Cadastral Survey Practise1851 to 2004A brief historical outline of the development of the professional organization,surveying methods, and the common and statute law in British Columbia.

Presented by Donald Duffy, BCLS

At the 100th AGMof the Corporation of Land Surveyors of the Province of British Columbia,Victoria, BC, January 18, 2005

This publication is designed to provide accurate and authoritative information in regard to the subjectmatter covered. If legal advice or other expert assistance is required, the services of a competent

professional person should be sought.

© 2004 Donald DuffyAll rights reserved.

Printed in Canada.

Published by the Corporation of Land Surveyors of the Province of British Columbia and KrucibleSolutions.

This publication may not be reproduced, stored in a retrieval system, or transmitted in whole or in part,in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without theprior written permission of the author.

Introduction

The history of the surveying profession is closely linked to the history of British Columbia. Each land

survey, as it is carried out and recorded, becomes a part of the fabric of the province. Some may have

lives of only a few years, or a few decades, as parcels are resubdivided and new plans supersede the

old. Others may survive, as the primary evidence of title and of geographic reality, for a century or

more.

It is natural for land surveyors to be interested in history. Historical research of original field notes and

plans connects us directly with the surveyors who did the work, whether a decade or a century ago,

and compels us to learn more about the world in which they worked, and the training, tools, and

environment which influenced what they were able to accomplish.

The history of land surveying in British Columbia begins with the building of Fort Victoria, by the

Hudson’s Bay Company, in 1843. In 1849, the whole of Vancouver Island was granted by the Crown to

the Hudson’s Bay Company, subject to the right of the Crown to repurchase the island after 10 years,

on expiry of the Bay’s trading license. The first officially recorded survey was made in 1851, under the

supervision of Joseph Pemberton, who was Colonial Surveyor for the Bay, and, later, the first Surveyor

General of Vancouver Island. Although the Hudson’s Bay Company was primarily a trading enterprise, it

was also interested in encouraging farming in southern Vancouver Island, so a variety of shapes and

sizes of parcels were surveyed during its tenure.

The gold rush, first to the Fraser River, and then to the Cariboo, starting in 1858, produced a boom in

real estate in Victoria and Southern Vancouver Island and led immediately to the founding of the

mainland colony of British Columbia, with its capital at Fort Langley.

Recognizing the need for technical expertise in surveying and road building , Governor Douglas arranged

for a company of Royal Engineers to be sent from England in 1858 and 1859. Colonel R.C. Moody,

commander of the Royal Engineers establishment, was also appointed Chief Commissioner of Lands

and Works, with responsibility for the survey of Crown Lands in the Mainland Colony, while Pemberton

continued as Surveyor General of Vancouver Island.

The two colonies of Vancouver Island and British Columbia merged in 1866, and joined the Canadian

federation in 1871. At this time, the economy was quite weak. Gold production in the Cariboo, the

stimulus to most of the early growth, was rapidly declining. The non-aboriginal population, of about

9100, was mostly located in Victoria, New Westminster and Nanaimo. Fishing was the main industry,

with about 400 people employed in sawmills.

Several forces combined to produce a huge boom, and consequent strong demand for surveying

service, commencing about 1880, and continuing, with minimal interruptions, until 1914.

The Kootenay mining boom began about 1880 and continued through the nineties. This led to the

development of the towns of Nelson, Trail, Rossland, Grand Forks and Greenwood.

The Coastal Timber Industry also began a period of rapid growth around 1880. In 1881, there were

about 27 sawmills; by 1911, there were 224, employing about 15,400 people.

Fruit growing, in the Kootenay and Okanagan, expanded at a rapid rate just after the turn of the century.

In 1901, there were 7,000 acres in orchards - by 1908, there were 100,000 acres.

The great driver of the boom in construction and real estate, and consequent demand for surveying

services, however, was railway building. Given that most railways took years to build, a list of starting

dates is only a rough indication of the effect on the economy.

• Canadian Pacific Railway, Field to Vancouver 1881

• Esquimalt and Nanaimo Railway 1884

• Shuswap and Okanagan Railway 1887

• Crows Nest Pass Railway 1899

• Canadian Northern Railway, Jasper to Vancouver 1909

• Grand Trunk Pacific, Jasper to Prince Rupert 1909

• Pacific Great Eastern, North Van. to Prince George 1912

Speculation in townsite lots, rural land and timber, as well as the legitimate needs of farmers and other

settlers, produced a massive demand for all kinds of surveying services, and this demand continued to

grow until the outbreak of the First World War in 1914. Then came a sudden and profound collapse.

Although there was some recovery, and a modest amount of growth on the coast during the nineteen

twenties, this came to an end in 1929 and land prices and real estate activity remained in a depressed

state until the end of the Second World War.

Surveyors, more than most professionals, are directly affected by the ups and downs of the economy.

Growth, particularly in resource development and transportation infrastructure, creates strong demand

for surveying services; depressions and long periods of slow growth have the reverse effect.

This paper will trace the history of cadastral surveying in British Columbia, and of the development ofthe related statutes and common law, in the light of the broader picture of the economic history of theprovince.

Pioneer Days - 1851 to 1914

1.1 Professional Organization

When a group of land surveyors got together in New Westminster, in October of 1890, to talk about

forming a professional association, the Province was enjoying a resource and real estate boom, but the

profession was not in the best of shape. Twenty-two land surveyors were in attendance, and an

additional eleven were represented by proxies held by some of the attendees. The surveyors were

meeting to form an Association of Provincial Land Surveyors, and to draft a petition, addressed to the

Chief Commissioner of Lands and Works, setting out their concerns, and some suggested remedies.

The petition makes interesting reading. It starts by pointing out that, in the jurisdictions of other

provinces, and of the Dominion, surveys are performed only by properly qualified persons,acting under such instructions, embodied in Acts of Parliament, regarding methods ofprocedure, as will ensure accuracy. It goes on to mention complications, law suits andhindrances which have arisen and will arise from improperly executed surveys, and points

out that a proper map of the Province cannot be made.....without a system of surveyrequiring a high degree of proficiency in those performing the work.

The main point of the petition is the need for appointment of a Board of Examiners, which could

examine candidates, or the qualifications of out-of-province surveyors wishing to perform surveys in

British Columbia. There is also a need for regulations governing professional conduct. To make its point

crystal clear, the petition goes on to say: Experience has shown that a large class existspossessed of the mistaken idea that surveying is a lucrative and easy life, and that anordinary education without any special training is sufficient qualification therefor. Thisidea we would most emphatically protest against, and in order that the status of theprofession should be raised as much as possible we believe that incompetent personsshould be debarred under penalties from exercising any of the functions of a LandSurveyor for fee or reward.

Previous to 1890, qualifying to practice land surveying in BC had been a pretty informal process, and it

seems likely that some members of the “large class” mentioned above were indeed able to pass

themselves off as surveyors. After 1890, in response to the surveyors’ petition, a Board of Examiners

was formed, and, fifteen years later, in 1905 the Land Surveyors Act was passed by the Legislature,

and our Corporation was formed.

In 1890, the founders of the P.L.S. group numbered about thirty-four. By 1905, there were about

seventy-three members in this group, and they became the founding members of the Corporation of B.

C. Land Surveyors. Membership of the new organization expanded at a healthy rate, averaging 7 per

year between 1905 and 1909. Then the growth rate spiked, to an average of 29 per year between1909 and 1914. In 1914, there were 243 active members and 354 articled students. The

President declared that the membership was increasing out of all proportion to the increase inwork.

1.2 Survey Standards

There were no statutory standards governing accuracy or monumentation of the early Crown land

surveys, but there is record of a letter, dated June 18th, 1859, from Colonel Moody to James Tilton,

Surveyor General of Washington, requesting “a few copies” of the U.S. Instructions for Surveys of

Public Lands. Although there is no record of a reply, it is obvious that Colonel Moody got the

information he wanted, as there is a notebook in the Royal Engineers Survey Records containing a hand-

written copy of the first thirty-one pages of these instructions. Copies of the Dominion Manual of 1871,

for the survey of Manitoba lands were also available, and it seems that the monumentation standards,

of squared wooden posts, carved bearing trees and blazed line trees, were derived from this

combination of manuals.

The Land Act of 1879 contained detailed survey instructions, which remained in force, withonly minor changes, until 1947. Except for the weak requirements for monumentation, these

instructions were probably adequate to produce a decent standard of survey, provided they were

adhered to. Most of the problems that have been uncovered in modern times were due to blunders,

or to failure to properly retrace previous surveys when butting up to them. By Order in Council of April

15th, 1897 it was confirmed that all surveys of Provincial land were to be carried out in person byqualified Provincial Land Surveyors. The first general instructions to surveyors, under the

Land Act, were issued in 1912. The act was amended in that year to define the duties of the Surveyor

General in managing Crown Land surveys, and also to introduce limits of “closing error” of 12 links in

both latitude and departure for each mile of boundary run. More detailed instructions, including

requirements for observations on roads, land, timber, clearing costs and availability of game animals,

were issued in 1914. Lakes over 10 acres in area and rivers over one chain in width were to be

traversed. Bearings were to be derived from astronomic observation, except for surveys of limited

extent.

