AN INTRODUCTION TO OWNERSHIP OF WATERBODIES AND

AN INTRODUCTION TO OWNERSHIP OF WATERBODIES AND MISCELLANEOUS

WATER LAW ISSUES

NOVEMBER 29, 2013

Gregg Cockrill

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YOUNG ANDERSON

AN INTRODUCTION TO OWNERSHIP OF WATERBODIES AND MISCELLANEOUS

WATER LAW ISSUES

INTRODUCTION

This paper deals mainly with the difficult question of private ownership of water bodies, while

touching briefly on common law rights with respect to natural water courses, surface water

and ground water and governmental regulation of the use of water and water bodies.

II. OWNERSHIP OF WATER BODIES

There is a common misconception that the Crown (provincial or federal) owns the bed of all

water bodies in British Columbia. This mistake comes from a variety of sources, I believe,

including a misunderstanding of the effect of a number of legislative provisions, including

section 55 of the Land Act, section 108(2) of the Land Title Act and section 2 of the Water Act.

In fact, the Crown does not own the bed of all water bodies in British Columbia and it is actually

fairly common to find private ownership of water bodies in British Columbia.

In this paper, I speak of ownership of water bodies, but it should be noted that this is simply a

shorthand reference to ownership of the beds of water bodies, not to ownership of the water

itself.

There are three common situations in which the question of private ownership of a water body

arises. The first case is where a water body is located within the boundaries of a parcel to

which title is registered in the Land Title Act. The second situation is where the water body

borders on a parcel that is privately owned. The third case is where the water body was

included within the boundaries of a previously registered parcel, but not within the boundaries

of any parcels shown on a subsequent subdivision plan of the previously registered parcel.

A. Water Bodies Within a Parcel

In the first case, one starts with the registered title. Typically the parcel will be described by

reference to a specific survey plan, usually a subdivision plan. The first step in determining

whether a water body is privately owned is to look at the specific plan that created the privately

owned parcel to see whether the water body is included within the boundaries of the parcel. If

it is, then the only questions are whether the water body has been statutorily excluded from

the owner’s title or whether the water body has been excepted from disposition under the

Crown grant that created that parcel or the parent parcel from which it is derived. Section 23 of

the Land Title Act specifically confirms that a registered title is subject to any “exception” in the

applicable Crown grant.

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This is where confusion sometimes arises. In 1961, the Province enacted section 55 of the Land

Act, which is set out here:

“Bodies of water

55 (1) If Crown land is or has, before March 27, 1961, been disposed of by

the government by Crown grant, and the map or plan attached to the grant

shows a lake, river, stream or other body of water coloured, outlined or

designated in a colour other than red, no part of the bed or shore of the

body of water below its natural boundary passes or is deemed to have

passed to the person acquiring the grant unless

(a) there is express provision in the grant to the contrary; or

(b) the minister endorses a declaration on the plan under section 58.

(2) Nothing in any Act or rule of law to the contrary is to be construed to

vest or to have vested in any person the land that comprises the bed or

shore of the body of water below the natural boundary, and despite an

indefeasible or absolute title to land, the title must be construed

accordingly.

(3) When land, the title to which has been forfeited, reverted or otherwise

returned to the government, is or has been granted by the government and

the grant does not have a map or plan attached but describes the land

granted by reference to its official plan, the description used is deemed not

to include or to have included any land below the natural boundary of the

body of water coloured, outlined or designated in a colour other than red on

the map or plan attached to the last preceding Crown grant of that land, and

the grant must be construed accordingly.

(4) Despite a rule of law to the contrary, if Crown land bordering on a lake,

river, stream or a body of water is or has been granted by the government,

in the absence of an express provision in the Crown grant to the contrary, no

part of the bed or shore of the body of water below its natural boundary

passes or is deemed to have passed to the person acquiring the land, and

the Crown grant must be construed accordingly.]”

