Alberta Water Front Property: Remember Your Riparian Rights

Key Points

Water levels naturally rise and fall over time. For a person who owns lands along a watercourse, this fact can be a blessing and a curse. A person's land holdings may be increased as water levels decrease exposing previously submerged land. Conversely, a holding can be decreased by water washing away or eroding a bank as water levels increase. 

From a legal standpoint, such land and issues are captured under the doctrine of riparian rights. These are a common-law collection of rights for persons whose land is adjacent to a watercourse. Included are such rights as accessing the water, using the water, and accretion (the right to the property up to the bed and shore of the water body, increasing one's landholding as water recedes). Accretion was the main issue in this case.

Facts

In short, this case is about who owns an 11.5-acre parcel of land once covered over by Lake No. 5. Each of Mr. Bowlby and the Bernards held valid certificates of title for parcels of land side by side, with the 11.5-acre Bernard land covering what had previously been submerged under Lake No. 5.

The Bowlby title was first issued in 1920 by way of letters patent, which described the original 38.9-acre parcel (i.e., the Bowlby land) as encompassing everything “excepting thereout and therefrom the land covered by the waters of Lake No. 5”. In 1925, a certificate of title was issued for the land.

In 1929, the then owner of the land was advised by the Department of the Interior that the water level of Lake No. 5 had receded, creating 11.5 acres of additional land between his property and the lake. The then owner purchased the land and a quit claim patent was issued. However, the owner died in 1930 and before applying for a certificate of title for the 11.5 acres. Oddly, it was not until 1948 that a certificate of title for the 11.5 acres was issued. Over the subsequent years, each parcel was sold and re-sold under separate title. 

Positions 

Bowlby made three arguments in support of his application to have the Bernards’ title for the 11.5 acres cancelled and his property extended:

• He asserted the legal right of accretion under his riparian rights. In other words, that his property had been and was riparian in nature meaning the western boundary was not fixed, but rather constituted the shoreline of Lake No. 5 as it existed over time. For this reason, the Bernard title was legally void. Bowlby argued that the title issued in 1948 was duplicative of what was always the properly understood contours of the property – that is running with Lake No. 5 as it receded (i.e., riparian). 
• In response to the Bernards’ claim that their title makes operative the doctrine of indefeasibility, Bowlby asserted sections 62(1) and (2) of the Land Titles Act, to claim the “prior certificate of title” exemption defeated this position.
• He argued the Limitation Act does not apply to recovery of real property, owing to amendments made to the Act in 2022. 

The Bernards argued:

• That the intention of the Crown was to create two separate titles, one of which they acquired. 
• Their title is conclusive proof of ownership as guaranteed by the Crown on issuing same (i.e., the aforementioned doctrine of indefeasibility), and disputed the assertion that section 62 of the Land Titles Act created an exemption.
• They also argued limitations, as Bowlby was aware of the issues at or around 1982. 

Court Analysis

The Court started by looking at first principles, and specifically noting that all interests in land – in Alberta - are organized under the Torrens system. The Torrens system gives rise to three principles:

Despite the Torrens system, the Court confirmed that land title registration under the system cannot grant or remove a riparian right. Such rights arise automatically whenever land described by title has a natural boundary with a natural water body. In other words, the Crown does not expressly grant riparian rights - whether they exist is an incident of ownership (see para 30).

This common law “bundle of rights” know as riparian rights entail a number of things, including: access to the water, a right to use and take water, to divert water, and the right to accretion. In Alberta, the existence of riparian rights is both codified and limited by legislation; for example the Water Act permits such rights so long as not inconsistent with the Act. 

Against this backdrop, the Court assessed how to identify riparian land where accretion is alleged to have occurred. In particular certain conditions must be satisfied: 

• The increase of land must occur in a slow and gradual manner; and 
• The land “must have a boundary that is a water body or watercourse and then the land must continue to be bound by waterbody or water course after the water has receded” (see para. 38). 

The Court rejected the argument of the Bernards that the intention of the grantor matters. The court re-affirmed the long-standing position in Alberta, that interpretation of a land title is a question of law. This includes questions of whether land has a natural boundary which could be a watercourse or water body. In short, the intention is not relevant. What is relevant is the Court’s interpretation of the title document.

Turning to the heart of the matter, the Court found that an intervening title cannot displace riparian rights. The Alberta cases are clear that, where riparian rights have not been extinguished by statute, they are appurtenant to the riparian parcel, are incidents of land ownership, and are not contractual rights. In sum, they run with the land not with the owner. As a result, once attached to the land they are not later defeasible by anything other than limited exceptions, that do not apply to this case. The eventual creation of a separate title does not affect the first title's inherent riparian rights.

Lastly, the Court addressed the respondents argument regarding limitation issues. We do not propose to go into that in depth here, other than to acknowledge that the Court concluded that the limitation did not apply by virtue of amendments to the statute, which precluded limitations applying to claims of this nature. The Court summarized by saying this application is thus one of a registered owner seeking to recover their lands for which there is no limitation period.

Ultimately the Court directed that the application be granted and the register of land titles cancel the intervening (Bernard) title.

Key Takeaways

The case is interesting for its useful summary of the existing law in Alberta surrounding riparian rights. Given the historical nature of the titles at issue, parties are cautioned to make careful review of the title and historical title of property. It is conceivable that there are other properties which would be similarly situated and thus enjoy similar riparian rights that may or may not be currently reflected in the land titles and boundaries applied.

On a practical note, but unclear form the decision, it would seem the Bernards have recourse to seek recovery of their purchase from the Crown. As noted above, a principle of the Torrens system is the insurance (or assurance) principle.