The equipment available to surveyors in the pioneer era was also quite adequate to produce a level of

accuracy in the order of 1:2500. The Gunter’s Chain, consisting of 100 links, each 0.66 feet in length,

although subject to lengthening due to wear, was capable of reliable distance measurement, in the

hands of careful users. The firm of W. & L.E. Gurley was a pioneer in the development of surveying

transit theodolites. The Gurley Model of 1852 included a compass, as well horizontal and vertical circles

which could be read to one minute of angle, by means of verniers. The Gurley Light Mountain Transit of

1876 was popular in British Columbia. Two or three other firms produced competitive models.

The lack of any sort of survey standards in the Land Registry Act was a major source of trouble

and litigation throughout the pioneer period, and for years afterward. Although the certainty and clarity

of the Torrens Title System was introduced to Vancouver Island in 1861, and to the combined colony in

1870, the legislators did not seem to care if the owner, whose title was guaranteed, could find the land

he owned, identify its boundaries, or have any certainty as to content.

According to a paper presented by W. H. Powell, BCLS, at the 1918, Annual Meeting, some of the

early subdivisions in Vancouver were “paper subdivisions,” in that there was no posting at all. The

Granville townsite was surveyed in 1870 but the plan was not registered until 1885. After the fire of

1886, the firm of Gardner and Hermon resurveyed this townsite, but their plan and field notes “gathered

dust” in City Hall for thirty years and the plan was not registered until 1917.

Although many subdivisions were posted, either in whole or in part, the plans usually failed to show the

extent of the posting. Some subdivisions were posted only at block corners; others were posted only

on the fronts, with buyers and builders expected to establish their side boundaries by sighting across

the block to the appropriate front corner on the next street.

There was usually an absence of any indication of old posts or other evidence by which the original

parcel boundaries were defined. If, for example, a district lot was subdivided, the subdivision might or

might not show hollow circles on the corners to indicate that something had been found there.

Nothing much was done during the pioneer period to tighten the survey standards under the Land

Registry Act, and, as the townsite subdivision boom expanded across the province, “Townsites” along

the paths of the new railways, were created by the dozen, often designed more to accommodate the

needs of speculators than to provide sites for homes and businesses. Because the collapse of the

boom, in 1914, was so sudden, some of these lots were never sold, and many more were abandoned

by their purchasers and forfeited to the Crown for non-payment of taxes. Many also remained in

private ownership, to create a legacy of headaches for owners and surveyors through the inter-war

period and into modern times.

1.3 Legal Decisions

Attached, as Appendix A, to this paper, is a seven page summary of the cases which are reviewed in

the brown-covered book of Land Surveying Decisions that, I expect, every B.C. Land Surveyor has in his

library. Although this book contains a lot of good information, I have always found it hard to follow, in

that you pretty well have to read each case in full in order to understand its relevance.

In order to simplify my own task in researching this paper, it was necessary for me to summarize these

cases, so I am providing my summary in case it may help anyone else. Obviously, the summaries are

nothing more than my own best efforts to understand these cases, and I am probably not always right.

Similarly, I have made an executive decision that a few of the cases are quite irrelevant to the modern

surveyor, and have deliberately left them out.

The ones I found relevant, which were decided before 1915, are as follows:

In Johnston v. Clarke, 1884, Page 5, the original surveyor, Saunders, laid out Lots 201 and 202 in

1870, by traversing the shore line and running out the side boundaries, but without running the back

lines, in such a fashion as to place posts at all the corners with the minimum amount of work. Although

the rear lines were intended to run in an east-west direction, and are shown thus on the Official Plan,

the posts were not placed on an east-west line. In 1875-76, Surveyor Jemmet, surveying District Lots

375-376-377, commencing from the south, tied to Saunders’ posts, found they were not in a straight

line and proceeded to “correct” his survey by, (1) placing the southwest corner of Lot 201 due west of

the southeast corner, and, (2), giving Lot 202 its approximate intended acreage by shifting Saunders’

southeast corner to the north and his southwest corner to the south.

Sitting as a trial judge, Mr. Justice Begbie found that the posts in the ground should govern, even

though not joined by east-west lines, except that the owner of Lot 202 was estopped by his actions in

preparing a subdivision plan, in 1880, which appeared to conform to the Jemmet boundaries.

Sitting as a Court of Appeal, the judges determined that there was no estoppel, and that the south

boundaries of the lots were lines joining the posts as set originally, not east-west lines as shown on the

plan.

This case is important because it establishes the principle that original posts in their original positions

govern the corners, even if not set as intended, due to surveying errors. It is also a treat to read, as the

reasons for judgment, in the trial court decision, were written by Mathew Begbie, then Chief Justice of

British Columbia, and a master of clear and elegant English.

In Barry v, Desrosiers, 1908, Page 16, all the posts in the block were destroyed by fire 23 years prior

to the trial. On being resurveyed, the block was found to be six inches short of the plan measurement.

By proportioning the shortage over the entire block, Desrosiers’ building was found to encroach 3/4 of

an inch onto the adjoining lot. Held, on appeal, that the encroachment was not proven, as there was no

certainty that the error in the original measurement was evenly distributed among the lots.

This case is interesting because it is a triumph of common sense, on the part of the Court, over the

rigidity of strict pro-rating, on the part of the surveyor. No mention is made of the building as

secondary evidence of the corner. This sort of problem could now be dealt with more simply by

means of an action under the Property Law Act.

In Anticknap v. Scott, 1913, Page 29, Surveyor Green’s assistant did the survey and plan for

attachment to title for Anticknap. Scott’s surveyor, King, disagreed with this line. Green then corrected

his line to agree with that of King. At the trial, Scott claims both surveyors have disregarded an old

post, which the surveyors say did not exist. The trial judge is satisfied that the surveyors are correct,

finds for the plaintiff and assesses $25 damages for trespass and blockage of a road.

On appeal, the judgment is overturned and a new trial ordered. Appeal court judge says survey

evidence is “hearsay” because both surveys were performed by articled students. He also says that

the trial judge kept inadequate notes for the appeal court judges to fully understand his reasons.

This is the classic case on the need for personal supervision of surveys. Although there appear to be noother cases on record, poor supervision was a major concern during the boom years. Two membersof the Corporation were suspended by the Board during 1913 for failure to supervise.

War and Depression - 1915 to 1946

2.1 Professional Organization

With the outbreak of the World War, in 1914, the great boom turned, within a year, into an

unprecedented bust. A large part of the boom had been financed by British money, and the sudden

end to British investment, combined with the return home of British entrepreneurs, and the shortage of

steel and other materials, brought new construction to a sudden halt.

In his 1915 address to the Annual Meeting of the Corporation, the President remarked that the “bonanza

years” had departed forever. There were 260 active members. In 1916, the President indicated that

“war and the general financial depression” were hurting the profession. 70 members were in the armed

forces.

By 1917, 106, or 40% of the members of the profession were in uniform, and 11 had been killed.

Because of the many Crown Land parcels which had been surveyed, but abandoned by the applicants,

many surveyors had gone unpaid for their work. Government policy had been to require payment

before Crown Grants were issued - if there was no grant, there was no incentive to pay. According to

the President’s report of 1918, there was not much government work and practically nothing going on

in the private sector.

In 1919, the president reported that a total of 118 members had served in the armed forces, with 22

having been killed. The active membership was 250, and business was “decidedly dull”. In 1922, the

President reported a “not very bright year, the seventh consecutive lean year.” In 1924, the President’s

message was “hold on for a better day”.

By the 1925 Annual Meeting, surveyors were still “suffering severe times,” but things were gradually

improving. There were 170 members. In 1926, there were said to be sufficient land surveyors to

handle “three times the work on offer.”

Although economic conditions gradually improved between 1927 and 1929, the depression of the

nineteen thirties was even worse than the slow times of the twenties. By the time of the 1933 Annual

Meeting, conditions continued to be “very bad,” with many members unable to eke out a living, and

some turning to other pursuits, including placer mining. By 1935, there were 149 members, but 21

were over 65, and exempt from dues, and other members were in arrears.

Given all the stress, it is not surprising that the intake of new members greatly decreased after 1914.

There were an average of 6 per year between 1915 and 1919, 4.5 per year between 1920 and 1924,

and only 1.25 per year for the twenty years between 1925 and 1949. The total membership of the

Corporation continued to decline until 1944, when there were 104 active members. Because of the low

intake of new members for the previous twenty-eight years, most of these members were advanced

in age.

Despite the hard times, however, the Corporation performed very well, both for its members and for

the general public. The papers presented at annual meetings, mostly by members, on a variety of

survey-related subjects, are very impressive.

The paper on Surveying, by S.S. McDiarmid, in the 1915 Annual Report, is a remarkable piece of forward

thinking. He starts by pointing out that the practice of the surveyor of today, and especially in the

future, will be in “old” surveys. He then goes on to define as “old” a post which was set by another

surveyor 10 am and then found by McDiarmid at 10:30 on the same day. His point is the need to

escape from the pioneer mindset, that of setting new corners without regard for the old, and to

concentrate on replacement of corners in their original positions. He emphasizes the importance of

ensuring that posts have to be in their original positions and gives a couple of examples of posts which

have been moved, either deliberately or through accident. He discusses three time periods in surveying

around Vancouver, giving good marks to the original district lot surveys, mostly by Royal Engineers, but

suggesting a lot of weaknesses in the early subdivision surveys. He says that surveys done

subsequent to these, and up to the year 1907, when times were slow and money was scarce, often

suffered from attempts to work too cheaply, sometimes using the compass. Then, between 1907 and

1912, during the boom, there was more work than surveyors could do, which resulted in carelessness.

