Court Ruling on the Right to Portage
The individual defendants owned a farm through
which a river ran. The farm had been granted by the Crown in two parcels in 1821 and 1822,
but the Crown patents did not grant title to the river bed. Prior to the grants, the river
had been used by Indians and explorers for canoeing and trading and it was probably also
used to float logs to sawmills. In 1825, a dam was built across the river at about the
mid-point of the farm. It was still used by the individual defendants to generate
electricity. The defendants erected fences across the river each spring to contain their
cattle and took them down in the fall. The fences proved to be an obstruction to the
plaintiffs, who were recreational canoeists. Further, the canoeists used the defendants'
farm as a portage to get around the dam. They brought an action for a declaration that the
river was navigable, that the defendants did not own the bed of the river, and that they
could not obstruct navigation by means of fencing. The plaintiffs also sought a
declaration that they had a right of portage around the dam over the defendants' farm. The
plaintiffs added the Attorney-General as a party defendant.
Held, the river was navigable and the defendants did not own the bed,
but the plaintiffs did not have a right of portage.
Having regard to the history of the use of the river, it was clearly
navigable. It does not have to be used solely for commercial purposes in order to be
navigable. Nor did it matter that it became unnavigable during the summer months. That
being the case, the defendants did not own the river bed, both because it had not been
granted to their predecessors in title and because s. 1 of the Beds of Navigable Waters
Act, R.S.O. 1980, c. 40, reserves the bed to the Crown. It followed that the defendants
could not obstruct navigation by means of fencing as they had done. However, they could
fence the river to contain their cattle, so long as they provided a means of access to the
river through their property for canoeists, by providing a gate or other device. On the
other hand, the right to use a navigable river does not imply a right of portage over
private property, such as the defendants' farm. In any event, the court could not grant
such an ill-defined way and subject the defendants to possible liability for its use.
Canoe Ontario et al. v. Reed et al.
Indexed as: Canoe Ontario v. Reed
69 O.R. (2d) 494
 O.J. No. 1293
Action No. 20126/87
High Court of Justice
July 31, 1989.
Natural resources ? Water and watercourses ? Navigation ? Canoeists
seeking declaration that river running through property navigable and owners of land not
owners of bed ? Not entitled to obstruct passage ? River always navigable ? Declaration to
be granted ? Canoeists not entitled to declaration of right of portage around dam ? Beds
of Navigable Waters Act, R.S.O. 1980, c. 40, s. 1.
Re Coleman and A.-G. Ont. (1983), 143 D.L.R. (3d) 608, 27 R.P.R. 107,
Iveagh v. Martin,  Q.B. 232; Ne-Bo-Shone Ass'n v. Hogarth, 7 F.
Supp. 885 (1934); affd 81 F. Supp. 70; Lyon v. Fishmongers' Co. (1876), 1 App. Cas. 662;
Marshall v. Ulleswater Steam Navigation Co. (1871), L.R. 7 Q.B. 166, apld
Other cases referred to
R. v. Moss (1896), 26 S.C.R. 322; Rainy River Navigation Co. v. Watrous
Island Boom Co. (1914), 6 O.W.N. 537; Stephens v. MacMillan,  O.R. 133,  2
D.L.R. 135; A.-G. Que. v. Fraser (1906), 37 S.C.R. 577; affd  A.C. 489 sub nom.
Wyatt v. A.-G. Que.; Fort George Lumber Co. v. Grand Trunk Pacific R. Co. (1915), 24
D.L.R. 527, 32 W.L.R. 309; Gordon v. Hall,  O.W.N. 417, 16 D.L.R. (2d) 379; Welsh v.
Marantette (1983), 44 O.R. (2d) 137, 3 D.L.R. (4th) 401, 27 C.C.L.T. 113, 30 R.P.R. 111;
affd 52 O.R. (2d) 37, 21 D.L.R. (4th) 276, 33 C.C.L.T., 289, 36 R.P.R. 236; leave to
appeal to S.C.C. refused 54 O.R. (2d) 800n, 29 D.L.R. (4th) 160n, 65 N.R. 159n; A.G.