Section 55(1) provides that no part of the bed of a water body below the natural boundary is

conveyed by a provincial Crown grant if the water body is “coloured, outlined or designated in a

colour other than red” on the map or plan attached to the grant. After reading section 55(1) it

is tempting to look at the map or plan attached to the Crown grant from which a parcel is

derived and if the map or plan shows a water body coloured blue, for example, conclude that

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the water body is not included within the parcel granted or within the title of any parcel into

which the granted parcel has been subdivided. This is a mistake because it ignores the

exception to section 55 set out in section 56 of the Land Act. That section is as follows:

“Application

56 (1) Section 55 (1), (2) and (3) applies regardless of the area shown on the

Crown grant or on the official plan, and the area of land shown on the map

or plan attached to the Crown grant must not be reduced by any lettering or

numbering on the map or plan.

(2) Section 55 does not affect the right of any of the following:

(a) a grantee from the government or a person claiming under the

government, if the right has been determined by a court before

March 27, 1961;

(b) the registered owner of land to whom an indefeasible or absolute title

has issued before March 27, 1961 that specifically includes the bed of a

body of water coloured, outlined or designated in a colour other than

red on the map or plan attached to a Crown grant;

the appropriate land title office before March 27, 1961, if the plan

includes the bed of a body of water coloured, outlined or otherwise

designated in a colour other than red on the map or plan attached to a

Crown grant.”

The key exception is in subsection 56(2)(c). That subsection provides that if the water body is

included within the boundaries of a parcel created by a subdivision plan deposited before

March 27, 1961, section 55 does not apply at all. A great many parcels were created by

subdivision before that date (or derived from parent parcels created by subdivision before that

date), which makes it common to find parcels that include within their boundaries, rivers,

streams, lakes and other water bodies. In such cases it does not matter whether the water

body was shown in blue or some other non-red colour on the map or plan attached to the

Crown grant. If the water body is within the boundaries of the land granted, (which can be

determined by looking at the boundaries as described in the grant) it is privately owned, unless

the Crown grant includes actual text that specifically says the water body is excluded from the

land granted, a circumstance which is relatively rare.

A second mistake is to ignore the distinction between the federal and provincial Crown. Where

a water body is included within the boundaries of a parcel conveyed by Crown grant we have

already seen that section 55 has no application if the originally granted parcel has been

subdivided before March 27, 1961 and the water body is included within the boundaries of a

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parcel shown on the subdivision plan. However, even where the originally granted parcel has

not been subdivided before that date, section 55 still may not apply.

Even in respect of lands that have not been subdivided before March 27, 1961, section 55 only

applies if the lands were disposed of by the “government.” Under section 29 of the

Interpretation Act, the term “government” in provincial legislation means the provincial

government. It does not include the federal government. Accordingly, section 55 has no

application to divest an owner of a water body acquired under a federal Crown grant, no matter

what colour is used on the map or plan attached to the federal Crown grant.

This point is quite important in British Columbia because there are a significant number of

parcels in British Columbia that are derived from federal, rather than provincial, Crown grants,

particularly because the federal government issued numerous Crown grants to land within the

Railway Belt, a large swath of land conveyed by the Province to the federal government in the

1880’s to facilitate the construction of a national railway line. It wasn’t until 1930 that the

federal government returned the bulk of the Railway Belt land to the Province and in the

meantime it issued many Crown grants to private parties as part of the settlement of

townships. Section 55 of the Land Act has no application to federal Crown grants that included

the grant of water bodies.

A third issue that arises in relation to the situation where a water body is located within the

boundaries of a parcel concerns the interpretation of Crown grants. As noted, where a Crown

grant, even a provincial Crown grant, conveys a parcel that includes a water body and that

parcel is subdivided before March 27, 1961 into parcels that include the water body, section 55

has no application and the only question is whether the text of the Crown grant “excepts” the

water body. An exception occurs where the text of the Crown grant provides that a certain

geographic portion of land is excluded from the conveyance. It is different from a reservation

of rights, but the two are sometimes confused.

It is common for Crown grants to reserve a variety of rights with respect to water bodies,

including, for example, rights of passage and rights of fishing. Such reservations do not operate

to prevent a conveyance to the grantee of ownership of the water body itself. They merely

reserve to the Crown the right to use (or allow others to use) the water body for the specified

purposes, despite the fact that it is being conveyed to a private party.

