55 Bodies Of Water

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, §7:21 and §7:23.

CASE LAW

Scope of Section 55

A registered owner of land is not precluded by s. 55 of the Land Act from owning land below the natural boundary of a lake, river, stream or other body of water. The wording of s. 55 presumes that there are bodies of water not covered in its provisions. The waters referred to in s. 55(1) are former Crown land disposed of before 1961 and land where any water on it is “outlined in a colour other than red” on the map or plan attached to the grant. When these two conditions precedent have occurred then the water in question comes under the strictures of s. 55. If they do not occur then presumably the title to the body of water can pass with the land (Steele v. Realty World Brookside Realty, [1986] B.C.J. No. 2612 (QL) (S.C.)).

Surveyed Land Above the Natural Boundary

A plan deposited in 1939 included surveyed land and immediately adjacent land between a creek bed as it existed at the time the plan was deposited, and the creek bed as it existed in an earlier plan. The triangular parcel between the creeks was designated as riverbed on the plan. Years later, the defendant municipality constructed dykes along the creek within the riverbed. Through a process of artificial reclamation, the defendant then used land created by the dykes and located above the natural boundary of the creek to construct a public walkway. The plaintiffs, as registered owners of the surveyed land, claimed ownership of the triangular parcel of riverbed and brought this action against the defendant for trespass and damages. The court found that the plaintiff’s predecessor in title acquired the land by Crown grant and that, by the common law rule of ambulatory water boundary, the grant also included the area shown as riverbed on the plan. The court found no evidence of facts existing at the time of the grant and known to both parties which showed that it was the intention of the Crown to retain the bed of the creek. Therefore, at the time the dykes were constructed, the land created above the new natural boundary belonged to the owner of the bed. Section 55 of the Act is confiscatory in nature and must be given strict construction. That section refers to land below a natural boundary and clearer language would be required to bring within the ambit of the section land that was once, but was no longer, below the natural boundary. Although s. 55 does have retroactive effect, that effect is limited to land below the natural boundary and not, as in the present case, to land that at the time s. 55 was enacted and at all times thereafter has been above the natural boundary. The court granted the petitioner’s applications for a declaration of ownership and an injunction and ordered the defendant to pay damages (McLeay v. Kelowna (City), 2004 BCSC 325). Note that the earlier trial decision in this matter (McLeay v. Kelowna (City), 2002 BCSC 168) was overturned by the Court of Appeal (McLeay v. Kelowna (City), 2003 BCCA 523) and referred back to the trial court for a determination of the issues under s. 55 of the Land Act.