Quebec v. Mireault (1987), 46 R.P.R. 95; U.S.A. v. State of Utah, 283 U.S. 64 (1931),
Harrison v. Fite, 148 F. 781 (1906); Gann v. Free Fishers of Whitsable (1865), 11 H.L.C.
192, 11 E.R. 1305; R. v. Robertson (1882), 6 S.C.R. 52; McNeil v. Jones (1894), 26 N.S.R.
299; Rice Lake Fir Co. Ltd. v. McAllister (1925), 56 O.L.R. 440,  2 D.L.R. 506; Wood
v. Esson (1883), 9 S.C.R. 239
Statutes referred to
Beds of Navigable Waters Act, R.S.O. 1980, c. 40, s. 1
Public Lands Act, R.S.O. 1980, c. 413, s. 62(4)
ACTION for a declaration that a river was a navigable waterway, that the
defendants did not own the bed and could not obstruct navigation, and that the plaintiffs
owned a right of portage over the defendants' lands.
Robert Hickman, for plaintiffs.
E.W. Greenslade, for defendants.
S. Mason, for Attorney-General of Ontario.
I The issues
In this case, the interests of the plaintiffs ("the
canoeists") collide with those of the defendants, Julian Reed and Laurie Reed
("the Reeds"). The collision occurs along the stretch of the Credit River which
runs through the property owned by the Reeds ("the property"). There are three
(i) Do the canoeists have any right to canoe along the part of the river which passes
through the Reeds' property?
(ii) If the canoeists have that right, do they have the right to demand the removal of the
temporary barriers constructed across the river by the Reeds?
(iii) If the canoeists have that right, do they have the right to enter upon the Reeds'
property in order to portage around a dam built in 1825 and presently used and owned by
I must decide to what extent, if at all, the Reeds' interest in
maintaining the privacy of their home, and the effective operation of their farm must
yield to the interests of those who wish the satisfaction and pleasure of canoeing along
this scenic part of the river.
II The scene
The Reeds own a 100-acre farm just west of the Town of Norval, Ontario.
Norval is situated east of Georgetown, Ontario, on Highway No. 7. The property on which
the farm is located was originally sold by the Crown in two parts: the first in 1821, and
the second in 1822. For present purposes, the grants can be taken as being identical.
Robert Noble, Mr. Reed's maternal great-grandfather, purchased the property in 1868 and
operated the farm and a mill for many years. The property fell out of the family's
ownership for several years but was subsequently re-acquired by Mr. Reed and his mother.
Mr. Reed has lived on the property all of his life and has owned all or part of the
property for over 25 years.
The river travels through the property in a north to south direction.
The exact course of the river varies somewhat from year to year. The property is located
on both sides of the river for a distance of about one and one-quarter miles. Mr. Reed
grazes his cattle on both sides of the river and from time to time, it is necessary for
him to take his cattle across the river.
In about 1825 a dam was built across the river at about the mid-point of
the property. Just upstream from the dam a pond developed. That pond varies in size, shape
and depth from year to year and from season to season. On occasion, parts of the pond area
will be dry. A bridge crosses the river on the property south of the dam. Every spring,
Mr. Reed strings barbed wire fences across the river in order to keep his cattle from
wandering up or down the river when crossing the river. One of the barbed wire fences runs
across the river just north of the bridge but south of the dam. The other fence is strung
across the most northerly boundary of the property. These fences are removed every fall
and replaced in the spring. Both fences obstruct anyone attempting to canoe along this
part of the river. In addition, canoeists wishing to travel the entire length of the river
which passes through the property must portage around the dam. The most convenient portage
takes them across the property. The Reeds consider those who take thisportage to be
trespassers and have posted appropriate signs.
