Assignment 3

Contents:
Part I:

Survey Report.

Part II: Discussion and analysis of principle:

License of Occupation and Flooding
Rights.

i of 1

SURVEY REPORT.

PURSUANT TO AN APPLICATION UNDER THE

BOUNDARIES ACT

REGARDING THE INVESTIGATION OF THE LIMITS

THE LAND DESIGNATED AS LOT 3, OF SUBDIVISION
PLAN 1-193, WITHIN LOT 8, CONCESSION VIII IN
THE GEOGRAPHIC TOWNSHIP OF TWISTED.

i of 1

Table of Contents
Introduction................................................................................................................ 1
Research and Field Work............................................................................................. 1
Historical and Title Review of The Lands....................................................................1
Commentary on The Term High Water Mark...............................................................2
High Water Mark Concept Within The Plan of Subdivision 1-1943...........................2
Concept and Test of Accretion.................................................................................... 3
Test of Accretion...................................................................................................... 3
Confirmation of present water edge as Low Mark...............................................3
Apportioning the Accretion with Due Care.................................................................3
Approach of demarcating newfound extension.........................................................5
Stage I (Reverting back to 1875 water edge)..........................................................5
Stage II (Apportioning the Accretion: 1875- 2016)..................................................5
Summary and Conclusions......................................................................................... 5

i of 1

Introduction
This report accompanies a Plan of Survey 15-2016 dated 15th February 2016. The heavy lines on the Plan of
Survey illustrate the boundaries subject in an application pursuant to the Boundaries Act.
It is emphasized that the primary purpose of this application is defining boundary due to two scenarios
respectively with respect to,

extension of land arising through accretion,

and change of boundary due to the effect of The beds of Navigable Waters Act (BNWA) and
consequent amendment of same, during the period from the original township survey of 1875 to
present day.

The boundary adjustments are only for the land resulting from above said scenario. For all other boundaries, there is
no dispute whatsoever, and all original metal posts are located at the corners of the lots that appear on plan of
subdivision 1-1943.
The goal of this report is to explain the rationale and ultimate conclusions in positioning the subject
boundaries as shown on the Plan of Survey 15-2016.
The applicants Thomas Vincent and Ink Marek are the registered owners of the lands designated as Lot 3 of
registered plan of subdivision 1-1943. This report will review the location of the boundary between the lands
designated as Lot 3 Lot 2 & Lot 4 in relation to eastern Boundary, Wet Lake. All three parcels are located within the
boundaries of Twisted Township Lot 8, Concession VIII. The boundaries under consideration are all on the interior
of the Township Lot 8 and are illustrated on the accompanying Plan of Survey.

Research and Field Work

In order to investigate the boundaries, research was undertaken and documents and information were
gathered from public agencies and local surveyors in Twisted Township. This included: The Land Registry Office in
Kinston, Ontario Service Management Section of the Ministry of Natural Resources, Peterborough &Thames
Limited Ontario Land Surveyors. Each company or agency was contacted by telephone.
If they had no information they would indicate so. If they had information I asked for an appointment to
attend at their office to review the file(s) and obtain the records. In order to ensure that no information was
overlooked, I requested an additional search by written transmittal. Copies of the replies are included. In addition
internet on-line sources were checked for information with regard to apportionment of Accretion.
Field work for this project, as represented on the BA Plan, was completed 10th February 2016.

Historical and Title Review of The Lands

The subject waterfront property is located in Lot 8, Concession VIII of the original survey of Twisted
Township. Township was surveyed in 1875. Crown grant dated 1888 for the above said lot was issued to Mr.
Thomas Cundle.
It describes the subject lands simply as Lot number eight in the eighth Concession of the Township of
Twisted, reserving free access to the shore of Wet Lake for all vessels, boats and persons" and "saving, excepting
and reserving ... the free uses, passage and enjoyment of, in, over and upon all navigable waters. From that it was
clear that the Crown retained no dry land between the patented lands and the waters as per the accepted policy
confirmed by previous court procedings, that any Crown patent which indicates that one of the boundaries of the
1 of 1

lands granted is to be a boundary of water. It establishes that boundary as at the waters edge and not upon any bank
or high water Mark.
In 1910, Mr. Thomas Bartley, get the ownership for the Lot 8, from his father by way of will. He, Mr.
Thomas Bartley, subdivided the property by plan of subdivision 1-1943 dated 1943.
All waterfront lots on Plan 1-1943 are shown on that plan to be limited on the east by a line labeled "High Water
Mark", east of which is Wet Lake.
Mr. Bartley sold the lot No 3 of this subdivision of 1-1943 Mr. Warner in 1943. Applicants Thomas Vincent
and Ink Marek acquired this land by way of purchase from Mr. Warner in 2000.

