MacTaggart, Bruce I.

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 3, Number 3 (October 1965) Article 5Constitutional Law: Simpson Land Co. Ltd. v.Black Contractors Ltd.Bruce I. MacTaggartFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljCommentaryThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMacTaggart, Bruce I.. "Constitutional Law: Simpson Land Co. Ltd. v. Black Contractors Ltd.." Osgoode Hall Law Journal 3.3 (1965) :461-465.http://digitalcommons.osgoode.yorku.ca/ohlj/vol3/iss3/5Supreme Court Reviewis all that it is! If the traditional test of legitimacy, birth in lawfulwedlock, has been watered down to its present state, then it mightprofitably be forgotten altogether.The only conscionable excuse for maintaining the present anoma-lous situation is that the stigma of bastardy is some form of deterrentto the prospective father. The fallacy of this is readily apparent - itis very unlikely that any such thought would enter his mind at the onlytime that the deterrent could be operative. It might also be defendedfrom the standpoint of any legitimate children of the testator. But it isillogical that such children should be allowed the benefit of a state ofaffairs with which they had absolutely nothing to do. The time istherefore ripe to complete the spring-cleaning of the law on thismatter with appropriate legislation.CONSTITUTIONAL LAWSimpson Land Co. Ltd. v. Black Contractors Ltd.BRUCE I. MACTAGGART 'NAVIGABLE WATERS - PRIVATE AND PUBLIC RIGHTS IN MAN-MADEINLETS.This decision provides an analysis of the definition of "navigablewater". The facts are as follows: The Crown patent for the lot involvedreserved to the Crown the right to enjoy any navigable water whichmight be found on, or flowing through, the lot in question. The issueraised was whether the owner, after removing sand from his lot insuch a manner as to create a bay, could assert private rights over thewaters in such bay so as to prevent others from sailing across it.The Supreme Court of Canada, affirming the trial judge and theOntario Court of Appeal, held that the owner of the lot could notprevent anyone from sailing across the bay, the waters being properlycharacterized as "navigable," even though he owned the land nowforming the bottom of the bay.In detail the facts are as follows: The defendants, while in thecourse of removing sand from Lot 3 of Grenadier Island, of whichthey eventually became the owners, caused a bay to be formed in thislot about 600 feet in horizontal depth and 545 feet in width at itsmouth. The defendants likewise conducted similar operations on theadjacent lot, Lot 4, creating another bay which opened into the baycreated in Lot 3. When the defendants' lease to remove sand from Lot4 terminated, the plaintiff took up the lease to carry on similar sandremoving operations. The plaintiff asked permission from the defen-*Mr. MacTaggart is a second year student at Osgoode Hall Law School.1965]OSGOODE HALL LAW JOURNALdants to cross the bay created in Lot 3 to gain access to Lot 4. Thedefendants refused. The plaintiff attempted to find another entranceinto the bay on Lot 4, but found no other possibility that was economi-cally feasible. The plaintiff, despite the defendants' refusal, commencedsailing across the bay of Lot 3, into the bay of Lot 4 with their sandremoving equipment. To prevent this, the defendants put obstructionsin the bay of Lot 3, preventing the plaintiff from navigating across thebay. The plaintiff sued for an injunction for the removal of the obstruc-tions. The injunction was granted by the Court.In reaching its conclusions the Supreme Court followed the caseof Cram v. Ryan' and distinguished the case of Sim E. Bak et al. v.Ang Yong Huat.2The facts in Cram v. Ryan are similar to Simpson Sand Co. v.Black Douglas Contractors Ltd.3 In Cram v. Ryan the defendants hada licence to remove sand from lands situated along the St. Mary'sRiver, and in doing so created a bay in which the plaintiff mooredhis boarding scow. The defendants proceeded to operate their sandremoving equipment and while doing so ejected sparks which ignitedand destroyed the plaintiff's scow. It was held that the plaintiff'sscow, while in the bay created by the defendants, was not a trespassersince it was moored in public navigable waters and not private waters.In the case of public navigable waters there is a right of access to theshore. Armour, C.J. stated that when the shore line was moved backfrom its natural position, the water so let in was as much publicijuris as an other part of the water of the river, and the removal ofthe shore line back from the natural line did not take away the freeaccess to the shore as newly established. 4Perhaps one important similarity between Cram v. Ryan and.Simpson Sand Co. v. Black Douglas Contractors Ltd. was that the,deeds of the lands from which the sand was removed had identicalreservations to the Crown. The Crown had the right to enjoy anynavigable waters which may be found on, or under, or flowing through,,or upon the lands granted.5The case upon which the appeal to the Supreme Court was based,-and which the Court chose to distinguish, was Sim E. Bak v. AngYong Huat. The waters in question there were the waters of theKalang River of India, a tidal river which was described by LordWrenbury as more like a mango swamp than a public navigable1 (1894), 24 O.R. 500; Aff'd 25 O.R. 524.2 [1923] A.C. 429.3 [1964] S.C.R. 333.4 Supra, footnote 1, 25 O.R. at 528.5 The deeds contained reservations similar to the following:(a) reserving free access to the shore of the lands hereby granted forall vessels, boats and persons.(b) reserving, nevertheless unto us, our heirs and successors, the freeuses, pasage, and enjoyment of, in, over, and upon all navigablewaters that shall or may hereafter be found on or under, or beflowing through, or upon, any part of the said parcel or tract ofland hereby granted as aforesaid.