III The parties and these proceedings
Canoe Ontario is a non-profit corporation composed of a number of groups
with a mutual interest in canoeing in Ontario. Mr. Greenacre is a canoeist who has canoed
on the part of the river which passes through the Reed property, and wishes to do so in
the future. The canoeists' standing has not been challenged by the Reeds.
The Reeds own and operate the farm described above. In opposing the
canoeists' application, the Reeds are not motivated by petty selfishness. They live on
this property and it is their firm belief that some of those individuals who choose to
recreate along the river do not pay proper heed to the needs of those who live and work on
the property adjoining the river. I accept Mr. Reed's evidence that his fences have been
damaged, garbage has been left on his property, and on occasion, his family has been
verbally abused by a small minority of those who use the river for recreational purposes.
I am completely satisfied that the Reeds take the position that they do in a genuine
effort to preserve the use and enjoyment of their home and farm.
I must also stress that there is no suggestion that Mr. Greenacre or
anyone affiliated with Canoe Ontario has engaged in the discourteous and disorderly
conduct described by Mr. Reed.
The Attorney-General was joined as a defendant because of his potential
interest in the issues to be determined. He has taken no position in the litigation save
to support the canoeists' contention with respect to the approach to be taken in defining
the phrase "navigable waterway".
On the trial of the issue before me, the parties adduced evidence in the
form of a joint document brief and certain videotapes. It was agreed that I could receive
all of this material as evidence. It was also agreed that, with certain specified
exceptions, the facts referred to in the material should be accepted by me as proved. In
addition to the document brief and the videotapes, several affidavits were filed by the
canoeists with the consent of the Reeds. Mr. Reed also testified.
IV The position of the parties
The Reeds contend that the part of the river which runs through their
property is not a navigable waterway and that they own the riverbed by virtue of the terms
of the original Crown grants. They say they are entitled to exercise control over access
to that part of the river, and to construct fences, complete with fence posts sunk into
the riverbed, across the river.
The canoeists assert that they are entitled to canoe along the river
because it is a navigable waterway and is not subject to any proprietary interest on the
part of the Reeds. The canoeists contend that the Reeds have improperly obstructed their
right to navigate the river by the erection of the fences. They also argue that as the
Reeds choose to keep and use the dam which is situated across the river, they are
obligated to allow the canoeists reasonable access to their property so as to permit them
to portage around the dam.
V Is the river a navigable waterway?
This case turns on whether the part of the river which passes through
the Reeds' property is a "navigable waterway". The Reeds only have a proprietary
interest over the river and its bed if the river is not a navigable waterway. This is so
for two reasons. First, the Crown grants, which are the root of the Reeds' proprietary
claim, reserve to the Crown all rights in all navigable waterways which pass within the
lands. If the part of the river which passes through the Reeds' property is navigable,
then title to the riverbed did not flow with the Crown grants. Secondly, s. 1 of the Beds
of Navigable Waters Act, R.S.O. 1980, c. 40 provides:
1. Where land that borders on a navigable body of water or stream, or on
which the whole or a part of a navigable body of water or stream is situate, or through
which a navigable body of water or stream flows, has been heretofore or is hereafter
granted by the Crown, it shall be deemed, in the absence of an express grant of it, that
the bed of such body of water was not intended to pass and did not pass to the grantee.
Subject to certain exceptions which are not applicable here, the Act
applies to land which was granted prior to its enactment. If the river is navigable, then
this Act provides that the Reeds have no proprietary interest in the riverbed since the
grants did not expressly grant the riverbed to their predecessors.