The paper by J.G. Cummings, also in the 1915 Annual Report, is a fine essay on the difference between

surveying as a technology of accurate measurement, and surveying as a professional definition and re-

definition of land boundaries. While measurements and areas are important, the land owner needs and

relies upon the actual land marks, whether natural or artificial. Previous to 1907, there was nothing in

the Official Surveys Act to indicate that it applied to anything other than original surveys of crown land;

the amendments of that year made clear that the rules also applied to private land. Cummings cautions

against the indiscriminate use of proportioning in replacing missing corners, but makes no mention of

the use of secondary evidence, such as building corners or fences.

The work done by Board members over the years, in running the examinations and other Corporation

business, with only part time staff, shows a truly admirable dedication to the profession in the face of

great difficulty.

2.2 Survey Standards

While little progress was made in modernizing survey regulations in the years up to the end of the

Second World War, it is interesting to note that the Corporation was pressing hard for improvements,

especially for surveys under the Land Registry Act. At the 1925 Annual Meeting, a resolution

requesting that the Surveyor General issue survey regulations was passed, (without much enthusiasm

from the Surveyor General.) . In 1934, when the Inspector of Legal Offices, (Director of Land Titles of the

time), addressed the Annual Meeting, he was asked to provide some regulation of Land Registry Act

surveys, only to respond that that was up to the Surveyor General. New regulations, requiring iron pins

on certain corners, were finally proclaimed in 1943, but not fully enforced until 1947, because of the

shortage of metal.

The equipment utilized by surveyors did not change much in the years of wars and depression.

Gunter’s chain had been replaced by the steel tape early in the century, though links and chains as units

of measurement continued to the standard under the Land Act until 1959. Wild, the great Swiss

instrument maker, led the development of optical transit theodolites, which set the accuracy standards

until the introduction of electronics in angular measurement. The T2 was introduced in Europe in 1924,

and the T1 in 1932, but few, if any, arrived in British Columbia until after the Second World War.

2.3 Legal Decisions

In Nelson v P.G.E. Railway and O.M.I. v P.G.E. Railway, 1918, Page 36, the Pacific Great Eastern

Railway has been constructed along the shoreline of Howe Sound, the intention being to place it

entirely within the Crown-owned foreshore, and thus to avoid the costs of expropriating private

property. The two plaintiffs, who own adjacent shoreline parcels, claim that the railway encroaches

onto their property, and also that their access to water has been cut off.

The Court, in its decision in favour of the plaintiffs, establishes two important principles. Firstly, in

defining the natural boundary of Howe Sound, the judges reject opinion supporting the use of tidal

records, and quote from the U. S. decision, Howard v. Ingersoll, 1851, as follows: Neither the line ofordinary high water mark, nor of ordinary low water mark, nor of a middle stage of water, can be

assumed as the line dividing the bed from the banks. This line is found by examining the bed and thebanks, and ascertaining where the presence and action of water are so common and usual, and so long

continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of thebanks, in respect to vegetation, as well as in respect to the nature of the soil itself.

An approximation of this definition has been used in British Columbia ever since, and is phrased as

follows in the current Land Act :”natural boundary” means the visible high water mark of any lake, river,stream or other body of water where the presence and action of the water are so common and usual,

and so long continued in all ordinary years, as to mark on the soil of the bed of the body of water acharacter distinct from that of its banks, in vegetation, as well as in the nature of the soil itself;.

The second principle is that the upland owners are entitled to compensation for interference with

their riparian rights of uninterrupted access to the water.

In Kipp v. Simpson, 1928, Page 57, Simpson owns the S. E. 1/4 of Sec. 1 and Kipp owns the N.E. 1/4

of Sec. 1. The Crown Grant Plans show the N.E. 1/4 as bounded on the south by the north bank of the

Vedder River, and the S.E. 1/4 as bounded on the north by the south bank of the Vedder river. The east-

west quarter line, however, crosses the river, and, based on the description independent of the plans,

there is a 4 acre part of the N.E. quarter lying south of the river. The appeal court found that the plans

should govern, and the 4 acre portion belongs to Simpson.

In Clark v. McKenzie, 1929, Page 68, McKenzie built a house, unknowingly encroaching a maximum of

3 1/4 inches onto the adjoining lot. About 15 years later, Clark purchased the adjoining lot, which was

still vacant, discovered the encroachment, and demanded $500 in compensation for the encroachment,

though the price of his lot was only $1500. McKenzie offered $50, and Clark then sued for an injunction

requiring removal of the house. In finding for the defendant, and ordering payment of $50 in

compensation, the judge ruled that, where an encroachment was relatively small, and the cost of

removal of the encroachment very large, then damages were the more appropriate remedy.

It is interesting to note that the Common Law principle, enunciated here, of reasonable compensationfor an unintentional encroachment, as an alternative to removal, was not incorporated into the BCStatutes until 1975, with passage of the Laws Declaratory Act. It is now part of the Property Law Act.

Growth and Technology - 1947 to 2004

3.1 Professional Organization

There were 113 active members and 12 new articled students in 1947. The provincial economy was

starting to grow at a healthy rate and many of the active members were elderly. Surveyors were in

short supply for a few years until the postwar articled students began to qualify in substantial numbers.

From 1950 to 1954, the average number of new surveyors was 11 per year. Nineteen, the maximum

annual intake in the post-second world war period, was reached in 1956, and the supply and demand

for surveyors has been probably pretty well balanced since then.

The provision of improved educational resources for survey students was a high priority objective

throughout the postwar period. Although the opening of a two year course in surveying technology at

the BC Institute of Technology was successful, in that it provided candidates with two years of related

post secondary education, the goal of having a four year university course, accessible to BC students,

and producing graduates with all the necessary education to qualify as professional surveyors, has

never really been reached.

After some fruitless discussion with U.B.C., and a brief negotiation with Simon Fraser University, there

was reason to think that the newly-established University of Calgary would provide a home for

students in cadastral surveying, not just those from Alberta, but from BC, Saskatchewan and Manitoba

as well. By working together, the surveyors of the four western provinces thought , the crucial

problem of limited numbers could be solved, and one first class school could educate students from all

four provinces. Meetings were held and agreements were signed.

Although the early results were hopeful, and the program did produce a substantial number of well

qualified candidates for professional certification in BC, the funding problem was always a stumbling

block. The BC Government never met its original commitment to fund a defined number of student

places at U of C. The Corporation, together with the land survey associations of the prairie provinces,

tried to provide funding assistance, but this was never at the same scale as that of other potential

employers of graduates, with the result that cadastral surveying remained a low priority at U of C and

was never adequately staffed or promoted to incoming students.

The need for a Manual of Standard Practice, and the appropriate means of enforcing practice standards,

was the subject of lively debate for a number of years, resulting in the publication of a set a standards,

and the appointment of a full time manager to enforce them. Coincidentally, as the Corporation was

moving through this process, the BC Government was proceeding with a major program of eliminating

government regulation in many areas of the economy. These combined initiative resulted, in 2004, in

the transfer of responsibility of the Survey Regulations, from the Surveyor General to the Corporation of

Land Surveyors, with the Surveyor General still being responsible for the review of proposed changes.

3.2 Survey Standards

The 1947 regulation, requiring “permanent,” (metal) posts to be used for surveys under the Land Act

brought BC into the modern world, insofar as the posting of surveys was concerned. From then on,

there was a continuing modernization of cadastral survey regulations, culminating, in 1959, with the

introduction of a comprehensive new set of regulations, under all the related statutes. These have

been updated and kept current ever since.

The great changes affecting surveying in the postwar world have been made in the technology of

measurement and computation. The computation of traverses was a time-consuming and error-prone

task when I entered the first year of the Survey Technology course at Calgary Tech. in 1952. First you

looked up the logarithm of the distance in a log. table; then you found the log. sine and log. cosine of

the bearing; then you added each to the log. distance; then you found the antilog. of each result; then

you added each of these to your coordinate table.

The introduction of the Curta calculator helped a lot, so you could use natural trig. function tables, not

logarithms. My Curta calculator cost $125.00 in 1955, when I was getting paid $1.25 per hour as a

survey technician. A hundred hours of work, but worth every penny.

Then, in 1965, came the big break - the Olivetti 101 desk calculator - it could develop its own trig.

functions and print out a coordinate table - you only had to enter bearings and distances. Other

competitive models soon followed. In 1979, Hewlett-Packard introduced the HP 85, a real

microcomputer, operating in BASIC language, which could do practically any survey calculations, as well

as drive a plotter, if you could afford the expensive and complicated mechanical models that were

available at the time.

Technology also revolutionized the measurement of angles and distances. Optical reading transit

theodolites, developed in Europe before the second world war, were in general use in BC in the

nineteen fifties.

The Geodimeter, the first instrument to use light waves in measurement, was invented in 1953, but

the first models weighed hundreds of pounds, and were used only for base line measurement in

triangulation projects. The Model 4, introduced in 1961, was the first practical field instrument, but it,

too, was heavy, fragile, and mostly usable at night.

MRA 1 Tellurometers, Introduced in North America in 1957, made electronic distance measurement a

practical field technique. Two instruments, one at each end of the line being measured, were required.

Although slow to set up, and, with car batteries as a power supply, brutally heavy to carry, they were

sufficiently robust for trouble-free operation in field surveying. Although ineffective for the short

distance measurements required for most cadastral surveys, they revolutionized the measurement of

long lines, in oilfield and right-of-way surveys, and in mapping control.

