rights at issue in riparian situations are:
1. Riparian Rights
There are 6 classical riparian rights. These are (i) the right of access to the river; (ii) the right to acquire title to accretions to your land – and the converse – loss of title to eroded land; (iii) the right to receive the water flowing in the river in a “quality state”; (iv) the right to receive a minimum flow of water; (v) the right to use a share of the water (subject to the rights of others downstream); and (vi) the right to drain water into the river.Riparian rights are derived from owning the bank of the river. “Ripa” is the Latin word for “bank”.
Riparian rights attach to the bank (land) in both tidal and non-tidal water; and in tide water are often referred to as “littoral” rights.
Riparian rights and ownership of the bank can, by deed or prescription, be separated from ownership of the bed (which incidentally can in turn be separated from the fishing rights).
As noted above in non-tidal rivers riparian owners are presumed to own the bed and consequently the fishing rights.
2. Fishing Rights
Fishing rights are not riparian rights. The notion that fishing rights are riparian rights is a common misconception which has even found its’ way into the New Brunswick Fish and Wildlife Act which refers to “riparian angling rights”. This reference to “riparian” is both misleading and redundant.
A private fishing right is a property right in the nature of a profit (similar to the right to cut trees or take gravel or crops off of ones land) which derives from owning the solum, or bed, of the river. Profits are a collection of rights which are self-evident, and which can be owned separately from the land and can be conveyed by deed, or acquired by prescription (Easements Act ch. E-1, S.N.B.). When the right to a profit is separated from the land it is referred to as a profit a prendre.
The owner of the fishery is presumed to be the owner of the bed.
Fishing rights may or may not be expressly included in original grants on the Miramichi River and other rivers in New Brunswick.
In most cases it does not matter whether there exists an expressed reference in the original Crown grant or subsequent private grants of riparian lands to fishing rights given that the Supreme Court of Canada has held that the fishing rights are included in the grant unless specifically excepted (Queen v. Robinson 1882 S.C.R. Vol VI). This principal also applies to private conveyances and it is a rule of construction that fishing rights are included in a deed unless specifically excepted.
There are, however, some interesting and scary theoretical boundary questions posed in relation to expressed or specific Crown grants of fisheries. In Scotland expressed grants of fisheries “ex adverso” were recently determined by the House of Lords to be exercisable (in certain circumstances) over the center thread boundary unto the river bed of the opposite riparian owner.
As a practical matter such conclusions are out of sync with our law as well as all other common law of which I am aware.
Here, suffice it to say that the boundary of non-tidal river fisheries in New Brunswick is clearly the center thread of the bed of the river (Queen v. Robinson, infra; Fudge v. Boyde (1965) 50 M.P.R. 384 (N.B.C.A.).
The exercise of fishing rights in non-tidal rivers in New Brunswick is limited to the normal boundary of ones’ property. In most cases this is the center thread of the bed. In theory if one casts one inch over the center thread he is trespassing on his opposite riparian neighbor!
3. Right to Float/Right of Navigation
Again, it has been determined by the Supreme Court of Canada that rivers in New Brunswick are not navigable in law above the head-of-tide (Water Law in Canada/The Atlantic Provinces, G. V. LaForest & Associates, 1973, p. 178). Having so determined, it was necessary in the past to confirm the public’s right to use rivers as highways. Rivers were too vital to settlement and commerce for there not to be a public right to use them, even above the head-of-tide. Thus was created the right to float streams. This right in some cases was defined only in respect to floating logs but more accurately is extended to provide the public with a right-of-way over our rivers if the river has enough water to, in fact, “float” watercraft or boats. This right should not be assumed to be the same as a right of navigation as that right exists only below the head-of-tide in New Brunswick.
Care is required in applying this law given the federal jurisdiction over navigation which must also be factor into any discussion on navigability in New Brunswick Of course ownership of the bed of the river would carry the other incidents and rights normally attached to ownership of land. These “foundation rights” form the base upon which the more commonly and visibly exercised rights referred to above are exercised.