To determine whether the part of the river which passes through the
Reeds' property is a navigable waterway, I must first review the historical information
provided to me. By the latter part of the eighteenth century, the river served as a
meeting ground for French traders and local Indians. Both travelled at least part of the
river for trading purposes. By the turn of the nineteenth century, most of the river was
reserved for the use of the Mississauga Indians. The land demands caused by immigration
from the United States following the War of 1812 led to the surveying of lands adjoining
the river, and to settlement along the river. In 1820, the Mississauga Indians gave up
their rights to exclusive use of the river. During the next 30 years, the river was a
focal point for a variety of commercial activities. Several dams were built to supply
power for the flour mills, saw mills, and other enterprises which thrived along the river.
There is some indication that during the first part of the nineteenth
century, logs for the saw mills were floated down various parts of the river. Apart from
the logging business, it does not appear that the river was used for commercial traffic
during this period of significant commercial development. The early proliferation of dams
along the river, combined with the quick development of an effective system of roads,
precluded the use of the river as a means of commercial transportation.
By the early part of the twentieth century, the commercial activity
along the river had subsided. Gradually the dams fell into desuetude. Today, only the dam
on the Reeds' property, which is used to generate electricity for the Reeds' personal
needs, serves any functional purpose. All but one or two of the other dams have been
removed either by nature of by man.
Apart from commercial activity, the river has been the focal point of
various recreational pursuits over the years. At least two references to the use of the
river for recreational canoeing are found in the material provided to me. In the brochure
entitled "The History of the Credit River", the author writes:
Since the 1920's the Credit has been used extensively for recreational purposes. Canoeists
have used the river in spring and summer months and snowmobilers have used it during the
The brochure does not indicate what part of the river is being referred
to in the extract quoted above.
A second brochure entitled "The Credit: Canoeing in Suburbia"
contains the following passage:
For canoeists, the Credit is a springtime river. In the first flush of mouth water, its
rapids and swifts can put up standing waves that will quicken the pulse of even an
experienced white water paddler. In late March, white water kayak enthusiasts flock to the
river at Streetsville for competition.
. . . . .
By mid-April, the Credit has settled down to a more leisurely pace with enough ripples to
provide good training for beginning river Canoeists. The most serious danger is the
chilling effect of icy spring water. By mid-May, as the waters warm, the Credit is reduced
to bouldery shallows and the canoeing season is virtually over. Summer trips are possible
on parts of the river but be prepared to wade occasionally.
This brochure contains a detailed description of a canoe trip along the
entire length of the Credit River including the part which passes through the Reeds'
property. This author obviously considers the entire river suitable for canoeing during
part of the year.
The affidavits filed by the canoeists attest to the suitability of the
river for canoeing. Most of the affiants have canoed along the part of the river which
passes through the Reeds' property at some point during the canoeing season. Most of them
indicated that this part of the river was very suitable for canoeing in spring; while
others indicated that it was suitable in the spring and fall; and a few indicated that it
was suitable during the entire year.
Considering the historical information, the affidavits, the evidence of
Mr. Reed, and the technical data concerning the rate of water flow and similar matters, I
conclude that the part of the river which passes through the property provides enjoyable
canoeing from late March through most of May; the possibility of limited and mostly
unsatisfactory canoeing from June through September; and for the particularly hardy, some
canoeing in October and November.
In summary, the material provided to me shows that the river has had
various uses at various times. It was used as a mode of transportation in the latter part
of the eighteenth century and in the early part of the nineteenth century. It was, for a
brief time, a log floating route. By 1835, the river had no value as a commercial highway.
By the early part of this century, it was used extensively, although seasonally, by
recreational canoeists. They continue to use the river to this day.
I must now turn to the applicable law. The legal meaning of the phrase
"navigable waterway" received considerable judicial attention in the late
nineteenth century and in the early part of this century. Those authorities are carefully
considered and analyzed in the scholarly judgment of Henry J. in Re Coleman and A.-G. Ont.
(1983), 143 D.L.R. (3d) 608 at pp. 613-15, 27 R.P.R. 107 (Ont. H.C.J.). I have found his
judgment most helpful as it deals with a waterway (the Bronte River) which is similar in
many ways to the Credit River. I accept the following conclusions drawn by Henry J. from
the earlier authorities:
(i) Navigability in law requires that the waterway be navigable in fact. It must be
capable in its natural state of being traversed by large or small craft of some sort.
