On controlled bodies of water, “High Water Mark” presumptively referred to line where land met water at normal controlled level

Parties who owned adjacent properties on lake were in dispute concerning 100 ft of waterfront. Parties disagree on where lot line between their properties ended at lake. Intersection of lot line with water's edge varied significantly depending on water level. Plaintiffs brought application for order declaring that lot line terminated at its intersection with water's edge at “normal controlled high water level” (NCHWL) of lake. Defendant sought order declaring that lot line terminated at its intersection with water's edge at level of lake at its natural state at time of Crown patent. Plaintiffs' application granted. Water level of lake had been controlled by dams from some unknown date before survey in 1901. On controlled bodies of water, “High Water Mark” presumptively referred to line where land met water at normal controlled level, absent clear evidence that at water level lower than NCHWL was intended to be conveyed. Such interpretation recognized that land bounded by water at NCHWL was riparian, yet would not be subject to regular flooding. Registered plan was not ambiguous. Line between lots terminated where it intersected “High Water Mark” which was water's edge of lake at NCHWL, at contour elevation of 106.33 feet (assumed datum). It was open to company that subdivided land in 1958 pursuant to registered plan to choose this boundary.

Becker v. Walgate (2019), 2019 CarswellOnt 5932, 2019 ONSC 2342, Corkery J. (Ont. S.C.J.).

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