BOUNDARIES
Obviously some of the rights referred to above are irrelevant to the boundaries between riparian owners. The right to float and rights of navigation really relate to water flows and are exercised irrespective of boundaries to the title to the bed lies. The most complicated ownership situation in respect to the bed would not affect the right to float or the right of navigation. However fishing rights and riparian rights are all exercised within the normal property boundaries. Riparian owners must accommodate rights of navigation including some limited use and temporary access to private riparian land .
For all intents and purposes the process of establishing a riparian boundary involves the same objectives and methods as establishing any property boundary. Scientific principles and standards of professional responsibility dictate certain procedures and investigation prior to, or in conjunction with, the actual physical measurements of the land survey. Nonetheless the water boundary location can still be a complex task.
Certainly this is the work of surveyors probably with support from the legal and or engineering field idf and when complexities arise.
THE NATURE OF WATER BOUNDARIES
In survey law the principle and term “ambulatory monument” is about as paradoxical as “dry water” and yet that appears to be the essential nature of a water boundary.
In evidentiary weight, a river (a natural boundary) is as staunch as a very huge rock, except that if the river is a gravel bed river of the proportions of the Miramichi it is as if the rock is both round and rolling.
Having stated some basic principles underlying and locating riparian boundaries, it is nonetheless clear that the process can be fraught with uncertainty and presumably vigilance and care must be exercised in establishing water boundaries.
Some basic preliminary issues that must be determined are:
1. Does the boundary and title of a riparian property extend to the center thread?
It is possible, even if the river is non-tidal, that as a result of (i) the phrasing of the original grant; (ii) the operation of the Crown Lands Act and earlier statutes reserving the bed and parts of the shore; (iii) reservations viz deeds in the chain of title; and (iv) adverse possession; one may still front on a non-tidal river and not be the owner of the bed. It certainly appears that the courts are inclined to try and interpret phrases and words to include the bed, but careful consideration must be given to the question by lawyers and surveyors investigating title and riparian boundaries .
2. Are there changes in the bed in the nature of accretions, erosions or avulsions which affect the boundary?
In some cases dramatic geographic changes can occur – with little change in the boundary, or, on the other hand, there can be subtle changes to the river with dramatic changes in the boundary. Old channels, aerial photos and anecdotal accounts are vital in assessing this issue.
Having “arrived at the river”, so to speak, the vital question of what constitutes the bed must be answered. While in some situations the answer to this question may be relatively easy (symmetrical rivers with even beds and banks) however in many cases it is very difficult.
It is accurate but trite to say that establishing boundaries between opposite riparian owners in non-tidal rivers in New Brunswick is usually , simply a process of finding the center thread of the bed.
The problem arises because of the silence by the legislature and the courts on many salient aspects of the methodology.
Before looking at problem areas (at the risk of being repetitious) let’s start with what seems to be settled. The following aspects of the problem are defined:
1. In New Brunswick the bed of tidal rivers is presumed to be owned by the Crown [although private grants of water lot do exist in many places] and both in tidal and non-tidal rivers in NB the bed is measured from the ordinary high water mark to the ordinary high water mark in tidal rivers; although again uncertainty exists in respect to the inclusion of the “foreshore” [ area between ordinary high tide/water and ordinary low tide/water] in defining the bed . Fishing in tidal water is public. In New Brunswick the right of navigation ends at the head-of-tide. Riparian [littoral rights] rights apply in tidal water.
2. In non-tidal water the bed is presumed to be owned by the riparian owner unless expressly stated otherwise. The precise boundary between opposite riparian owners is the center thread of the bed unless specified otherwise. “The bed is the bed is the bed”. This is a question of fact determined by looking at (i) vegetation (ii) soil (iii) banks (iv) flows and (v) water lines and other physical features and the use to which the area has been put; and other relevant facts applicable to the property in question.
