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Andriet v. County of Strathcona n. 20.

País/Territorio
Canadá
Tipo de la corte
Nacional - corte superior
Fecha
Ene 25, 2008
Fuente
UNEP, InforMEA
Nombre del tribunal
Court of Appeal of Alberta
Sede de la corte
Edmonton
Juez
O’Brien
Picard
Watson.
Número de referencia
2008 ABCA 27
Idioma
Inglés
Materia
Agua, Tierra y suelos
Palabra clave
Terrenos privados Bosques privados Propiedad Derechos de propiedad
Resumen
This case began as an application by a number of owners of lots which had in the past abutted the abutted the shore of Grandview Bay on Cooking Lake, just east of Edmonton, as the waters of Cooking Lake had receded significantly. The lot owners all applied to the Registrar of Land Titles to have the former lake bed accreted to their lots, thereby preserving their access to the lake and their other riparian rights. While the trial judge denied the lot owners riparian rights and awarded the additional land to the Crown, the Court of Appeal reversed that decision. It held that the former lake bed had accreted to the lot owners and that each was entitled to their proportionate share of the current shoreline. Each lot owner therefore had their access to the lake and the status of their lots as water frontage re-established. The doctrine of accretion states that the size of the parcel of land owned by riparian owners is increased by the gradual, imperceptible retreat of the water abutting that parcel of land. But the Dominion passed the North-west Irrigation Act of 1894 (to assert Crown ownership of water resources and of beds and shores, and to create a water rights system to replace riparian rights. However, notwithstanding this legislation, it became clear that at least some common law riparian rights persisted. The Torrens land titles system was made possible by the accuracy of the original surveys to guarantee that prospective purchasers, mortgagees and other interested parties may rely on the tile to accurately describe property boundaries. The doctrine of accretion, however, may render natural boundaries set out in land titles inaccurate, disturbing, if not destroying, the simplicity and certainty of the Torrens system. The trial court found no way to rationalize the situation and therefore refused to apply the doctrine of accretion and the previous Supreme Court of Canada and Alberta Court of Appeal decisions which did so. The Court of Appeal allowed the appeal and found that the actual shore of Cooking Lake was the natural boundary of the lots, based on its interpretation of the title documents. In this case, the court did not draw the lines across the accretion or order a particular method of division: instead, the court directed the parties to work out the positioning of boundaries themselves, keeping in mind the basic equitable principles, and to jointly retain and instruct a surveyor to prepare the necessary registerable survey plan. The court based its decision partially on the principle that a riparian owner continues to have a right of access to the water in the event of slow and imperceptible aceretion. In doing so, the Court of Appeal brought the doctrine of accretion back into conformity with its earlier decisions including those of the Supreme Court of Canada.
Texto completo
COU-156854.pdf
Página web
www2.albertacourts.ab.ca