Vauclair, Lavallée, Buchholz (ad hoc)

Appeal from a judgment of the Superior Court dismissing an application for declaratory judgment. Allowed in part.

The appellants own 40 lots bordering 3 navigable and floatable lakes. Following the cadastral renewal, they discovered they did not own the strip of submerged land going around the lake in front of their respective lots. The issue in dispute is to determine whether the trial judge erred in concluding that, when the author of the respondent sold the subdivided properties [translation] “bounded by the lake”, this boundary corresponded to the high-water line after the lake level rose following construction of a dam, rather than the natural high-water line. 

The judge committed a palpable and overriding error by equating the submerged strip of land with the bed of the watercourse. Indeed, because the level of the lake was not raised at the time of the initial concession transferring the property from the public domain to the private domain, and because the high-water line within the meaning of article 919 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) was determined at the time of this concession, the watercourse bed begins at the natural high-water line.

The judge also erred in concluding that, with respect to a navigable watercourse, the doctrine of accessory right applies only if it coincides with the parties’ common intention expressly stated in the deed of sale. On the contrary, it is precisely when there is no reference expressly excluding a pebble beach, tideland or watercourse bed in the deeds of sale subsequent to the initial concession transferring them from the public domain to the private domain that the doctrine of accessory right may play a role, regardless of whether it concerns a navigable or non-navigable watercourse.

In this case, applying the doctrine of accessory right gives rise to a presumption that the respondent’s author intended to assign the riparian lot including the submerged parcel. Based on Administration portuaire de Québec c. Thibeault (C.A., 2018-01-22), 2018 QCCA 72, SOQUIJ AZ-51460316, 2018EXP-156, absent express statements by the appellants or their authors in the deeds of sale indicating that the seller reserved the submerged strip for the seller, that strip must be included in the assigned riparian lot, as an accessory of this lot. The terms [translation] “bounded by the lake” stipulated in the deeds of sale refer to the shore that existed before the dam was built such that the scope of the appellants’ right of ownership ends at the natural high-water line, that is, the level of the lake before it was raised.

Finally, there is no reason to rule on the conclusion seeking a declaration that the lots created outside of the cadastral renewal and attributed to the respondent were attributed without right and to the appellants’ detriment. Indeed, this conclusion would imply that it was the cadastral renewal that created the situation the appellants contest, when that is not so. The creation of the cadastre cannot confer rights of ownership, and the respondent cannot benefit from article 3027 C.C.Q., which establishes a presumption that the cadastre is accurate. That presumption is rebuttable and was rebutted in this case by the application of the doctrine of accessory right.

Text of the decision: http://citoyens.soquij.qc.ca