3. The water boundary between adjacent [as opposed to opposite] riparian owners is determined by dropping a right angle from the center thread to a point where the upland boundary meets the shore.
4. The fishing follows the boundaries of the submerged land [bed] . As stated, some survey law issues remain unanswered in surveying riverine water boundaries in New Brunswick
BOUNDARY BETWEEN OPPOSITE RIPARIAN OWNERS
It is appropriate to look closer at the prevailing law on establishing the center thread boundary between non-tidal opposite riparian owners..
The basic rule can be derived from a City of Edmonton case: “I think that the question whether any particular piece of land is or is not be held part of the bed of a river at any particular spot, at any particular time, is one of fact, often of considerable difficulty, to be determined, not by any hard and fast rule, but by regarding all the material circumstances of the case, including the fluctuations to which the river has been and is subject, the nature of the land, and its’ growth and its’ user.” Clarke v. City of Edmonton (1930) S.C.R. 137.
This has been accepted by the New Brunswick Court of Appeal in Routh v. Bowes (1983) 47 N.B.R. (2d) 247.
This approach to determining the bed has been further complicated by a second approach which is derived from an interpretation of a passage from Fudge v. Boyde, infra: “From this it seems to follow that the medium filum aquae (the common law boundary between fisheries belonging to riparian owners) is a line running down the middle of the bed of the river, the bed being that portion of the soil of the river which is always covered with the water, and that portion which is alternately covered or left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain the water at its’ average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring or the extreme droughts of the summer or autumn. Where a river gradually and imperceptibly changes its course or its width, the boundary of a fishery in the river will follow such alterations, notwithstanding the existence of bounds or marks by which the former boundary can be ascertained.”
This decision seems to place more emphasis on flows than the City of Edmonton case.
It is submitted, but yet to be confirmed by the Court, that putting the City of Edmonton rule to work can and should lead, in most cases, to a satisfactory location of the bed and thus the center thread. Certainly there are issues which can in some cases bear on this exercise which are unanswered either because they are before the courts or have never been tested.
Questions which were left with the trial judge in the NB Swazey v. King decision (1997) , 186 N.B.R. (2d) 169(CA) were: (i) which line of vegetation are we to look at as there can be more than one depending on the type of vegetation chosen ? (ii) Which water lines do we use because there are many? (iii) what is an average flow? Does it include freshest and summer low (expecting the extreme)? or (iv) should flow be a factor at all? (v) what is the relevance of the ordinary high-water mark (O H W) in non-tidal waters and (vi) to what extent is geomorphic analysis relevant to the legal determination of the boundary; [vii] how relevant are survey profession practices and the directions of the surveyor general of Canada in guiding a court in its decision making on locating a center thread?
It must be repeated that the task of locating the center thread seems to have a number of legal uncertainties surrounding it which must bear on the surveyors’ and lawyers’ tasks and conclusions. In many situation it seems it is probably prudent for surveyors to provide certain qualifiers or disclaimers in providing opinions on the question on the location of the center thread.
BOUNDARY BETWEEN ADJACENT RIPARIAN OWNERS
Likewise the method of establishing the boundary on the river bed between adjacent owners on one side of a non-tidal river in New Brunswick also lends itself to a simple statement; “drop a right angle from the center thread to the point where the highland boundary strikes the shore.” (Black Brook Salmon Club Inc. v. Seder et al (1981) 34 N.B.R., (2d) 474 (N.B.C.A.)).
However, this process also has some uncertainty attached to it. The Black Brook case seems to refer to a low water level as the point at which the right angle line from the center thread meets the shore. This is not consistent with what some feel is the edge of the bed. Furthermore, the Court, in that case, seems to indicate that there is a possibility that the right angle rule may not apply in all cases.
CONCLUSION
The above assessment may provide some assistance in addressing the questions of riparian boundaries. It is not intended to be an exhaustive treatment and, as much as one would like to have definite answers there is probably a need to approach the task of establishing riparian boundaries with much caution.