(ii) Navigable also means floatable in the sense that the river or stream is used or is
capable of use for floating logs or log rafts or booms.
(iii) A river may be navigable over part of its course and not navigable over other parts.
(iv) To be navigable, a river need not in fact be used for navigation so long as it is
realistically capable of being so used.
(v) A river is not navigable if it is used only for private purposes or if it is used for
purposes which do not require transportation along the river (e.g., fishing).
(vi) Navigation need not be continuous but may fluctuate with the seasons.
(vii) Where a proprietary interest asserted depends on a Crown grant, navigability is
initially to be determined as at the date of the Crown grants (in this case, 1821 and
If a waterway is held to be navigable then, absent valid legislative
action to the contrary, the ownership of the riverbed does not rest in a private
individual but in the Crown, and the public is entitled to travel the waterway: R. v. Moss
(1896), 26 S.C.R. 322 at pp. 331-4. The concept of navigability is premised on the notion
that certain waterways are akin to public highways and are viewed as being within the
public domain: Rainy River Navigation Co. v. Watrous Island Boom Co. (1914), 6 O.W.N. 537
(Ont. S.C. App.Div.); Stephens v. MacMillan,  O.R. 133 at p. 143,  2 D.L.R.
135 (H.C.J.). In a young country like Canada, where river routes are numerous, and were of
central importance to the exploration, settlement, and commercial development of the
country, it is not surprising that claims of public access to these rivers have fallen on
sympathetic judicial ears: e.g., A.-G. Que. v. Fraser (1906), 37 S.C.R. 577 at pp. 596-8;
affirmed  A.C. 489 sub nom. Wyatt v. A.-G. Que; Fort George Lumber Co. v. Grand
Trunk Pacific R. Co. (1915), 24
D.L.R. 527 at pp. 529-31, 32 W.L.R. 309 (B.C.S.C.). In essence, the test for navigability
developed in Canada is one of public utility. If a waterway has real or potential
practical value to the public as a means of travel or transport from one point of public
access to another point of public access, the waterway is considered navigable: Gordon v.
Hall,  O.W.N. 417, 16 D.L.R. (2d) 379 at pp. 382-3 (H.C.J.); Welsh v. Marantette
(1983), 44 O.R. (2d) 137, 3 D.L.R. (4th) 401, 27 C.C.L.T. 113 (H.C.J.); Re Coleman and
A.-G. Ont., supra, at pp. 617-18.
Many authorities, particularly those emanating from the province of
Quebec (A.-G. Que. v. Mireault (1987), 46 R.P.R. 95 (Que. C.A.)); and the United States
(U.S.A. v. State of Utah, 283 U.S. 64 (1931), at p. 76); limit the public utility test for
navigability to situations where the transport is in the nature of commerce. It is not
surprising that commercial usefulness has played a central role in determining the public
utility of a waterway, since at one time water transport was almost entirely commercially
motivated. I agree with Henry J. in Re Coleman and A.-G. Ont., supra, at p. 622, that
utility is not a sine qua non to navigability, although evidence of commercial use will be
determinative of the question. If the purpose underlying the recognition of a public
interest in certain waterways is analogous to that which recognizes the public interest in
certain highways, then that purpose is not served by limiting navigability to cases
involving commercial usage. A public highway may serve many public purposes other than a
purely commercial one. For example, it may provide a valuable social and communication
link between communities. Rivers on which people can readily travel can potentially
provide the same link.