(VOL. 3Supreme Court Reviewriver.6 In Sim E. Bak both the plaintiff and defendant owned landsin which holes had been dug for the purpose of removing brick clay.A bridge had been constructed about thirty years before via whichwater could be admitted onto the lands to fill these holes, thus creatingmany small ponds and lagoons. The defendant cut through the bankof the river so that tidal water could obtain access to a pond on hisland, his purpose being to allow fish to come up with the tide, flowinto the pond and there be intercepted by a sluice which he haderected. To prevent the fish from reaching the defendant's land theplaintiff erected a fence on his property extending across the mouthof the defendant's sluice. As a result the fish did not reach the defen-dant's pond. The defendant tore down the fence, but in the ensuingaction the plaintiff successfully asserted his right to build this fenceon his land.The Privy Council held that the waters in question were not navi-gable despite the fact that boats within limited size could and didpass through the bridge and up the waterway to bring brick clay outfrom the lands, and despite the fact that tidal waters did reach theland. The court indicated that the flowing of the tide is strong primafacie evidence of the existence of a public navigable right, but whetherthere was such a right depended upon the situation and the natureof the channel. Not every ditch or catchment which is reached by thetide forms part of navigable waters, even though they be sufficient toadmit the passage of a boat. The question is one of fact for the juryto decide in light of all the circumstances.7 Because the waters werecharacterized as non-navigable, the defendant could not object toany erection of a fence made by the plaintiff on his own land, notwith-standing that the lands were from time to time covered by tidal waters.The Supreme Court in Simpson distinguished Sim E. Bak on thebasis that there the plaintiff created the channels for a specific pur-pose,8 i.e., for the purpose of creating a fish catchment, whereas in bothCram v. Ryan and in Simpson Land Co. v. Black Contractors thewater was on the land only as the incidental result of a sand removaloperation. The Court felt that the letting of water on to one's landartificially for a specific purpose was quite distinguishable from themere broadening of the St. Mary's or St. Lawrence Rivers by a sandremoval operation on the banks.9It is significant to note that the Supreme Court played down thefactor of commercial utilityl0 in the test for navigability, althoughpaying it lip service.n6 Supra, footnote 2 at 432.7 Id. at 433.8 Supra, footnote 3 at 337.9 The St. Lawrence and the Great Lake chain are recognized as navigablewaters (Dixon v. Snetsinger (1873), 23 U.C.C.P. 235).10 A.G. Que. v. Fraser (1906), 37 S.C.R. 577; Keewatin Power Co. v. Townof Kenora (1907), 13 O.L.R. 237; Rotte v. Booth (1886), 11 O.R. 491; Gordonv. HaUl, 16 D.L.R. (2d) 379.11 Supra, footnote 3 at 440.1965]OSGOODE HALL LAW JOURNALIt is worth while to consider the past history of the test ofnavigability and its connection with ownership of the solum below suchwaters. At common law the test for navigability originally was basedon the ebb and flow of the tide. The beds of all such navigable waterswere vested prima facie in the Crown for the benefit of the subject.The beds of all other rivers vested in the riparian owners ad mediumfilum aquae, and this right included fishing rights.In Canada, the tidal/non-tidal test for navigable waters and henceownership of the solum was not imported into our law because of itsinappropriateness to our situation.12 The test of navigability, whichin turn determined ownership of the solum, became a question of fact.13Thus only where the waters are characterized as non-navigable, doesthe concept of riparian ownership come into play. The tidal distinctionis now only applicable to fishing rights. In tidal waters, there is apublic right to fish, but not in non-tidal waters.14Where the Crown grants a water-lot to a subject, but retains areservation in respect of any navigable waters, the express grantsevers the ownership of the solum from the rights of public navigation.The public right of navigation is much like an easement and thegrantee of the solum takes subject to such right. The grantee cannotinterfere with or obstruct the public right of navigation which is para-mount to all other rights in the water.' 5What are the factors that point towards navigability? The flowingof tidal waters is a prima facie but not conclusive test.'6 User forcommercial purposes is a factor that has been often considered.17 Withthis decision, the Supreme Court has created a still further test. Ifthe waters are let onto land for a specific private purpose from a sourcethat itself qualifies as navigable, they are not characterized as navi-gable; but if the waters flow onto land as the indirect result of a dredg-ing operation which has the effect of merely indenting the shorelineof recognized navigable waters, they will be characterized as navi-gable.' 8It is submitted that such a test could produce problems. What if aperson creates a bay such as the one in question for use as a privateharbour? Should the fleeting element of a man's intention determinethe character of the waters? The difficulty lies in distinguishing factsituations in the twilight zones. It is submitted that a subjective test,such as that here adopted by the Court, is inappropriate and shouldbe avoided.12 Clarke v. Edmonton [1930] S.C.R. 137; Dixon v. Snetsinger (1873) 23U.C.C.P. 235; now codified in The Beds of Navigable Waters Act, R.S.O. 1960,c. 32.13 A.G. Que. v. Fraser (1906), 37 S.C.R. 577; R. v. Meyers (1853), 3 U.C.C.P.305 (the Canadian common law and civil law positions now being the same).14 A.G. Can. v. A.G. Que. (1921] A.C. (civil law).A.G. B.C. v. A.G. Can. [1914] A.C. 153 (common law).15 Cunard v. P.. (1910), 43 S.C.R. 88.16 Supra, footnote 2 at 443.17 Supra, footnote 10.18 Supra, footnote 9.[VOL. 3

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Constitutional Law: Simpson Land Co. Ltd. v. Black Contractors Ltd.

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