In Coniagas Farms Ltd. v. British Columbia, [1993] B.C.J. No. 601, Coniagas obtained

declarations that it owned the bed of the North and South Alouette Rivers as they passed

through its lands, despite section 108(2) of the Land Title Act (to be discussed below) and

despite a reservation of the right of fishing in the Crown grant. It is clear from this judgment

that a reservation of a right of fishing does not operate to exclude the relevant water body from

an owner’s title. Interestingly, in the Coniagas case the Court found that while the federal

Crown (these were railway belt lands granted by the federal Crown) had reserved to itself a

right of fishing, the Province, after re-acquiring the federal Crown’s right of fishing (on the

reconveyance of railway belt lands), had not statutorily authorized the public to exercise those

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fishing rights. Accordingly, Coniagas remained free, in reliance on its fee simple ownership of

the relevant portions of the rivers, to prohibit the public from traversing the rivers for fishing or

other purposes.

B. Water Bodies Bordering a Parcel

The second common case is the case of property “bordering” on a water body. This has now

become a relatively easy case by virtue of section 55 of the Land Act. Property borders on a

water body when the boundary depicted on the plan is described in some fashion, such as

“natural boundary as shown on plan _________” or “high water mark,” that indicates the

boundary is intended to be the natural delineation between an upland parcel and land covered

by water.

One might have thought that where a Crown grant purported to grant only the upland parcel, it

is clear that the grantee did not acquire ownership of the adjacent water body. However, in

Canadian Exploration Ltd. v. Rotter, [1961] S.C.R. 15, the Supreme Court of Canada held that a

Crown grant of land bordering on a stream conveys ownership to the mid-point of the stream

unless the Crown grant explicitly says otherwise. The Court confirmed that such rule of

interpretation of Crown grants should apply even where the parcel acreage described in the

Crown grant describes only the size of the upland and even where the plan attached to the

grant shows the stream as lying adjacent to the land granted. Subsequent to the Rotter case,

the courts have confirmed that the rule in Rotter concerning ownership to the mid-point of

adjacent water courses applies only where the water course is non-navigable. Nevertheless,

the Rotter case established a principle of interpretation that the Province obviously did not like,

because it almost immediately adopted section 55 of the Land Act.

Section 55 of the Land Act reversed the interpretative principle applied by the Court in the

Rotter case. That, in fact, appears to be the main purpose of section 55, since as we’ve seen

section 55 usually has no application in cases where the land granted by the Crown

encompasses the water body, rather than borders on it. Where the provincial Crown has

granted land bordering on a water body, section 55(4) expressly provides that “despite a rule of

law to the contrary” (i.e. the rule applied in the Rotter case), the Crown grant must be

construed as not conveying the water body in the absence of an express provision in the grant

doing so.

Unlike the first case, where the land granted borders on a water body the exceptions to section

55 set out in section 56 will rarely be applicable. Section 56 provides that section 55 does not

apply where (1) a court has, before March 27, 1961, declared that the water body is owned by

the grantee (as in the Rotter case itself), (2) the water body is specifically described in the

owner’s indefeasible title as included, or (3) the water body is shown as included within the

area shown on a subdivision plan deposited before March 27, 1961. In the vast majority of

cases none of these exceptions will apply. Until the Rotter case was decided on May 6, 1960

most owners would have been unaware they might own to the midcourse of a river or stream

adjacent to their property and it is unlikely that after the Rotter case was decided many of them

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rushed to obtain court declarations of ownership or to include the relevant portion of the water

body in a subdivision plan deposited before March 27, 1961. It will be even rarer, if ever, that

the Crown itself has included text in the Crown grant specifically conveying ownership of the

water body, while at the same time showing the water body as adjacent to the land granted

rather than included within it.

The only caveat in the case of land bordering a water body is again the observation that section

55 is not applicable to parcels derived from federal Crown grants. In such cases, the rule in

Rotter would appear to still apply in the absence of federal legislation similar to section 55.