A distinction between public commercial use and public non-commercial
use is also unrealistic. Many non-commercial uses can readily be turned into commercial
endeavours. This case provides an example. If several individuals, for recreational
purposes, canoe down the river, then their purpose is entirely non-commerical; however, if
one individual, perhaps more experienced than the others, purports to operate a tour down
the river and to charge individuals for canoeing the river with him, then the exact same
trip becomes a commercial endeavour. Navigability should not depend on such personal
considerations. Navigability should depend on public utility. If the waterway serves, or
is capable of serving, a legitimate public interest in that it is, or can be, regularly
and profitably used by the public for some socially beneficial activity, then, assuming
the waterway runs from one point of public access to another point of public access, it
must be regarded as navigable and as within the public domain.
I do not intend to hold that any body of water which, at some point for
some brief instant, can be used by some segment of the public, for some legitimate public
purpose is thereby a navigable or public waterway. If, however, the use is regular and has
practical value, then seasonal limitations, or limits on the type or nature of the public
utility do not remove that waterway from the public domain: Harrison v. Fite, 148 F. 781
(C.A. 8th Cir., 1906), at pp. 783-4; Ne-Bo-Shone Ass'n v. Hogarth 7 F. Supp. 885 (Dist.
Ct. 1934), at pp. 889-90; affirmed in result 81 F. Supp. 70 (C.A. 6th Cir.).
On the evidence before me, the part of the river which runs through the
Reeds' property was a public or navigable waterway as of 1822. Prior to that date, it was
used for commercial traffic and logs were floated down the river. There is nothing in the
evidence before me to suggest that it could not be used for commercial purposes in 1822.
Whether it was in fact so used is not determinative. I am also satisfied that the river
could have been used for legitimate recreational purposes as of 1822. That it was not so
used until several decades later does not detract from the finding that it could have been
so used. The river had public utility as of 1822. That public character remains to this
day although the particular use to which the public puts the river has changed from
commercial use prior to 1822 to a purely recreational use in the present day. Since the
Crown grant excluded title to navigable waterways, the Reeds did not acquire title to any
part of the river which
runs through that property, and they have no proprietary interest in the riverbed. The
application of s. 1 of the Beds of Navigable Waterways Act effects the same result.
The plaintiffs are entitled to a declaration that the part of the river
which runs through the Reed property is a navigable and public waterway and that the Reeds
have no proprietary interest in the riverbed. It follows from this finding that the Reeds
have no right to construct or maintain fences on the river which deny public access to the
part of the river which runs through their property. The plaintiffs are entitled to a
declaration to that effect. Having made that finding, I hasten to add that this does not
prevent the Reeds from erecting structures designed to keep their cattle on course when
crossing the river. My finding only precludes the erection of fences or similar structures
on the river in a way which effectively denies public passage along the part of the river.
It would not seem an insurmountable task to devise a structure which permitted canoeists
to gain entry to the part of the river which runs through the property while at the same
time limiting the movement of the cattle as they passed across the river. A well-marked
fence with an appropriate gate or gates seems a possibility.
VI Do the canoeists have a right of portage across the Reeds' property?
I have held that the canoeists and other members of the public have the
right to travel by boat along the river as it passes through the Reeds' property. Their
passage is blocked by a dam constructed in 1825 and presently owned and operated by the
Reeds. The canoeists seek an order declaring that they are entitled to go ashore onto the
Reeds' property in order to pass around the dam. The canoeists do not suggest any specific
route but presumably would be content with an order permitting them to enter upon the
Reeds' property to the extent that it is necessary to go ashore on one side of the dam,
pass around the dam and re-enter the river. The canoeists maintain that without a right to
travel onto the Reeds' property to portage around the dam, they are effectively barred
from using that part of the river.
The material provided to me does describe portage routes around the dam
which do not involve going onto the Reeds' property; however, these are long and somewhat
onerous. If these portage routes are followed, the canoeists also lose the opportunity to
paddle along the river for a distance both above and below the dam.
It is clear that the order sought by the canoeists will constitute a
significant intrusion on the Reeds' property rights. The order would grant access to the
Reeds' property to an unlimited number of persons who could use the route at any time.