In 1969, Hewlett-Packard introduced the HP 3800A Distance Meter. Using infrared light rays and

measuring to a reflector, the instrument weighed 17 pounds and required a separate 13 pound power

pack. Capable of precise measurement of distances up to 10,000 feet, robust, and fully operable in

bright sunlight, it was the start of a process that would quickly lead to the abandonment of the steel

tape as a measurement standard, and to the introduction of competitive instruments, first, with

distance and angle measurement integrated, and, then, to the Total Station, which integrated

measurement and field computation all into one tripod mounted instrument. By 1990, it could be said

that the historical surveying problems of distance measurement, direction measurement and field

computations had all been resolved.

The other major technological event which occurred in the post war years was the development,

commencing in 1978, of the Global Positioning System. Originally designed by the U. S. Dept. of

Defense for military purposes, it was soon adopted by surveyors, primarily, in the early years, for

mapping control. By 1994, the full set of satellites had been installed in orbit, and GPS-based systems

were becoming practical for more general use, including topographic surveys, though cadastral survey

applications remained fairly rare. More recent experience, combined with the availability of provincial

Active Control Systems, providing centimetre level accuracies in real time, indicate that there will be an

abundance of cadastral and general surveying applications in the future.

A major challenge facing the surveying profession is to find a way to integrate the new technologies

into the historical cadastral fabric with a minimum of disruption, so that a change over to digital plans

and a coordinate based cadastral fabric produces maximum benefits and minimum problems, for the

members of the public who rely on the system.

The current version of the Section 14 of the Land Survey Act reads, in part, as follows: the coordinates

that may be derived from the plan for those original monuments are evidence of their positions and mustbe considered if it becomes necessary to define or redefine the true position on the ground of any

original monuments or the boundaries governed by them.

Given the current relatively small number of surveyed parcels for which precise coordinates are

available, this statutory treatment seems about right, for the time being. In other words, where

accurate coordinates are available, the surveyor must give them appropriate consideration in defining or

redefining a corner. This falls well short of a defining a corner by its published coordinates, without

regard to posts in place.

As we move toward a coordinated cadastre, there will be increasing pressure to have the coordinate,

not the post, define the corner. For municipal engineering departments, and utility companies

particularly, the use of precise GPS, without ever having to look for iron pins (or worry about their

having been moved,) in installing and maintaining services, must look like a tempting solution to an old

problem. An important role of the professional land surveyor will be to ensure that the interests of the

land owner, in being able to identify and rely on his corner posts, are protected.

3.3 Legal Decisions

In Re Land Registry Act re Lot 21, Map 455, 1956, Page 83, the Registrar declined to register a

subdivision plan because it contained land “not registered in the register”. It appeared that the water

boundary of the new plan extended further into Kalamalka Lake than the title plan, possibly due to

accretion. The trial court judge ordered the plan deposited, but the BC Court of Appeals upheld the

Registrar. There were a number of issues which needed to be resolved, possibly through an action

under the Quieting Titles Act.

This case is very important, because it seems to have introduced, with respect to parcels bounded by

water, the concept of two levels of ownership. On the one hand, under the common law, a lawful

accretion is recognized as being part of the upland parcel to which it has accreted. On the other hand,

under the Land Title Act, if the accreted land is outside the boundaries of the plan upon which title is

based, then the Registrar does not recognize this ownership. In 1956, the owner could take a legal

action under the Quieting Titles Act, to prove his ownership and have his title amended. A similar

procedure is currently available, under the Land Title Enquiry Act, but the preferred procedure, of

course, is through sections 94 and 95, of the Land Title Act which permit the Surveyor General to certify

the fact that the land is lawfully accreted, and may therefore be included in the title.

Attorney General of BC v. Neilson, 1956, Page 84, is a Supreme Court of Canada decision which

overturned a trial court decision, which, in turn, had been supported by the BC Court of Appeals. It

involves a very large, (200 ac.) claimed accretion to a 168 acre island in the Fraser River near Vancouver.

As conditions had been changed, in 1924, with construction of a road, testimony as to current, (early

1950s) conditions was deemed to be unhelpful. The main reasons given by the judges in finding that

the area claimed is not an accretion is that, first, it consists of a gradual uprising of the Crown foreshore,

not an attachment to the land, and, second, there is no conclusive evidence that it was manoirable,

(capable of cultivation, ) at the time the road was built. Since then, the road has influenced the deposit

of soil, and parts may well be upland.

A similar case, with an identical result, is Re Quieting Titles Act re Bulman’s Petition, 1966, Page 138.

Bulman seeks a declaration of ownership of 166 acres of land adjoining certain land already owned by

him on the grounds that they are a true accretion. The land is situated on the east side of the Thompson

River, where it enters Kamloops Lake.

These reasons for judgment include a quotation from the land mark decision , Clarke v Edmonton(City), as follows: The term “accretion” denotes the increase which land bordering on a river on or the

sea undergoes through the silting up of soil, sand or other substance, or the permanent retiral of the

waters. This increase must be formed by a process so slow and gradual as to be, in a practical sense,imperceptible, by which is meant that the addition cannot be observed in its actual progress from

moment to moment or from hour to hour, although, after a certain period, it can be observed that therehas been a fresh addition to the shore line. The increase must also result from the action of the water in

the ordinary course of the operations of nature and not from some unusual or unnatural action by whicha considerable quantity of soil is suddenly swept from the land of one man and deposited on, or annexed

to, the land of another.

In ruling against Bulman, and determining that the land in question is vacant Crown land, the judge

determined that the land formed is an alluvial deposit, and has not accreted to the adjacent land, but is

part of a general emergence of land, as sand settled out of the river as it entered the lake, and was

deposited over a broad area.

Rotter v Canadian Exploration, 1960, Pages 97 and 106, is probably the most significant decision in

the post-second world war era, in terms of survey law. Canadian Exploration Limited, (Canex), owned a

parcel of land on the east bank of the Salmo River. This parcel was defined by a reference plan, and

had been subdivided from the Rotter parcel some years previously. The dry land portion of the

remainder of the Rotter parcel was located on the west bank of the river. It was agreed that the Rotter

parcel included the bed of the river, prior to the deposit of the reference plan.

When Canex carried out an extensive dredging and gravel removal program in the bed of the river,

Rotter sued, claiming trespass and damages. Canex, in response, claimed ownership of the bed to the

middle thread of the river, under the English common law presumption of ad medium filum aquae.

The trial court judge ruled that the presumption applied. The colonial legislature had adopted English

common law in 1858, subject to any conflicting BC statutes, and, since the Provincial legislature had

never clearly negated the presumption, it was still in force.

The BC Court of Appeals reversed the ruling of the trial court. As the red outline on the parcel ended at

the river bank, and as there was no reference in the conveyance document to any additional land to be

acquired ad medium filum, this court determined that the bed of the river could not have passed to

Canex, and remained in the Rotter title.

The Supreme Court of Canada, with one judge dissenting, reversed the BC Court of Appeals and

substantially reinstated the trial court decision. It has since been assumed that the ad medium filumaquae presumption applies in BC, subject to its being refuted in individual cases.

The ad medium filum presumption probably made a lot of sense as the common law was developed

by the English courts. There, where titles were based on descriptive deeds, and parcels of land were

not surveyed, the middle threads of streams may have been the most practical boundaries. It was,

however, never good public policy for British Columbia. Under the common law, the owner of the

stream bed also owns the fish. Here, since colonial days, fish and game have been a public resource.

The private ownership of stream beds could prevent or impede access to these resources.

The response, by the BC Government, to the Rotter decision, was passage of what is now Sec. 55 of

the Land Act. the current version reads as follows:

55 (1) If Crown land is or has, before March 27, 1961, been disposed of by thegovernment by Crown grant, and the map or plan attached to the grant shows a lake,

river, stream or other body of water coloured, outlined or designated in a colour otherthan red, no part of the bed or shore of the body of water below its natural boundary

passes or is deemed to have passed to the person acquiring the grant unless(a) there is express provision in the grant to the contrary, or

(b) the minister otherwise directs by certificate under section 58.

(2) Nothing in any Act or rule of law to the contrary is to be construed to vest or tohave vested in any person the land that comprises the bed or shore of the body of

water below the natural boundary, and despite an indefeasible or absolute title to land,the title must be construed accordingly.

In Frass v. Verigen, 1967, Page 161, Mr. and Mrs. Frass own Lot 7, Block 48, in the City of Nelson,

and Mr. and Mrs. Verigen own Lots 8 and 9 in the same block. A difference of opinion arose as to the

location of the boundary between Lots 7 and 8. The Verigens employed Mr. Affleck, a BCLS, to survey

their lots, while Mr. and Mrs. Frass employed Mr. Johnson, also a BCLS, to survey their lot. The two

surveyors differed in their placement of the lot corners, with Mr. Johnson placing the boundary 1.72

feet east of the position posted by Mr. Affleck. This difference was of great significance, since,

according to the Affleck survey, the Frass house encroached onto the Verigen lot by slightly less than

two feet. According to the Johnson survey, the house did not encroach, though there was a sidewalk

encroachment.