C. Water Bodies Left as Subdivision Remainders

That brings us to the third common situation, which is the situation where a water body was

originally included within the boundaries of land granted by the Crown, but subsequently

excluded from the area shown within a subdivision plan of the originally granted parcel (or a

subsequent parcel). This is the situation to which section 108(2) of the Land Title Act is

potentially applicable. Section 108(2) is as follows:

“108(2) If the subdivided area shown in and included in a subdivision or

reference plan deposited in the land title office before or after this section

comes into force adjoins land covered by water, and the land is included in

the subdivider's indefeasible title and adjoins land the title to which is

vested in the Crown in right of the Province, the deposit is deemed to be a

transfer in fee simple of the first mentioned land to the government, and

the title of the registered owner to the first mentioned land covered by

water is deemed to be extinguished.”

To explain section 108(2) it may be helpful to consider a hypothetical situation. The situation is

this: The Crown (provincial or federal) grants land to John Smith (call it parcel A) in 1888. The

plan attached to the Crown grant shows a water body (part of a river) coloured in blue lying

within parcel A, without text in the grant excepting the water body from the conveyance. I

picked blue, because blue water bodies are potentially exempted from Crown grants by section

55 of the Land Act. John Smith subdivides parcel A into two lots in 1910 by a plan of subdivision

that encompasses the water body. Since John Smith deposited this plan before March 27,

1961, section 56(2)(c) of the Land Act provides that section 55 does not apply. Accordingly John

Smith, as the owner of the two new lots, still owns the water body. John Smith then sells one

of the two parcels (parcel 1) to Bob Jones. Mr. Jones further subdivides lot 1 into four lots in

1920. Thinking he does not own the portion of the river lying within Lot 1, he has his surveyor

prepare a subdivision plan that includes only the upland portion of Lot 1, such that the

subdivision plan depicts the relevant portion of the river as lying adjacent to the new lots,

rather than within them.

In the absence of section 108(2) of the Land Title Act, the effect of Mr. Jones’ actions would be

to create five lots, the four new lots he has shown on the subdivision plan and a remainder that

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is comprised of the portion of the river that was included within the title to Lot 1 immediately

before the deposit of the subdivision plan. The river remainder would continue to be owned by

Mr. Jones even though he deposited a subdivision plan that did not account for the river

remainder (because he believed the river was owned by the Crown). Section 108(2) of the Land

Title Act now vests such excluded water bodies in the Crown, where the excluded remainder

itself borders on other Crown land.

Before turning specifically to the conditions that must be satisfied for Section 108(2) to operate,

I would note that in Pacific National Investments Ltd. v. Victoria (City), [2000] S.C.J. No. 64, the

Supreme Court of Canada confirmed that section 108(2) of the Land Title Act has nothing to do

with cases in which the water body is actually part of the area described in a subdivision plan.

It is concerned only with remainders, i.e., with cases in which the subdivider fails to include the

water body within the area shown in the plan. This appears clear from the text of section

108(2) itself, but apparently was disputed in the PNI case, which dealt with a portion of a water

body within the subdivision plan area.

For section 108(2) to operate so as to vest a portion of a water body in the Crown, four

conditions must be satisfied (1) prior to a subdivision, the subdivider must own the relevant

portion of the water body; (2) despite that ownership, the subdivider must deposit a

subdivision plan that does not include the water body; (3) the excluded water body must

“adjoin” the land included in the plan; and (4) the water body must adjoin provincial Crown

land.

If we return to the example of Mr. Jones’ subdivision, we see that the first three conditions are

satisfied. Mr. Jones owned the water body before the subdivision. It was within the land area

granted by Crown grant and section 55 of the Land Act does not apply because it was also

included within the area covered by a subdivision plan deposited before March 27, 1961.