Indeed, the order would not necessarily create one route, but would presumably leave it
open to individual canoeists to determine what portage route was reasonable. The
appropriate route may vary with the season, the rainfall, or the expertise and the energy
of the individual canoeist. It could also vary with the type of craft being used. Nor does
the order requested contemplate any compensation to the Reeds for this substantial
interference with their property rights. It also leaves open the question of any
responsibility or potential liability which may fall upon the Reeds if I declare that
their property is subject to the right of way sought by the canoeists. The order requested
would create a nebulous easement over the property which would doubtless lead to
There is no statutory provision which the canoeists can call in aid to
support their contention. In the course of argument, reference was made to s. 62(4) of the
Public Lands Act, R.S.O. 1980, c. 413. This section has no application since the property
was not a "public land over which a portage had existed" prior to the sale of
the land to the original owners.
There is no case-law directly on point which supports this part of the
canoeists' claim. The canoeists have not attempted to mount an action in nuisance as was
the case in many of the authorities relied on by them.
As I understand the canoeists' argument, they claim a right to portage
across the Reeds' property exists because it is a necessary part of the right to navigate
along the river and that without a right of portage, the right of passage or navigation
cannot be fully enjoyed. They also argue that as the Reeds enjoy the benefit of the dam,
it is just that they be required to surrender their property rights to the extent that it
is necessary to allow canoeists to go around the dam.
Their argument amounts to a contention that the public right of
navigation carries with it a right to enter upon private property to avoid obstructions to
navigation even where the obstruction is not unlawful, and is not the responsibility of
the property owner whose land will be entered and crossed. Certain public rights have been
held to flow from or to exist with the public right of navigation. The right to anchor, to
go ashore in an emergency, and perhaps the right to fish are examples of rights which have
been found to co-exist with the right to travel along a navigable waterway: Gann v. Free
Fishers of Whitsable (1865), 11 H.L.C. 192 at p. 207, 11 E.R. 1305 (H.L.); Coulson and
Forbes on Waters and Land Drainage, 6th ed. (1952), pp. 68-71; Ne-Bo-Shone Ass'n v.
Hogarth, supra, at p. 887; but see R. v. Robertson (1882), 6 S.C.R. 52 at. pp. 114-15.
None present the potential for intrusion on the rights of a property owner which the right
claimed by the
Other cases recognize a limited right resting in individuals to access
and cross another's property situated on a navigable waterway. These include cases where
the property owner has consented to the access, or where he has created an obstruction
which denies another riparian landowner access to the waterway, or where the claimant has
acquired the right to access and cross another's property by prescription: McNeil v. Jones
(1894), 26 N.S.R. 299 at pp. 303-4 (N.S.C.A.); Rice Lake Fir Co. Ltd. v. McAllister
(1925), 56 O.L.R. 440 at p. 449,  2 D.L.R. 506 (C.A.); Marshall v. Ulleswater Steam
Navigation Co. (1871), L.R. 7 Q.B. 166; Wood v. Esson (1883), 9 S.C.R. 239 at pp. 252-4;
Iveagh v. Martin,  Q.B. 232. These are cases of rights acquired by specific
individuals. None produce the general right of way argued for in this case.
These same cases by implication deny any general right to enter the
property of another in every case where entry is necessary to facilitate one's right of
navigation. In Iveagh v. Martin, supra, Paull J. considered the rights of certain
landowners whose passage to a navigable river was blocked by a quay which had been
constructed on the navigable waterway. His Lordship held at pp. 273-4:
These being the rights of those who navigate vessels, one next has to
consider the position if the owner of the foreshore erects on the foreshore and therefore
at a place where there would otherwise be navigable water at certain states of the tide, a
permanent building such as a quay. It seems to me that the rights of navigation which the
public possess result in their having two rights in relation to such a quay. In the first
place, in a proper case they may have the right in an action properly constituted to
obtain a mandatory injunction ordering the owner of the quay to remove the quay on the
ground that it seriously interferes with the rights of navigation. ... With regard to the
second right, one has, I think, to consider the land which lies beyond the quay. A part of
the rights of navigation is, in my judgment, the right to land on or embark from any part
of the land adjoining the foreshore but only if there is a right to go upon that land. If
the quay on the foreshore obstructs that being done, then there is the right to go upon
the quay onpayment of a reasonable toll in order to reach that land or reach the vessel.