Commentary on The Term High Water Mark

Originally around 1800s, the early decades, Ontario properties fronting on navigable water body extend to
the waters edge by operation of the original Crown grants.
But in the early decades of this Province, transportation over land was difficult, roads were few and,
indeed, impassable for much of the year. For transportation and communication reasons, water frontage was of
fundamental importance to settlers when lands were originally patented by the Crown Lands Department.
Due to this, for many decades the Ontario Department of Lands and Forests (and the successor Ministry of
Natural Resources), contrary to well-established common law, vigorously promoted the use of high water
mark(meaning the landward side of the beach) as the boundary separating patented uplands from lands forming the
bed of the adjoining water body. On the basis of that notion, the beaches were considered by Crown officers to be
part of the bed of the adjoining water body and, therefore, taken for granted alienated Crown lands, except where a
water lot had been granted. The concept was raised to the status of legislation as part of an bill in 1940 (Statute Law
Amendment Act, S.O. 1940, c.28) but was found to be unworkable and was repealed in 1951 by the Beds of
Navigable Waters Amendment Act, S.O.1951, c.5.
Courts have been consistent in applying the common law rule placing the boundaries of inland non-tidal
riparian properties at the waters edge. The principle was confirmed by the Supreme Court of Canada in AttorneyGeneral for Ontario v. Walker. Any Crown patent which indicates that one of the boundaries of the lands granted is
to be a boundary of water, then it establishes that boundary as at the water's edge and not upon any bank or high
water mark unless, of course, the grant clearly reserves by description or otherwise a space between the lands
granted and the water boundary or unless the boundaries of the lot can be so clearly delineated by reference to an
original plan of survey as to clearly except or reserve to the Crown a space between the lands granted and the water's
edge.

High Water Mark Concept Within The Plan of Subdivision 1-1943

The subdivision plan was prepared after the policy introduction of treating beach as crown land.
So it was clear that intention of the original land owner was to subdivide the all land without keeping the
beach front, and the surveyor who did the subdivision survey just complied with the regulation to use the
landward side of the beach, called the "High Water Mark, as the limit of patented lands.
Due to the effect of amendments of BNWA in 1951, the eastern boundary was reverted back to
water edge, namely waters lowest mar of West Lake in agreement with decision of the Supreme Court
of Canada in Attorney-General for Ontario v. Walker (1971).

2 of 1

Concept and Test of Accretion

The principle of the accretion process is that it is natural, slow and imperceptible from moment to moment
and incremental. It only becomes the subject of attention when its cumulative effect becomes big enough to make a
difference. Once the fact of accretion is settled and apportioned with the concurrence of the adjoining owner of the
bed, or a court decision, it is already part of the title, and it acquires the legal characteristics of the land to which it is
added.
Accretion of land is of two types: one called "alluvium" where "sand and earth are washed up by the sea or
a river so as to make an addition to existing land" and the other called "dereliction" where "land is left dry by the
water retracing below the usual height.

Test of Accretion
By analyzing and interpolating available historical data from 1875 to present, observation of the boundary
gone through from 1875 to 2016, the date of Survey, it was confirmed that the shift of the water edge was natural
and slow and imperceptible and incremental.

Confirmation of present water edge as Low Mark.

Further, present water edge was observed for 10 days continuously to confirm that it agrees with the
historical trend and there are no storm surges and spring freshets.
The boundaries under review are in the east of original east boundary as depicted the subdivision of 1-1943
to water edge of Wet Lake.

Apportioning the Accretion with Due Care.

Bearing in mind that the surveyor does not make boundaries, there has to be some give and take
in survey requirements; measure for measure needs to be balanced by dollar for dollar. With due
consideration of the principle of The rights of title of riparian property should not be translated into an
unrealistic and extremely costly exercise in futile measurements all adjoining parcel owners views are
taken into account and best course of action to taken to equitably apportion the accretion .
The big challenge was to resolve the overlapping claims to the "new" lands and find the fairest
way of dividing it. The General principle is land should be equitably divided between riparian owners. In
dividing the accretion among the various riparian owners on the same side of the body of water, the
objective is to do so with equity and justice to each owner.
Two primary factors was considered in making the equitable distribution.
Owners shall have an equal share, in proportion to their lands, of the area of the
newly formed land.

Make sure that each owner has access to the water with an equal share of the new
waterline in proportion to his share on the old line of the water.

All courts that have been called upon to decide the ownership and division of accretion have subscribed to
the doctrine of equity and justice.
The four basic methods formulated to achieve equity and justices among the various claimants are:
3 of 1

1. The proportionate shoreline method

2. The perpendicular method, also used in the broad sense to include radial lines on curves.
3. The prolongation of the property line method
4. The proportionate acreage method
The proportionate shoreline method is to apportion the new frontage along the water boundary in
the same ratio as that along the line of the old water boundary.