Neither surveyor was able to find original survey evidence at or near the corners in question. Johnson

made extensive ties to undisputed corners in the area, and arrived at his determination of the corners

by pro-rating the shortages which he found. Affleck appears to have relied upon the laying out of plan

measurements from other nearby corners in the area, which he had found or established previously. In

deciding that the corners as defined by Johnson were the true corners of the lot, the Court determined

that Johnson had used the methods as set out in the Official Surveys Act, and that the act applied to

surveys of private lands.

Although there are lots of decisions from courts in other Canadian jurisdictions supporting the principle

of pro-rating distances in appropriate circumstances, this seems to be the only one we have in BC.

Apart from that, there is nothing particularly ground-breaking about it, as there was no logical alternative

in this case.

In District of North Saanich v. Murray, 1975, Page 220, Murray owns a lot fronting on the ocean

and the District of North Saanich holds a lease on the foreshore in front of the lot. Murray has built a

wharf across the foreshore, with pilings driven into the soil of the foreshore. The District claims that this

constitutes a trespass.

In finding for the District, the trial court and the BC Court of Appeals found that, while the upland owner

has a right to unimpeded access across the foreshore, he has no right to build improvements on the

foreshore without agreement of the foreshore lessee.

In Re Quieting Titles Act and an Accretion to Lots A to E, Plan 21387, 1974, Page268, the

owners of Lots A to E claim an accretion of land above the natural boundary of Okanagan Lake. Their

surveyor has defined the natural boundary by establishing a line at the controlled maximum elevation of

the lake. In finding against the applicants and rejecting their claim, the judge remarks that the surveyor

has failed to take into account the effect of wind and waves, and that he should have examined the

bed and the banks, and defined the natural boundary in accordance with Sec. 2(n) of the Land Act, (as it

then was,) as follows:

“natural boundary” means the visible high water mark of any lake, river, stream or

other body of water where the presence and action of the water are so common andusual, and so long continued in all ordinary years, as to mark on the soil of the bed of

the body of water a character distinct from that of its banks, in vegetation, as well as inthe nature of the soil itself.

In A Constitutional Reference, 1976, Page 275, the BC Court of Appeals concluded that the

subsurface land under the Strait of Juan de Fuca, the Gulf of Georgia, Johnstone Strait and Queen

Charlotte Strait are the property of the Province, not of Canada, as these lands were part of the

province before BC joined Canada in 1871.

In H.M. the Queen v. Ogopogo Investments Ltd., 1980, page 289, Ogopogo is the owner of two

apartment buildings, situated on adjacent parcels of land. When the buildings were built, Ogopogo

obtained permission from the Water Rights Branch to “straighten out” the creek, and built on part of the

former creek bed. In this action, the Crown is successful in claiming title to the former creek bed. The

owners may obtain title to a dry creek bed, but this does not occur automatically, and can occur only

by means of an action under the Quieting Titles Act, or through procedures involving consent from the

Crown.

In Monashee Enterprises Ltd. v. Prov. of BC, 1981, Page 295, the Crown is the owner of a one

chain strip of land lying between the Monashee land and the Pacific Ocean. The BC Court of Appeals

found that, although the natural boundary of the one chain strip may move inward or outward, as a result of

erosion or accretion, the upland boundary of the strip is not affected, and remains in its original location.

In McKellar v. Fotsch, 1988, McKellar owned Lot 1, Plan 9479, D.L.211, and Fotsch owned the

unsubdivided remainder of the district lot. In 1956, H.A. Cornwall, BCLS, had surveyed a Lot 1 and

prepared a plan, deposited as plan 9479 in the Kamloops Land Title Office, which showed Lot 1 as

bounded on the east by the east boundary of District Lot 211, on the north by a public road and on the

south by the Lilooet River. Later surveys, by other surveyors, established that there was an apparent

gore, containing 0.72 ac., lying between the east boundary of Lot 1, as posted by Cornwall, and the true

location of the east boundary of the district lot. This apparent gore was claimed both by McKellar and

by Fotsch.

Mr. Justice Gow, B.C. Supreme Court, found that there was no gore and that the land in question was

part of Lot 1. The rationale for this decision was that the clear intent of the owner, as indicated by the

plan, was that Lot 1 extended to his east boundary and included all the land south of the road. The fact

that Surveyor Cornwall failed to accurately define this boundary could not upset the intent. In effect,

the posts set by Cornwall were witnesses to the true boundary and would govern all boundaries other

than the pre-existing district lot line.

The facts in Okanagan Radio v. Dunlop, 1996, are somewhat similar to those in the McKellar case.

In 1950, R.P. Brown, BCLS, surveyed a Parcel A and prepared a plan, which was deposited in the

Kamloops Land Title Office as Plan B6706. Parcel A is part of District Lot 196, is said to contain 12.7

acres and is shown as bounded on the east by District Lot 2710, on the south by Sub Lot 38 of District

Lot 2710, on the west by a public road and on the north by the remainder of District Lot 196. In other

words, the southeast corner of the lot is shown as being the southeast corner of D.L. 196. Although

iron pins are shown on the other corners of the lot, the southeast corner is only an unlabeled hollow

circle.

In 1964, D. W. Davies, BCLS, surveyed a Lot 1, which could be described as the northerly portion of

Sub Lot 38, D. L. 2710 and prepared a plan, which was deposited as Plan 17164. The south boundary of

Lot 196 makes up part of the north boundary of this lot. Plan 17164 clearly shows the south boundary

of Parcel A as the same line as the north boundary of Lot 1. In other words, the two parcels are shown

to adjoin. Although it is unclear what, if any evidence, was found by Surveyor Brown, in his definition of

the southeast corner of District Lot 196, Surveyor Davies found one of the original bearing trees, now

fallen down, and used it to define the corner. Both Parcel A, Plan B6706 and Lot 1, Plan 17164, were

owned by one Paul Sharp until 1988, when he sold them to Okanagan Radio. The two together were

always occupied as if they were one parcel.

Some complicated evidence with respect to surveys and to the north-south dimension of District Lot

196 was introduced at the trial, but the sum and substance of it was that the east boundary of this lot

is 5664.71 feet long, not 5280 as shown in the original field notes. It appears that Surveyor Brown’s

plan was about four and a half degrees off in bearing and that he placed the south boundary of the

district lot about 384 feet too far north, thus leaving an apparent gore about 384 feet wide between his

south boundary of Parcel A and the true south boundary of the district lot. This apparent gore contains

about 11 acres, a significant amount of land when compared to the originally stated area of 12.7, as

shown on Plan B6706.

Since acquiring the two parcels in 1988, Okanagan Radio constructed a transmission tower, which is

located within the apparent gore.

Mr. Justice Hamilton of the BC Supreme Court found that the apparent gore is part of Parcel A.

Strangely, he makes no reference to McKellar v. Fotsch in his reasons for judgement, and one can only

conclude that the lawyers for Okanagan Radio were not aware of the case. Judge Hamilton’s rationale

for awarding the land to Okanagan Radio was the long term occupation of that company and of the

previous owner.

In Pacific National Investments v. City of Victoria, 1996, Pacific National Investments, (PNI), had

entered into a development agreement with the City of Victoria, in 1988, as part of the development of

the Songhees Lands, in and adjacent to the Inner Harbour. Five lots were involved, three of which were

upland lots and two of which were submerged land, in the harbour.

The three upland lots were to be developed as condominium apartment sites and the two submerged

parcels were intended for three storey buildings, with shops and restaurants on the ground floor and

condos above. Under the terms of the agreement, PNI dedicated 30% of the land as park and

walkway and spent over a million dollars constructing a seawall, walkway and park improvements, and

48 parking spaces, which would not have been required for the three upland buildings.

The market for condominium apartments was fairly slow in Victoria at the time, and it was not until

1993 that PNI, having constructed its onshore buildings, was ready to proceed with construction of the

two buildings on the submerged lands. Although these buildings were part of a development plan

which was approved by a public process in 1988 and displayed to all the buyers of the upland

condominiums at the time of purchase, there was a tremendous outcry, both from the upland owners,

whose views would have been partly impeded, and also from members of the general public, who

presumably liked the walkway as it was, without any more buildings along it. The response of the

Victoria City Council, (all but one of whose members had been elected since 1988), was to abrogate the

agreement and downzone the land, to allow only one storey buildings, with very limited commercial

uses. The former zoning, and the terms of the agreement, allowed three storey condominiums. PNI

then sued for breach of contract.

As part of its defence, the City of Victoria claimed that PNI had no grounds for its lawsuit, since the two

submerged lots had been unwittingly transferred to the Crown by the action of Section 108(2), Land

Title Act. Sec. 108(2) reads as follows:

108(2) If the subdivided area shown in and included in a subdivision or reference plandeposited in the land title office before or after this section comes into force adjoins

land covered by water, and the land is included in the subdivider’s indefeasible title andadjoins land the title to which is vested in the Crown in right of the Province, the

deposit is deemed to be a transfer in fee simple of the first mentioned land to thegovernment, and the title of the registered owner to the first mentioned land covered by

water is deemed to be extinguished.

Mr. Justice J.C. McKenzie, at the trial, ruled against Victoria, deciding that this section does not apply to

the area within the heavy black outline of the plan. Judge KcKenzie’s ruling was upheld by the BC Court

of Appeals, which decided as follows:

............ the conclusion of the learned trial judge on the merits of this issue is correct.The language of s.108(2) is obscure even by the standards of modern legislation. In R.

in the Right of British Columbia v. Ogopogo Investments et al (1980), 23 B.C.L.R. 43,L.G. McKenzie J. at p.46 described the section as “formidable, if not inscrutable”. If, as

the City contends, the effect of the section on the facts of this case is a deemedtransfer in fee simple to the Crown Provincial, it will have achieved a result that could

fairly be called absurd and unconscionable. The trial judge interpreted the section asnot applying to vest in the Crown title to land which was within the subdivided area.

