94 Endorsement Of Certificate

PRACTICE

Accretion

Application Procedure

Accretions dealt with under this section are those adjoining beds of bodies of water belonging to the Crown Provincial and not being a federal harbour. The following procedures apply where a plan includes land that adjoins Crown land and that has lawfully accreted to the land being subdivided:

• (1) Application to Surveyor General

The subdivider makes application for inclusion of the accreted land to the Surveyor General. For the procedure and supporting material, see Circular Letter No. 477A, April 6, 2020, at “Re: Accretion and Natural Boundary Adjustment Applications to the Surveyor General Pursuant to Sections 94(1) and 118(1) of the Land Title Act (C.L. No. 477A)” in this chapter. The land title office is not involved in the application procedure.

• (2) Surveyor’s notation

Electronic Plans

If there is consent to make an application to include accreted land, the British Columbia land surveyor adds the following notation on the electronic plan:

The following signature block is included in the electronic Application to Deposit Plan at Land Title Office:

• (3) Submission to Land Title Office
• Electronic Plans
• An electronic Application to Deposit Plan at Land Title Office and an electronic plan must be forwarded to the Surveyor General for signature. After the plan is signed, it is returned to the British Columbia land surveyor for submission to the land title office.

Title to Accreted Land

The registrar does not register a separate title for the accreted land but consolidates title to it with adjoining land in a new title.

Plan Headings

The plan heading must refer to the descriptions of both the upland property and the accreted area. For example:

Old Natural Boundary

The surveyor must ghost in the old natural boundary in the body of the plan to indicate the former natural boundaries.

Natural Boundary Adjustment

Where a new plan shows a water boundary differing from the water boundary shown on the plan already on deposit, and the bed of the body of water fronting the upland property is Crown land under the jurisdiction of the province, the following procedures apply:

• (1) Application to Surveyor General
• The subdivider makes application for an adjustment of the natural boundary to the Surveyor General. For the procedure and supporting material, see Circular Letter No. 477A, April 6, 2020, reproduced in Appendix 3 at “Re: Accretion and Natural Boundary Adjustment Applications to the Surveyor General Pursuant to Sections 94(1) and 118(1) of the Land Title Act (C.L. No. 477A)” in this chapter. The land title office is not involved in the application procedure.
• (2) Surveyor’s Notation
• Electronic Plans
• If there is consent to make an application to adjust a natural boundary, the British Columbia land surveyor adds the following notation on the electronic plan:

The following signature block is included in an electronic Application to Deposit Plan at Land Title Office:

• (3) Submission to Land Title Office
• Electronic Plans
• An electronic Application to Deposit Plan at Land Title Office and an electronic plan must be forwarded to the Surveyor General for signature. After the plan is signed, the electronic documents are returned to the British Columbia land surveyor for submission to the land title office.

Plan Reference and Natural Boundary

The surveyor does not need to refer to s. 94(1)(d) in the heading or body of the plan as reference to that section in the certificate is sufficient. The surveyor shows only the present natural boundary on the plan.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Surveyor General’s Circular Letters

See Circular Letter No. 477A, April 6, 2020 at “Re: Accretion and Natural Boundary Adjustment Applications to the Surveyor General Pursuant to Sections 94(1) and 118(1) of the Land Title Act (C.L. No. 477A)” in this chapter.

Statutory Right of Way Plans

See the practice discussion under s. 118 of the Act regarding right of way plans involving water boundaries.

Other Applicable Statutes

See s. 55 of the Land Act, in chapter 44 (Land Act, R.S.B.C. 1996, c. 245), to determine whether the Crown owns the bed or shore of a body of water below its natural boundary. See also s. 4 of the Ministry of Environment Act, which sets out the ministry’s responsibilities with respect to water.

Secondary Sources

For a discussion of accretion, see Di Castri, Registration of Title to Land, vol. 1, chap. 7, particularly paras. 200, 204, and 206.

CASE LAW

Accretion Must Be Fixed to Dry Land

Accretion can result from the gradual retreat of water from the land, or by the deposit of alluvial deposit to the land or foreshore. In both cases, the act of accretion means an adding to, or a fixing on to, the existing dry land. If there is a water channel, or a strip of land or other barrier between the upland and the newly created land, no accretion takes place (Re Quieting Titles Act; Re Bulman’s Petition, 1966 CanLII 633 (BC SC)).

Allocation of Accreted Land between Land Owners

Two islands, formerly separated by water, were joined through accretion. The owners of the islands each claimed the new land. The court applied the principle of proportionate allocation and divided the accreted land joining the islands into two portions, thus recognizing both owners’ rights (Re Brew Island, [1977] 3 W.W.R. 80 (B.C.S.C.)).

Accreted Land Not Being Subdivided

The respondent owned property along the Columbia River downstream from a hydro dam. As a result of the operation of the dam, the water level in the river was lowered, the natural boundary of the land changed, and new land accreted to the respondent’s property. The respondent sought a declaration from the trial court as to the nature, extent, and location of the property’s boundaries. In considering the Land Title Act as a whole and, Part 7 of the Act in particular, the trial court found that the Surveyor General’s authority to determine water boundaries and accretion issues under s. 94 did not extend to accretion or water boundary issues at large. Rather, this authority was limited by the express language in s. 94 to land that was in the process of being subdivided and for which a subdivision plan was being tendered. As a result, the trial court found that the court, and not the Surveyor General, had jurisdiction to determine the boundary issues raised by the respondent. The province, as appellant, and the Surveyor General, as intervenor, appealed on the issue of whether ss. 94 to 96 of the Land Title Act constituted an exclusive code for the determination of claims of accretion by riparian land owners in British Columbia. The appeal court found that s. 94 is not limited to the certification of subdivision plans but applies to both subdivision and reference plans. However, the appeal court also found that the language of ss. 94 to 96 is not sufficiently clear in its intention to modify, alter, or abrogate the common law doctrine of accretion so as to preclude resort to the common law courts for determining boundary issues. Under s. 94, the Surveyor General must consider whether the land in question has “lawfully accreted”. To give meaning to this language, one must assume that the Legislature intended to incorporate the common law doctrine of accretion into the statute. Accordingly, before certifying a change to the boundary of a plan to include accreted land, the Surveyor General must be satisfied that the common law test for accretion has been met. Sections 94 to 96 are not properly directed at determining title or the transfer of title, but rather are provisions directed at the accurate depiction of boundaries upon the deposit of survey plans in the land title office. In vacating the trial court’s limitation on the jurisdiction of the Surveyor General with respect to the certification of boundaries on subdivision and reference plans, the appeal court also held that the respondent was entitled to seek a declaration in the Supreme Court that the disputed lands had accreted to the respondent’s benefit (Bryan’s Transfer Ltd. v. Trail (City), 2010 BCCA 531, varying 2009 BCSC 1198).

Common-Law Acquisition of Title to Accreted Land

In 0640453 B.C. Ltd. v. Tristar Communities Ltd., 2018 BCCA 460, the court confirmed that an upland owner may acquire title to accreted land under the common law, and that in such a case, the owner has good and marketable title to convey the accreted land without applying to the Surveyor General to certify an updated reference plan.

Dispute over Whether Creek Moved

For a case where litigation ensued after the Surveyor General approved an application under s. 94(1)(d), but landowners refused to approve the proposed change pursuant to s. 103, see the case annotation of Burko v. Martindale, 2023 BCSC 2 under “105 Power of registrar if measurements on plans conflict” in this chapter.