In this passage, Paull J. premises the right to access another's
property on an individual's private property rights and not on any implied right flowing
from the public right of navigation.
In Ne-Bo-Shone Ass'n v. Hogarth, supra, the trial judge, quoting from an
earlier decision of the Supreme Court of Michigan, said at. p. 887:
Pine River is navigable. In its waters, the people have the common right of fishing. The
plaintiff, though owner of the soil, has no greater fishing rights than any other citizen.
The rights are equal and correlative. So long as water flows and fish swim in Pine River,
the people may fish at their pleasure in any part of the stream, subject only to the
restraints and regulations imposed by the state. ... Of course in exercising this right,
people cannot go upon the uplands of riparian owners in order to gain access to the water.
If they do that, they are guilty of trespass.
In Lyon v. Fishmongers' Co. (1876), 1 App. Cas. 662 at p. 671, Lord
Cairns clearly drew the distinction between rights which rest with the public as a result
of the navigability of a waterway and rights which may rest with an individual landowner:
Unquestionably, the owner of a wharf on the river bank has, like every
other subject of the realm, the right of navigating the river as one of the public. This,
however, is not a right coming to him qua owner or occupier of any lands on the bank, nor
is it a right which, per se, he enjoys in a manner different from any member of the
public. But when this right of navigation is connected with an exclusive access to and
from a particular wharf, it assumes a very different character. It ceases to be a right
held in common with the rest of the public, for other members of the public have no access
to or from the river at the particular place; and it becomes a form of enjoyment of the
land and of the river in connection with the land the disturbance of which may be
vindicated in damages by an action or restrained by an injunction.
Similarly, in Marshall v. Ulleswater Steam Navigation Co.,
supra, Blackburn J. said at p. 172:
It is well-established law, that where there is a public highway the owners of the land
adjoining thereto have a right to go upon the highway from any spot on their own land.
They cannot, of course, pass over the soil of another without his leave...
I conclude that the public right of passage does not carry with it a
public right of portage across another's property. The public right permits passage along
the river to the extent that passage is possible. If a natural obstruction temporarily or
permanently prevents passage, the right of public passage remains although it may not be
exercisable. Frustration of the ability to pass along the waterway cannot give rise to a
separate and distinct right to go onto the property of a private landowner. One might well
respond that the obstruction in this case is not a natural one but is a man-made one. It
is, but I have no evidence before me from which I could conclude that the dam was
unlawfully constructed, constitutes a nuisance, or that the Reeds are in contravention of
any law by operating the dam. Indeed, as I understand the canoeists' position, they do not
claim any right to have the dam removed; nor do they suggest that the Reeds' maintenance
and use of the dam is actionable or unlawful. The silence of the Attorney-General on this
aspect of the case is also instructive. Given the record before me and the position of the
parties, I see no reason for treating the dam any differently than I would a rapid or a
beaver dam. Absent a successful attack on the Reeds' right to maintain and operate the
dam, the canoeists' argument comes down to a contention that the Reeds should be made to
sacrifice part of their property rights so the canoeists can more fully enjoy their public
right of navigation. I can see no reason for such court-imposed largesse.
I decline to make any order declaring a right of portage across the
A declaration in terms consistent with these reasons may issue. Counsel
did not address the question of costs. In light of the result, I propose to make no order
as to costs, subject to any submissions counsel may wish to make before taking out the
Click here to get back to Erhard's Home Page
Click here to get to Paddling Legal Issues Page