That is a reasonable interpretation.

This interpretation by the Courts would appear to have no effect on the applicability of Sec. 108(1), and

will primarily affect older plans ,deposited before the use of the words “Returned to Crown”, on plans

was general practice. In a great many old plans, water boundaries are simply labeled, “Mean High

Water Mark”, or “M.H.W”. Only one boundary is shown, and it is generally assumed to be the natural

boundary at the time of the survey. If the natural boundary has moved inward since the previous title

plan was surveyed, there may be a strip of submerged land between the old boundary and the new.

One of the purposes of Section 108(2) was to return this strip to the Crown, retroactively. According to

the recent legal decisions, it appears that the section would still have this effect, so long as the land is

outside the red outline.

Sec. 108(2) was, until the recent court decisions, also assumed to have the effect of transferring

submerged land which was within the red outline to the Crown, at the time of deposit of the plan. This

would include situations where the red outline extended to the original natural boundary and land had

since been eroded, or where the beds of Crown creeks had been mistakenly included in plans. It is this

application which appears now to have been found erroneous by the courts.

Of less direct interest to surveyors, the main component of the PNI v. Victoria decision, after several

years in the appeal courts, was that an agreement made by the Victoria City Council, in 1988, was not

binding on a future council, and Victoria was free to walk away from its contract, despite PNI having

spent over a million dollars on parking and other site improvements.

In Brady v. Zirnhelt, 1998, Brady is the owner of a lakeshore lot, on Opheim Lake, in the Cariboo. The

Brady lot is one of several, created by a subdivision plan, deposited about 1978, and bearing the

notation, “Water Access Only”. Brady and his neighbors have always accessed their lots by means of

an old road, across District Lots 8238 and 8239, which connects with Jacobson Road, an undisputed

public road.

This usage came to an abrupt end when Zirnhelt acquired Lots 8238 and 8239, and closed the old road

to the public. This lawsuit, including a claim for damages, was the result of the closure.

There are four ways, as follows, by which a public road or highway can come into being in British

Columbia:

1) by dedication on deposit of a subdivision plan, under Sec. 107, Land Title Act.;

2) by exemption from the Crown grant, under Sec.2, Highway Act or Secs. 13

and 57, Land Act.;

3) by expenditure of public money on a traveled road, under Sec. 4, Highway

Act, and/or entry on lands by the Minister of Highways, or his servants, for the

purpose of establishing a highway, under Sec. 5, Highway Act; or

4) by common law dedication by the owner, whether private or crown.

This lawsuit is particularly interesting because it deals with all four procedures. In finding one part of the

old road to be public, the Court followed a logic which is new to me and of great interest to all those

other surveyors who may have believed, until 1998, that road notations outside the red (or heavy black)

outlines of plans have no legal effect. While the Court agreed that the road notation, outside the plan,

had no effect under the Land Registry Act, it did indicate that the owner intended to dedicate the road

at common law. Then, according to the Court, all that was required was acceptance through use by

the public to make the road a public road. Since evidence was led at the trial of use by anyone who so

desired between 1949 and 1993, the road was clearly public.

In Swan Lake v. The Registrar, 2000, Swan Lake Recreation Resort Ltd. is the developer of a 201

unit mobile home subdivision. Not wishing to go through the approval process involved in creating a

bare land strata subdivision, Swan Lake attempts to register a 201 unit strata subdivision of a

community mailbox. Each mailbox unit, measuring 40 by 17 by 14 centimetres, will include a parcel of

Limited Common Property, containing 193 square metres and conveniently shaped for the parking of a

motor home.

When the Registrar refused to accept the plan, the developer appealed to the BC Supreme Court. In

supporting the decision of the Registrar, Mr. Justice Cowan pointed out that:

1) Limited Common Property must be ancillary to the strata lot, not the other

way around. While a balcony or parking space is clearly ancillary to a strata apartment

unit, it is ridiculous to conclude that anyone would purchase a mailbox as a primary

holding, with a serviced trailer pad as an ancillary parcel to it.

2) A community mail box is not a building; it is a fixture and thus cannot be

defined as a building on a strata plan.

3) A mailbox does not have floors, walls, or ceilings; it has a bottom, top and

sides. Since, under Section 6 of the Act, strata lot boundaries are defined by the

centres of the floors, walls and ceilings, a mailbox cannot be a strata lot.

In McLeay & Arelis v. City of Kelowna, 2002, McLeay and Arelis own Parcel A, Plan B4694, which

fronts on Mission Creek, in the City of Kelowna. Plan B4694 was deposited in the Land Title Office in

1939. The red outline of the plan includes 1.42 acres of “River Bed”, between the east bank of the

creek, as traversed in 1923, and the 1939 location of the bank.

About 1949, dikes were constructed on both sides of the creek, to contain it to a more or less

permanent channel. In 1997, the City of Kelowna, under license from the Province, constructed a public

pathway, known as the “greenbelt,” along the dike on the east side. This pathway is located within the

area shown as “River Bed”, on Plan B4694. McLeay and Arelis, the plaintiffs, say the greenbelt is on

their property. They claim title to all of the property shown on Plan B4694, including the river bed.

The decision, in the first BC Supreme Court trial was rejected by the BC Court of Appeals, and a new

trial was ordered. At the second trial, Madame Justice Ross determined that the dry land portion of the

disputed triangle, (the part lying between the east bank of the present creek bed and the 1939 “river

bank”), as shown on the sketch, belongs to Mcleay and Arelis. She declared that the portion of public

walkway which trespasses on the property must be closed and blocked off, and that Mcleay and Arelis

are entitled to damages for trespass from the City of Kelowna.

In her Reasons for Judgment, Judge Ross reviews the common law doctrine of ad medium filum aquae

as it applies in British Columbia, and determines that the bed of Mission Creek would have passed to

the grantee at the time of the Crown Grant. She goes on to say:

50) The question is whether in 1961 that land reverted to the Crown by virtue of

the enactment of what is now Section 55 of the Land Act. I have concluded that it did

not.

51) I agree with the plaintiff’s submission that Section 55 is confiscatory in nature

and must be given strict construction. The legislation refers to land below the natural

boundary. In my view, clearer language would be required to bring within the ambit of

the section land that was once, but was no longer, below the natural boundary. Thus,

although the section does have retroactive effect, that effect is limited to apply to land

below the natural boundary, and not, as in the case at bar, to land that in 1961 and at

all times thereafter has been above the natural boundary.

52) It is not necessary, in view of this finding, for me to make a determination with respect to theambit of Section 55 with respect to the bed of a body of water that has moved since the time of theCrown Grant and I do not do so. The ownership of the bed of Mission Creek is not at issue in thislitigation.

Appendix A - Legal Decision Notes

In Anticknap v. Scott, 1913, Page 29, Surveyor Green’s assistant did the survey and plan for attachment

to title for Anticknap. Scott’s surveyor, King, disagreed with this line. Green then corrected his line to

agree with that of King. At the trial, Scott claims both surveyors have disregarded an old post, which

the surveyors say did not exist. The trial judge is satisfied that the surveyors are correct, finds for the

plaintiff and assesses $25 damages for trespass and blockage of a road.

On appeal, the judgment is overturned and a new trial ordered. Appeal court judge says survey

evidence is “hearsay” because both surveys were performed by articled students. He also says that

the trial judge kept inadequate notes for the appeal court judges to fully understand his reasons.

In Johnston v. Clarke, 1884, Page 5, the original surveyor, Saunders, laid out Lots 201 and 202 in 1870,

by traversing the shore line and running out the side boundaries, but without running the back lines, in

such a fashion as to place posts at all the corners with the minimum amount of work. Although the

rear lines were intended to run in an east-west direction, and are shown thus on the Official Plan, the

posts were not placed on an east-west line. In 1875-76, Surveyor Jemmet, surveying District Lots 375-

376-377, commencing from the south, tied to Saunders’ posts, found they were not in a straight line

and proceeded to correct his survey by, (1) placing the southwest corner of Lot 201 due west of the

southeast corner, and, (2), giving Lot 202 its approximate intended acreage by shifting Saunders’

southeast corner to the north and his southwest corner to the south.

Sitting as a trial judge, Mr. Justice Begbie found that the posts in the ground should govern, even

though not joined by east-west lines, except that the owner of Lot 202 was estopped by his actions in

preparing a subdivision plan, in 1880, which appeared to conform to the Jemmet boundaries.

Sitting as a Court of Appeal, the judges determined that there was no estoppel, and that the south

boundaries of the lots were lines joining the posts as set originally, not east-west lines as shown on the

plan.

In Barry v, Desrosiers, 1908, Page 16, all the posts in the block were destroyed by fire 23 years prior to

the trial. On being resurveyed, the block was found to be six inches short of the plan measurement.

By proportioning the shortage over the entire block, Desrosiers’ building was found to encroach 3/4 of

an inch onto the adjoining lot. Held, on appeal, that the encroachment was not proven, as there was no

certainty that the error in the original measurement was evenly distributed among the lots.