Despite his ownership, Mr. Jones deposited a subdivision plan without including the water body

as part of the lots shown on the plan. Condition 2 is therefore also satisfied. After the deposit

of the plan, the water body “adjoins” the new lots, as a remainder, such that condition 3 is also

satisfied. My factual outline, however, said nothing about whether the portion of the river

included in Mr. Jones’ title immediately before the subdivision adjoins provincial Crown land. If

the water body left out of the subdivision plan does adjoin provincial Crown land, then the

fourth and final condition is satisfied and section 108(2) has the effect of vesting title to the

water body in the provincial Crown. If the portion of the water body left out of the subdivision

plan does not adjoin provincial Crown land, Mr. Jones continues to own it and the Registrar of

Land Titles should register title to it as a remainder.

Section 108(2) of the Land Title Act is a very powerful section. It operates I think much more

commonly than section 55 of the Land Act, although the latter provision appears to be the one

more commonly cited by surveyors and others as the main provision that vests title to water

bodies in the Crown. As noted above, the application of section 55, outside of its effect as a

provision reversing the rule in the Rotter case, is really quite rare. Section 108(2), on the other

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hand, comes into play quite frequently since it is fairly common for owners to leave water

bodies out of the area they include within their subdivision plans.

When confronted with a subdivision plan that fails to include a water body located within the

parent parcel, one can only speculate as to why the owner who deposited the plan did not

include the water body as part of the newly created lots. My guess is that many owners, and

many surveyors who advise them, simply believed wrongly that the water body was already

owned by the Crown such that it could not be included as part of the new lots. Whatever the

explanation in a particular case, section 108(2) does operate to divest owners of water bodies

previously owned by them where they are careless enough to fail to include the water body as

part of lots that are created by subdivision and the other conditions of section 108(2) are

satisfied.

I would make three final comments before moving on to discuss briefly a few other aspects of

water law. First I would simply mention that I have encountered (more than once) another

misconception regarding ownership of water bodies, namely, that owners who subdivide land

are statutorily required to return any privately owned water bodies to the Crown by including

the designation “Returned to Crown in Right of the Province” on the subdivision plan in

accordance with section 108(1) of the Land Title Act. This view is obviously incorrect. Section

108(1) does not require owners to return water bodies to the Crown upon subdivision. It

merely provides the mechanism by which they may do so if they so choose. There is no other

statutory provision, in the Land Title Act or elsewhere, that requires an owner to convey water

bodies to the Crown as a condition of subdivision.

My second concluding point on this part of the paper is that the principles of accretion and

erosion have nothing to do with the issue of ownership of water bodies discussed above.

Principles of accretion and erosion apply where an upland parcel borders on a water body, such

that there are separate titles to the upland parcel and the water body. They apply where there

is a property boundary separating the water body from the upland parcel. In these

circumstances, there is no real magic to the principles of accretion and erosion. They flow

directly from the fact that the property boundary is a natural boundary. Where a boundary

established by Crown grant or subdivision plan is a natural boundary, then the clear intention of

the grantor or the subdivider is that the boundary will continue to be the natural boundary as it

changes by natural processes from time to time.

My final comment is that none of the above analysis is affected by Section 2 of the Water Act,

which declares that the Province owns all water in streams. That section deals with ownership

of the water itself, not with the land over which the water runs. Accordingly, Section 2 is not

relevant to the question as to who owns the beds of water bodies in British Columbia.

III. COMMON LAW RIGHTS

Apart from the issue of ownership of water bodies, there are countless common law issues

regarding the use or diversion of water. I mention just a few of them.

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At common law, owners of land through or adjacent to which a water course runs have the

right to have the water come to them in a quantity and quality not materially diminished by

those above them. Accordingly, at common law a lower riparian proprietor may have a claim

against a person who constructs improvements that divert or impede the flow of water in a

natural water course. The lower proprietor also has a claim in nuisance if persons pollute the

water flowing in the natural water course.

With respect to surface water not flowing in a defined channel, such as rainwater that collects

periodically and flows from upper land to lower land or flood waters that periodically flow over

land outside the defined channel of a watercourse, the common law in British Columbia

embraces the “common enemy” rule. Lower proprietors are entitled to construct walls or

embankments to prevent the inundation of their land from such water even if the effect is to

throw the water back on the land of an upper proprietor to his or her detriment. The lower

proprietor may of course be subject to governmental regulations that limit his or her right to

construct the necessary improvements, but as regards the common law relationship between

owners, an owner does not commit a tort simply by protecting himself or herself from flood

waters or other surface water even if the consequence of doing so is flooding of other land.

