January 22, 2018
Thibault, St-Pierre, Rancourt
Appeals from a judgment of the Superior Court dismissing an application for an injunction and for damages and allowing in part a cross-application seeking a declaratory judgment. The appeals in the Administration portuaire de Québec (APQ) files are dismissed; the principal appeal in the Marina de la Chaudière inc. files (nos. 200-09-009181-154 and 200-17-018621-136) is dismissed, while the incidental appeal is allowed in part; finally, in the other Marina file, the appeal is dismissed.
Marina operates its business in the Chaudière river basin. Since 2002, it has been leasing a deep water lot at the mouth of this river from the APQ. It has three approvals issued by the Minister of Transport for the installation of its docks and buoys under the Navigation Protection Act (R.S.C. 1985, c. N-22). Since 1972, Thibeault has owned a dock installed on the Chaudière river in front of a residence belonging to his spouse. On May 3, 2013, he acquired three parcels located on the Chaudière riverbed. He informed Marina’s management of this and told them that he would not tolerate mooring on his property. Tremblay, for his part, owns a gangway and a dock on the river in front of his property. At trial, the judge found that Thibeault was the owner of the Chaudière riverbed with respect to the parcel described in his deed of sale. As for riperian rights, the judge noted that they allow their holder to install a dock in front of their property and make normal use of it. She added that Marina would have to install its docks in such a way that it respects the riperian rights of Tremblay and Steffen, in particular so that its moorings and chains do not block the movement of their watercraft or prevent them from walking along the shore. Marina’s application for an injunction against Tremblay and Thibeault was dismissed in view of Thibeault’s property rights and Marina’s failure to respect the riperian rights of Tremblay and Steffen.
According to consistent and well established case law, the rights of riperian owners of non-navigable and non-floatable rivers extend to the middle of the river, i.e., [translation] “to the run-of-the-river,” if they own one side, and the entire riverbed if they own both sides. In this case, the parties to a deed of sale entered into in 1904 did not expressly indicate that the Chaudière riverbed, located between the lots on each side of the basin, was included in the sale. Applying the [translation] “run-of-the-river” theory, the judge found that the bed of the river, which is navigable and floatable, had been transferred to the patrimony of the purchaser because the latter had become the owner of the lots on each side of the watercourse. Had the seller wanted to keep only the ownership of the riverbed and sell everything he owned at that location, he would have specified that. According to the judge, the intention to sell the riverbed may therefore be inferred from the absence of an express reservation. Moreover, the purchaser conducted himself as if he was the owner of the bed by granting a 30-year emphyteutic lease in 1908. The seller did not express any objection at the time. In the circumstances, the theory of the accessory must be applied; the sale in 1904 of the properties along the Chaudière river included its bed. This means there was no break in the chain of title at the time of this sale and that Thibeault has a valid property title.
The public right of navigation belongs to all and may only be restricted by the federal Parliament, which has constitutional jurisdiction over the matter. It adopted the Navigation Protection Act, which grants it the power to determine whether a work placed in navigable waters is likely to interfere with navigation and to subject its installation to the conditions it deems appropriate. However, the approval of a proposed work does not exempt its holder from its obligation to respect the property and riperian rights of the lands on which such works are placed. By installing a dock, Marina is not exercising its navigation rights. It is accomplishing an act for the purpose of operating its business. In addition, the approvals issued to it by the Minister have become moot in view of Thibeault’s recognized property rights. Thus, the judge did not err in dismissing Marina’s application for an injunction.
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