In Seippel Lumber Company v Herchmer, 1914, Page 34, Seippel’s predecessor in title had received a

Crown Grant, described by metes and bounds, and had it surveyed. The surveyor made an error,

resulting in the east boundary of the lot being misplaced 34 chains too far west. Although made aware

of the error, the Lands Department decided that the survey location was final and a timber license

abutting the erroneous boundary was issued. Held, where a Crown Grant contains a proper description

which is easily defined on the ground, the Lands Department cannot alter it to declare that the

erroneous line is final.

Nelson v P.G.E. Railway and O.M.I. v P.G.E. Railway, 1918, Page 36, defines two important principles.

The first, in defining the natural boundary of Howe Sound, quotes from the U. S. decision, Howard v.

Ingersoll, 1851, as follows: Neither the line of ordinary high water mark, nor of ordinary low water mark,

nor of a middle stage of water, can be assumed as the line dividing the bed from the banks. This line is

found by examining the bed and the banks, and ascertaining where the presence and action of water

are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the

bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the

nature of the soil itself.

The other important principle is the right of the plaintiffs to compensation for their loss of direct access

to water, even though the railway was built entirely within the limits of the Crown-owned foreshore.

In Lee Mong Kow and Chetham v. Registrar-General of Titles, 1922, Page 43, Plan 858 overlaps Plan 263

by about 100 feet, due to a surveyor’s mistake. Lee Mong Kow registered his title to lots within the

overlap portion of Plan 858 after the Registrar was aware of the overlap. He subsequently sued the

Registrar, claiming $25,000 under the Land Registry Fund on grounds of the Registrar’s “mistake”. After

being successful at the trial court, he lost on appeal, because of the clause in the Act denying

compensation for shortages in content. The Appeal Court confirmed the principle that any claim within

the overlap portion was a nullity, as against the owners of lots within Plan 263.

In Attorney General of Canada and the City of Vancouver v. Gonzalves and Cummings, 1923, Page 50,

the trial judge found that Gonzalves and Cummings had failed to prove 60 years of adverse possession

of a parcel of land in Stanley Park against the Crown. This decision was reversed by the B.C. Court of

Appeals, but reinstated by the Supreme Court of Canada.

In McIntyre v. Haynes,1925, Page 52, Surveyor Patterson discovered an acreage error in his survey of

Lot 158 and re-located the south boundary 19.77 links south of the original location. The owner of Lot

158, and the adjoining owner built a fence along the original line. After a tax sale, and the new owner

claimed the 19.77 link strip, but the Appeal Court found that, after 20 years of open adverse

possession, the land belonged to the adjoining owner.

In BC Hop Company v. District of Kent, 1925, Page 54, a road was surveyed, in 1872, and gazetted, in

1879, across Lot 305, which was then under pre-emption. Lot 305 was Crown Granted in 1884,

without any reservation for highway. In 1895, an agreement was made between the then owner of Lot

305 and the District of Kent, for construction of a road across the Lot on a different location, and this

road was constructed and was in use at the time of the legal action. The court found that, by its

actions in accepting this new dedication, the District was estopped from any right to claim the 1872

road, even though no written agreement to that effect had been made.

In Kipp v. Simpson, 1928, Page 57, Simpson owns the S. E. 1/4 of Sec. 1 and Kipp owns the N.E. 1/4 of

Sec. 1. The Crown Grant Plans show the N.E. 1/4 as bounded on the south by the north bank of the

Vedder River, and the S.E. 1/4 as bounded on the north by the south bank of the Vedder river. The east-

west quarter line, however, crosses the river, and, based on the description independent of the plans,

there is a 4 acre part of the N.E. quarter lying south of the river. The appeal court found that the plans

should govern, and the 4 acre portion belongs to Simpson.

In McDonald v. Knudsen, 1928, Page 57, the owner of the Frac. N.E. 1/4 of Sec. 8 sold, by description, in

1910, a strip of land, 184 feet wide, which was to be bounded on the west by a line drawn parallel to,

and 460 feet easterly from, the west boundary of the quarter. The purchaser asked that it be surveyed

before he took title, so the vendor hired a surveyor and showed the surveyor the NW and SW corners

of the quarter, but, by mistake, identified a 33 ft. witness to the SW corner as the true corner. The

surveyor then surveyed the strip making its southwest corner 493 feet east of the true corner.

In 1911, the vendor sold another strip, 163 feet wide, also described as parallel to the west boundary of

the quarter. This created an overlap, to a maximum of 33 feet, at the south end of the first strip.

After a subdivision of the first strip, McDonald acquired two lots at the south end and built a house on

the overlap area. His action for trespass against the owner of the 163 foot strip was lost at the trial,

but the trial court decision was reversed on appeal. Because the original survey was carried out under

the vendor’s instructions, and because the vendor and original purchaser both based their understanding

of the transaction on posts in the ground, the posts governed despite the admitted mistake in

surveying.

In Clark v. McKenzie, 1929, Page 68, McKenzie built a house, unknowingly encroaching a maximum of 3

1/4 inches onto the adjoining lot. About 15 years later, Clark purchased the adjoining lot, which was still

vacant, discovered the encroachment, and demanded $500 in compensation for the encroachment,

though the price of his lot was only $1500. McKenzie offered $50, and Clark then sued for an injunction

requiring removal of the house. In finding for the defendant, and ordering payment of $50 in

compensation, the judge ruled that, where an encroachment was relatively small, and the cost of

removal of the encroachment very large, then damages were the more appropriate remedy.

In Paul v. Bates, 1934, Page 71, an action between owners of adjoining properties on the shore of a

bay, both of whom were claiming accretions, it was determined that the ownership boundary between

the two accretions should be a line drawn at right angles to a line drawn parallel to the coast and at

such a distance seawards as to clear the sinuosities of the coast, but not so far out as to take in the

whole bay.

In Vantreight v. District of Saanich, 1950, Page 75, an access requirement imposed by the Approving

Officer under Section 86(a), Land Registry Act, must be reasonably relevant to the requirements of the

new parcel. A need for future access to link up roads may not be sufficient.

In Redwood Park Motel v. BC Forest Products, 1953, Page 79, the owners of the motel objected to

the granting, by the Crown, of a foreshore lease for the purpose of log storage, on the grounds that this

might interfere with their common law rights of navigation and riparian access. The judge ruled that the

foreshore lease, as such, did not interfere. If, in using the lease, the forest company did in fact interfere

with the motel owner’s common law rights, then the courts were available for redress.

In Re Land Registry Act re Proposed Subdivision, 1954, Page 80, the judge decided that the Approving

Officer could not refuse approval of a subdivision on the sole grounds that the shapes of two of the

lots might impede future subdivision of these lots.

In Re Land Registry Act re Lot 21, Map 455, 1956, Page 83, the registrar declined to register a

subdivision plan because it contained land “not registered in the register”. It appeared that the water

boundary of the new plan extended further into Kalamalka Lake than the title plan, possibly due to

accretion. The BC Court of Appeals upheld the Registrar. There were a number of issues which needed

to be resolved, possibly through an action under the Quieting Titles Act.

Attorney General of BC v. Neilson, 1956, Page 84, is a Supreme Court of Canada decision which

overturned a trial court decision, which, in turn, had been supported by the BC Court of Appeals. It

involves a very large, (200 ac.) claimed accretion to a 168 acre island in the Fraser River near Vancouver.

As conditions had been changed, in 1924, with construction of a road, testimony as to current, (early

1950s) conditions was deemed to be unhelpful. The main reasons given by the judges in finding that

the area claimed is not an accretion is that, first, it consists of a gradual uprising of the Crown foreshore

, not an attachment to the land, and, second, there is no conclusive evidence that it was manoirable,

(capable of cultivation), at the time the road was built. Since then, the road has influenced the deposit

of soil, and parts may well be upland.

In Re Atlas Copco Canada Limited, 1956, Page 92, the Court decided, on an appeal from a decision of

the Approving Officer, that the dedication of a road allowance along the railway, as a condition of

subdivision, was “necessary and reasonable”, as it was needed as part of a planned continuous

roadway. The appeal was denied.

In Rotter v. Canadian Exploration Limited, 1960, Pages 97 and 106, Rotter is the owner of a parcel of

land, the crown grant of which, issued in 1897, includes the bed of the Salmo River, a non-navigable

stream. Canex is the owner of a parcel, previously subdivided from the Rotter title, which was based

on a reference plan, the red outline of which extends only to the east bank of the river. The trial judge

found that the ad medium filum presumption applies in BC, and that the Canex ownership extends to

the middle thread. The BC Court of Appeals found that, because the Canex title is based on what

appears in the Register, under the Land Registry Act, the presumption does not apply, and the Canex

ownership is limited to what appears on the plan.

On a further appeal, the Supreme Court of Canada reversed the BC Supreme Court decision and re-

instated the trial court decision. Ad medium filum applies, and the Canex ownership extends to the

middle thread.

In Re Land Registry Act re Evans Application, 1955, Page 104, Lot 14, Block 2, in the Old Granville

Townsite, is said to be 66 feet wide. In 1905, a title was issued to the East 26 feet of Lot 14. In 1906,

a title was issued to the West 40 feet of Lot 14. In 1955, the Registrar has declined to register a

conveyance of the West 40 on the grounds that it is not a “good safe holding and marketable title”,

because of potential overlap with the easterly 26 feet. He has indicated that he will accept a

conveyance of “Lot 14, except the East 26 feet.

