January 08, 2018
Vézina, Savard, Ruel
Appeals from a judgment granting in part an application and cross demand seeking a declaratory judgment and dismissing the intervention of the incidental appellant. Principal appeal dismissed, incidental appeal and intervention of the impleaded party allowed.
The appellants are non-riparian property owners near Lake Aylmer. The respondents are riparian property owners. The dispute concerns the use of a strip of land located between the geodesic elevation of the high-water line and the geodesic elevation of the modified high-water line, designated by the parties as the “bank” of Lake Aylmer. The appellants ask the Court to recognize a beach servitude. In turn, the respondents have filed an application seeking recognition that the bank belongs to them. The Attorney General of Quebec intervened in the file seeking a declaring that the bank in fact belongs to the State up to the modified high-water line because Lake Aylmer was raised following the construction of a dam. The trial judge found that the bank of Lake Aylmer, located between the geodesic elevation of 246.89 metres (the natural high-water line) and 248.75 meters (the modified high-water line) is the respondents’ property. According to the judge, the appellants have a lake-access servitude. They therefore have swimming and navigation rights and may leave light aquatic equipment there. They may not, however, set up chairs on the bank, use it as a playground, or store aquatic equipment there for several hours. The Attorney General and the non-riparian property owners appeal this judgment.
Article 919 of the Civil Code of Québec (C.C.Q.) provides that unless the law or the act of concession provides otherwise, the beds of navigable and floatable lakes are property of the State up to the high-water line. To determine the high-water line of a body of water within the meaning of this provision in the context of delimiting the public and private domains, it is necessary to consider the water level as it was at the time of concession, taking into account any natural or man-made phenomena having permanent repercussions (such as the existence of a dam). Moreover, when the title clearly delimits the property granted, there is no need to consider the content of a lot. This is the case when the limits of a lot are established on the basis of fixed and apparent objects such as roads or lake beds.
In the present case, the bed of Lake Aylmer is the property of the State. This is a necessary conclusion based on the presumption against the assignment of the property of the State, of which lake beds form part, up to the high-water line (art. 919 C.C.Q.). The riparian property owners have not rebutted this presumption. The last specification in 1951, which constitutes the lot’s [translation] “birth certificate”, is based on a land survey that establishes the lake bed in its raised state. The lot granted by the State in 1957 to the common seller of all the parcelled lots therefore extended to the modified high-water line. Consequently, the bank remained the property of the State at the time of the lot’s concession in 1957.
Thus, all the riparian property owners shall have the right to access Lake Aylmer for the purposes of recreational aquatic activities and swimming. This right arises from two distinct sources: for the appellants, it comes from their lake-access servitude, and for the respondents, from their riparian rights. Moreover, the riparian property owners may, without government authorization, install a floating or piled platform and a boat shelter on the bank, which the non-riparian property owners will not be permitted to do.
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