Thanks to Richard Sehmer for his assistance with this article
On November 29, the British Columbia Court of Appeal released what may prove to be an important judgment on the adjustment of waterfront land boundaries as a result of either soil deposits or the ebbing of water adjacent to one’s property (“accretion”). The focus of this appeal, which is cited as Bryan’s Transfer Ltd. v. Trail (City), 2010 BCCA 531, was whether sections 94-96 of the Land Title Act, R.S.B.C. 1996, c. 250 constitutes an exclusive code regarding this issue.
The Surveyor General, under these sections, is charged with the overall responsibility for ensuring the integrity of the land survey system and the proper definitions of boundaries. The landowner, in this case, whose land had been altered by the flow of the Columbia River, submitted that the Province of British Columbia is not competent to empower the Surveyor General with the exclusive jurisdiction to determine legal questions relating to this issue.
The dispute arose after a dam was erected upstream on the river, and, as a result of the water subsiding, the land-owner’s adjacent property was extended. Further, the City (of Trail) announced that they were going to add to an existing water line and build a service road on this extended land. After the landowner filed an accretion application pursuant to section 94(1)(c) of the Act, the Surveyor General expressed an opinion that there was no evidence of lawful accretion to his property.
The common law doctrine of accretion (as defined by Dickson J. in Re Chuckry and the Queen in Right of the Province of Manitoba, [1972] 3 W.W.R. 561 (Man. C.A.)) states that this “accreted” land is owned by the adjacent property owner. In interpreting the statutory provisions relevant to accretion, Madame Justice Kirkpatrick, for the Court of Appeal, cited numerous authorities and concluded that if the legislature had intended to eclipse the common law, they would have done so expressly.
Since 2007, the land-owner has been attempting to sue the City for trespass and bar it from construction on ‘his’ accreted land. This decision will allow him to do pursue that claim.
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