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Real Property - Riparian Rights. Tyler v. Eadie
In Tyler v. Eadie (Ont CA, 2023) the Court of Appeal considers a messy riparian rights case:[8] The Eadies argue that the receding of the water’s edge in the case of their property is due to accretion (i.e., the gradual increase in the land area over time due to natural factors), as opposed to avulsion (i.e., a sudden and perceptible change to a water boundary through, for example, natural or engineered flooding). The distinction between accretion and avulsion was set out in Clarke v. Edmonton (City), 1929 CanLII 38 (SCC), [1930] S.C.R. 137, [1929] 4 D.L.R. 1010, at pp. 144, 147. At common law, where there is accretion, the additional land becomes part of the land to which it is attached, whereas if land is added through avulsion, the boundaries of the landowner’s property is unaffected.
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[15] There are certain aspects of the trial judge’s decision which could have been clarified. For example, the trial judge appeared to read Walker as standing for the general proposition that where a boundary line terminates at the water’s edge, the property’s boundary will be the water’s edge at a moment in time and not upon any bank or high-water mark. Walker is more properly understood as a case which emphasizes the need for boundary disputes involving waterfront properties to be determined by a careful examination of the language of the grant and the surveys, plans, surveyors’ field notes, documents and relevant correspondence. In Walker, this led to a determination of the waterfront boundary at the water’s edge, but such an examination could result in boundaries involving high water marks or other water levels depending on the circumstances.
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