Upper owners also have protection at common law. At common law an upper owner may allow

rainwater to drain onto land below even if the effect is detrimental to a lower proprietor. The

weight of case authority (there are a few exceptions) indicates that this is true even if the upper

owner has constructed impervious surfaces that increase the volume of water flowing from his

or her land. This rule protects local governments where natural drainage from an impervious

road surface may be causing damage to neighbouring properties that might not occur in the

absence of the impervious road surface.

An upper owner cannot, however, artificially collect water, including rainwater, and direct it on

to other land without regard for the consequences of doing so. Once an owner artificially

collects water, he or she must see that it is discharged without causing harm to others. Thus

local governments who collect water by means of drains or ditches must ensure the water is

discharged without harm to persons or property. While a local government may have a

statutory (or even common law) right to discharge water into a natural water course, it may

have liability to a property owner if by doing so it causes flooding or other harm that would not

otherwise occur.

The common law also deals with underground water. At common law an owner of land does

not own the water flowing under it. If the water flows in a defined channel, such as in an

underground stream, then the rules applicable to surface water flowing in a defined channel

apply. If the ground water does not flow in a defined channel, then at common law a surface

owner may extract as much water as he or she pleases without liability to other surface owners

having a similar common law right to extraction. Accordingly, at common law an owner may

extract ground water by means of a well even if the effect is to cause the neighbour’s well to

run dry.

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IV. GOVERNMENTAL REGULATION

All property rights may be regulated, including rights that would otherwise be an incident of the

ownership of water bodies. An owner may own the bed of a stream flowing through his or her

property, but that does not mean the owner’s rights are immune from regulation. In fact an

owner of a stream may find that there is little left of his or her property right, except the ability

to prohibit trespassers, once the cumulative effect of governmental regulation is felt. The

federal Fisheries Act prohibits persons from making harmful alterations to fish habitat without

federal approval, with the term “fish habitat” being very broadly defined. The provincial Water

Act requires a permit to do work “in and about a stream,” giving the provincial government

extensive control over persons wishing to undertake such work. And, of course, local

governments have broad powers to regulate the use of the surface of water through zoning, to

prescribe building or use setbacks or to adopt water course protection controls through the

establishment of environmental development permit areas. Indeed, a local government can

even require in its development permit regime for the imposition of a condition requiring the

dedication of a natural water course.

Other common law rights, such as those mentioned above, may also be regulated. The

Province could, for example, regulate the circumstances in which a lower proprietor may

construct works to protect his or her land from flood waters, in order to protect other owners

from the consequences of such works.

There are, however, constitutional limits to governmental regulation. It is beyond the scope of

this article to delve deeply into those constitutional limits, but it is important to mention two of

them. First, a province, and those exercising regulatory powers delegated to them by a

province, cannot regulate the use of federal land, even where the land is being used by a party

other than the federal government itself. This is because under section 91(1A) of the

Constitution Act, 1867, the power to legislate in relation to federal real property lies solely with

the federal government. Accordingly neither the Province nor local governments may regulate

the use of water bodies that are federally owned. Provinces also have limited ability under the

Constitution Act, 1867 to regulate in relation to “navigation and shipping,” another area of

federal legislative jurisdiction, although in this case provincial (or municipal) regulation is

permitted if it does not affect a “core” aspect of federal jurisdiction over navigation and

shipping. For a discussion of these principles please see Francesca Marzari’s 2008 Seminar

Paper “Everything You Ever Wanted to Know About Navigable Waters But Were Afraid to Ask”.

V. CONCLUSION

Water law is a large field involving many more issues than those touched on in this paper. For

now, I hope that this paper at least helps with one of the more complex water law issues – the

issue of private ownership of water bodies in British Columbia.

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NOTES

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NOTES