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The court dismissed a waterfront access claim, holding the plaintiffs’ registered ancillary-use interests were not easements at law and did not give them riparian rights enforceable against AG.
The trial judge erred in concluding that 'High Water Mark' in Registered Plan 33 unambiguously meant the NCHWL (106.33 ft a.d.); because Plan 33 is latently ambiguous and JLL is shown to have intended to convey the full extent of the title it held, the proper starting point is the water's edge at the time of the 1902 Crown patent and the matter must be remitted to the trial court to determine that historical water edge and the effects, if any, of accretion, erosion or artificial changes, and any resulting riparian rights; the appeal is allowed and the trial orders are set aside.
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The Court of Appeal upheld rectification of an easement for a public wharf, rejected a broad public-access reading, disallowed parking outside the easement, and set aside damages.
The court held the respondents' use of the right-of-way to transport materials, equipment and workers to the non-benefitted Island amounted to a colourable enlargement of the easement; riparian rights do not expand the scope of the easement; FGIL, as a separate corporation, has no entitlement to use the right-of-way; accordingly declarations were granted that the right-of-way cannot be used for commercial purposes and that FGIL has no right to use it, while recognising the Viehbecks may access adjacent properties incidental to their private enjoyment but not for the benefit of FGIL.
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The court held that an easement gave the defendants access to the foreshore, not a restricted 3-metre beach strip, and dismissed the plaintiff’s claim with costs.
The court dismissed a nuisance and negligence claim over flooding caused by recurring beaver dams on the defendants’ land, finding no duty to alter a longstanding natural watercourse.
Appeal partly allowed: the Crown fishing and hunting lessees could recover damages from the dam’s use, though demolition was refused and the statutory scope divided the Court.
The Supreme Court of Canada held that a clerical error in an expropriation description did not void the award, and upheld damages for obstruction of riparian access.
Appeal allowed. The Court held that block F extended to the river, but the respondent had no enforceable easement to maintain the dam and raceway.
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