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Riparian Rights

. R v Henderson

In R v Henderson (Div Ct, 2008) the Divisional Court considered interference with riparian rights:
Interference with Riparian Rights

[12] The trial judge dismissed the claim based on interference with riparian rights based on his finding, at p. 4, that “the plaintiff’s right to the natural flow of water is subject to the defendant’s right to maintain and divert water granted to it by the Province by Order-in-Council in the early 1900’s.” He then went on to state, “This is not a case of one riparian owner’s rights being adversely affected by another riparian owner. The defendant in this case is not a riparian owner; it merely manages the waterway.”

[13] The Crown concedes that the trial judge’s latter point (i.e. that the defendant could not be liable under this cause of action because it was not itself a riparian owner), is an error of law. I agree that this is not a correct statement of the law. Although it is often other riparian owners upstream who are the culprits when flooding occurs downsteram, any person can be liable for interference with riparian rights, not only other riparian owners. However, this determination was not essential to the trial judge’s determination with respect to riparian rights, which was based on the Crown’s duty to manage the waterway under the 1906 Order-in-Council.

[14] The trial judge’s conclusion that the plaintiff’s rights to the natural flow of water past his property is subject to the Crown’s duty to manage the Trent-Severn Waterway is correct in law. The Crown has been managing that waterway and controlling the water flow in the Gull River for nearly a century, long before the plaintiff even acquired his cottage property. The trial judge concluded on the facts that Parks Canada took all reasonable steps in the circumstances to manage the release of water after the extraordinary accumulation of water from the recent rainstorms. Where the defendant acted reasonably and properly in its use of the water, the plaintiff’s claim for interference with his riparian rights cannot succeed: Bathurst Lumber Co. v. Harris (1916), 46 N.B.R. 411 (C.A.).

[15] Accordingly, to the extent the trial judge’s dismissal of this claim was based on his findings of fact with respect to the use of the waterway, those findings are supported by the evidence and this court will not interfere. Further, his principal finding of law with respect to the effect of the Order-in-Council is correct. Therefore, his decision with respect to riparian rights stands.


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