Certain modifications may be required under particular circumstances where peninsulas or bays would
make strict apportionment inequitable. A beginning and ending point for apportionment may have to be
established by one of the other methods before the affected land can be apportioned.
The second preference is the perpendicular method whereby a line is drawn from the boundary
termination point on the original shoreline perpendicular to the new shoreline.

The prolongation of the property line method is simply to prolong the property lines until they
reach the edge of the water. This method is rarely used.
The proportionate acreage method: This method is used where the accreted land is more valuable
than the waterfront. In this method contiguous riparian owners each take their proportionate share of the
accreted land based on the total extent of their front lines, related to the total quantity of accreted land to
be divided.

4 of 1

Approach of demarcating newfound extension

The subject Boundary act Survey and Application is intended to confirm the boundaries of lot 3
with respect to adjacent lot 4 and lot 2 in relation to current low level mark. This was done in two stages
to manage and better handle the complex situation. In the first stage, High Water mark boundary is
pushed back to water edge of 1875. Then again, this pushed back boundary was shifted to present water
edge boundary. Further, to avoid unnecessary problem and keep serenity among the community, the
problem was localized to Subdivision plan of 1943, by extending outer boundary towards to water edge.

Stage I (Reverting back to 1875 water edge)

Consequence to amendment of BNWA Act of 1951, lake side boundary was reverted back to
water edge of 1875. Here all four methods as mentioned earlier are tried. But it was found out, that only
the acarge method provides reasonable way of distribution of excess land. Therefore it was used.
Sketches are annexed in the appendix for clarification purpose. Affidavits of consent of all involved stake
holders are annexed.

Stage II (Apportioning the Accretion: 1875- 2016)

.
Here also, all four methods are tried out. Sketches are annexed for clarifications.
As evidenced in the sketches, the proportionate shore line method concurrent with acarage
method best fit the situation, especially with regard to consideration of equitable distribution extent,
considering the prospect of increase in land value.
Further it was found out that previous owner of lot 3 constructed and exclusively used the Dock.
There is no objection by the stake holders for accommodating the dock to Lot 3.Affidavits of all stake
holders is annexed.
In this process, the dock just comes out of the lot 3 and falls within the Lot 4. But it is just a
form of License of occupation. Owner of the lot 4 and all stake holders agreed that it was exclusively
used by Lot 3 and is agreement for re-adjustment of boundary between 3 to give access to dock. Give and
take policy was used to give access. Consent of Lot 4 is annexed. So finally laid out boundaries were re
adjusted.

Summary and Conclusions

In summary it is my opinion the best evidence of the boundaries under consideration are shown in
heavy outline on the Plan of Survey forming this Application. All other boundaries are same as shown in
the survey subdivision plan1-1943 of 1945 which are intact. Only for boundary extension to the Wet
Lake the new monuments are placed as shown in my survey plan 15-2016.

5 of 1

6 of 1

Part II
Section 21 of the Public Lands Act provides that the Minister may issue A Licence of
Occupation in or over public lands for any purpose.

A License of Occupation is a legal agreement authorizing the temporary occupation

and use of Crown Land for such a period of time and under such terms and
conditions as the Minister determines to be appropriate. License and any renewals
cannot exceed twenty years in total.
It only conveys a personal right to occupy public lands for an authorized purpose
and includes a statutory right to maintain action against trespass.

License of Occupations are commonly granted for rights-of-way situation

(communication lines, pipelines, and water Intakes, effluent discharge pipes, roads,
etc.) , where flooding rights are required form of tenure to authorize the right to
flood Crown land and for contaminant, leachate, or attenuation zones associated
with waste disposal sites or where MNR does not wish to grant, exclusive
possession.

License of Occupation should be interpreted such that it created a fixed property

line between public and private lands, based on the theoretical shoreline created if
the water level in the lake was raised to stipulated height. This is the legal boundary
of the flooding right.
Since it was of temporary nature due to license of occupation, which is for
limited period of time, title to part of what is now the bed of the lake is vested in the
upland proprietor by virtue of it original patent. The boundary will be same as at
the time of original survey. The present water line is may be designated "controlled
high water level" with the stipulated elevation.
Since flooding rights are easement, the riparian right does not arise. Owing to
the gentle topography, there may be horizontal flooding over the lot that was
riparian at both the time of original survey and the time of the patent.
The upland riparian proprietor may be compensated for the flooding, yet title
to the flooded part could never be lost by the upland owner, since erosion must be
slow and imperceptible to reduce the area of a parcel. Flooding from a controlled
dam is not considered equivalent to erosion, and so the original waters edge would

1 of 1

continue to bind the lot. In other words, title to part of what is now the bed of the
lake is vested in the upland proprietor by virtue of its original patent.

2 of 1