The decision of the Registrar was upheld by the Court.

In Re Land Registry Act re Heller, 1960, Page 116, Heller was the owner of two lots. He executed a

transfer to his wife in 1949, but the transfer was not registered at that time. In 1958, the wife applied

to register the transfer, and the Registrar, proceeded to issue title. At the time, Heller’s Duplicate

Certificate of Title was not on file, but was erroneously recorded as being on file. No fraud was alleged

on the part of the wife, who presumably did not know that the D.C.T. was not on file.

Heller subsequently applied to the Registrar to have the title cancelled. The Registrar refused. His

decision was reversed on appeal to a BC Supreme Court Judge, but was upheld by the BC Court of

Appeals. The Appeal Court decision was subsequently upheld by the Supreme Court of Canada.

Heller would presumably have had a claim against the Land Title Fund.

In Re Approval of a Subdivision Plan (Delta District), 1960, Page 122, the Approving Officer refused

approval of a four lot subdivision, located on the Tsawassen Bluff, because of the risk of potential land

slides due to erosion, or for other reasons. The developer produced a letter from a soils engineer,

indicating that the land was suitable for “light summer-type cottages.......provided that all measures

necessary for the maintenance of the delicate natural equilibrium of the slopes are applied and rigidly

enforced at all times”.

The judge overturned the Approving Officer’s decision and ordered the plan to be registered. He

determined that the “public interest”, as defined in the Land Registry Act is too broad to cover the

interests of individual lot purchasers, whose land use might not conform to the rather restricted use for

which the lots were suitable.

In Credit Foncier v. Bennett, 1962, Page 126, Credit Foncier seeks an order for foreclosure against Mr.

and Mrs. Bennett. It is common ground that the original mortgage was a forgery, prepared and

registered by a dishonest mortgage broker, who sold it to another broker, who sold it to Credit Foncier,

not being aware that it was forged. The court found that the mortgage was good, in accordance with

the principles of the Torrens system. The Bennetts would have a claim against the Land Registry

Assurance Fund.

In Main v. District of Oak Bay, 1963, page 134, The Mains are the owners of a property which has

access both to Cadboro Bay Road and Beach Drive, in Oak Bay. The District is proposing to erect a

retaining wall, which will prevent access to the property from Cadboro Bay Road. The Mains seek an

injunction to prevent this. In ruling against the Mains, and denying the injunction, the judge remarks that

the Mains have a claim for injurious affection if the work goes ahead, and that their claim would

obviously be reduced in amount if the District were to redesign the project to allow them an access on

some part of their Cadboro Bay Road frontage.

In Re Quieting Titles Act re Bulman’s Petition, 1966, Page 138, Bulman seeks a declaration of ownership

of 166 acres of land adjoining certain land already owned by him on the grounds that they are a true

accretion. The land is situated on the east side of the Thompson River, where it enters Kamloops Lake.

These reasons for judgment include a quotation from the land mark decision , Clarke v Edmonton (City),

as follows: The term “accretion” denotes the increase which land bordering on a river on or the sea

undergoes through the silting up of soil, sand or other substance, or the permanent retiral of the waters.

This increase must be formed by a process so slow and gradual as to be, in a practical sense,

imperceptible, by which is meant that the addition cannot be observed in its actual progress from

moment to moment or from hour to hour, although, after a certain period, it can be observed that there

has been a fresh addition to the shore line. The increase must also result from the action of the water

in the ordinary course of the operations of nature and not from some unusual or unnatural action by

which a considerable quantity of soil is suddenly swept from the land of one man and deposited on, or

annexed to, the land of another.

In ruling against Bulman, and determining that the land in question is vacant Crown land, the judge

determined that the land formed is an alluvial deposit, and has not accreted to the adjacent land, but is

part of a general emergence of land, as sand settled out of the river as it entered the lake, and was

deposited over a broad area.

In Re Calder v. Attorney-General of British Columbia, 1969, Page 148, the Court held that the aboriginal

rights of the Nishga had been extinguished. In the light of more recent decisions, by the Supreme Court

of Canada, in other cases, this case is of only historical interest.

In Frass v. Verigen, 1967, Page 161, Mr. and Mrs. Frass own Lot 7, Block 48, in the City of Nelson, and

Mr. and Mrs. Verigen own Lots 8 and 9 in the same block. A difference of opinion arose as to the

location of the boundary between Lots 7 and 8. The Verigens employed Mr. Affleck, a BCLS, to survey

their lots, while Mr. and Mrs. Frass employed Mr. Johnson, also a BCLS, to survey their lot. The two

surveyors differed in their placement of the lot corners, with Mr. Johnson placing the boundary 1.72

feet east of the position posted by Mr. Affleck. This difference was of great significance, since,

according to the Affleck survey, the Frass house encroached onto the Verigen lot by slightly less than

two feet. According to the Johnson survey, the house did not encroach, though there was a sidewalk

encroachment.

Neither surveyor was able to find original survey evidence at or near the corners in question. Johnson

made extensive ties to undisputed corners in the area, and arrived at his determination of the corners

by pro-rating the shortages which he found. Affleck appears to have relied upon the laying out of plan

measurements from other nearby corners in the area, which he had found or established previously. In

deciding that the corners as defined by Johnson were the true corners of the lot, the Court determined

that Johnson had used the methods as set out in the Official Surveys Act, and that the act applied to

surveys of private lands.

In Re District of North Vancouver Zoning By-Law 4277, 1873, Page 201, an owner who wished to

subdivide his land had several preliminary discussions with municipal officials about his proposed

subdivision. As the discussions proceeded, the municipality decided that it wished to acquire the land

for park. After having discussed purchasing the property, at a price which would have resulted in a loss

to the owner, the municipality proceeded to rezone the property for park purposes. It was determined

by the judge that the municipality was not acting in good faith, and the bylaw was quashed.

In Attorney General for BC v. Miller, 1974, Page 213, Miller was the owner of a parcel of land on the

shore of Kootenay Lake. Title was based upon a survey where the approximate shoreline had been

posted as a series of straight lines. The Attorney General claimed that the ownership was limited to

land within these lines: Miller claimed ownership to the present natural boundary. The trial judge found

in favour of Miller. The BC Court of Appeal reversed the trial court, but this decision was then reversed,

and the trial court upheld, by the Supreme Court of Canada.

In District of North Saanich v. Murray, 1975, Page 220, Murray owns a lot fronting on the ocean and the

District of North Saanich holds a lease on the foreshore in front of the lot. Murray has built a wharf

across the foreshore, with pilings driven into the soil of the foreshore. The District claims that this

constitutes a trespass.

In finding for the District, the trial court and the BC Court of Appeals found that, while the upland owner

has a right to unimpeded access across the foreshore, he has no right to build improvements on the

foreshore without agreement of the foreshore lessee.

In Re Simpson v. City of Vancouver, 1975, Page 236, Simpson wished to subdivide his parcel of

residential land into two lots. The parcel was situated in an area which the City had designated for

future park in its community plan. The Approving Officer refused to approve the plan, under the “public

interest” provision of the Land Registry Act, on the grounds that the subdivision would increase the

value of the land, and thus make its future acquisition for park purposes more costly to the city. In

overturning the decision of the Approving Officer, and finding for Simpson, the BC Court of Appeals

found the Approving Officer’s decision to be “discriminatory”, in that Simpson was being treated

unfairly because of the City’s interest in acquiring his land.

In Re Columbia Estates and District of Burnaby, 1974, Page 244, Columbia estates owns a number of

lots, which are zoned Industrial, where it wishes to build a warehouse. The District of Burnaby wishes

to see them held in reserve, for future development of a “Park and Ride” parking lot, and, accordingly,

rezones them to “Parking District”, so that the warehouse cannot be built. In ordering that the bylaw be

quashed, the judge remarked that the Municipal Act does not empower a municipality to “reserve”

private land for future public use. The land must be purchased by the municipality if it wishes to reserve

it.

In Re Land Registry Act and Cleveland Holdings Ltd., 1973, Page 253, Cleveland proposes to create a

126 lot residential subdivision in the Cheakamus Valley. The lots are located on what is known as the

Rubble Creek fan. Cleveland has appealed the decision of the Approving Officer, who has refused

approval under the “public interest” provision because of the perceived risk of a catastrophic slide at

some future time. Both Cleveland and the Approving Officer have produced testimony from extremely

well qualified experts in geology and engineering. The experts on behalf of the Approving Officer have

opined that there is a certainty of a catastrophic slide at some future time, though the time scale may

extend into the thousands of years. The experts testifying on behalf of Cleveland have indicated that

the chance of such a slide occurring is extremely remote, but not impossible. In upholding the decision

of the Approving Officer, the judge finds that the decision is within his power, under the “public

interest” provision. It is notable that the judge refers to two previous “public interest” decisions of

approving officers, both of which were overturned, but finds that this one is different because of the

potential, even though remote, for the loss of human life.

In Re Quieting Titles Act and an Accretion to Lots A to E, Plan 21387, 1974, Page268, the owners of

Lots A to E claim an accretion of land above the natural boundary of Okanagan Lake. Their surveyor

has defined the natural boundary by establishing a line at the controlled maximum elevation of the lake.

In finding against the applicants and rejecting their claim, the judge remarks that the surveyor has failed

to take into account the effect of wind and waves, and that he should have examined the bed and the

banks, and defined the natural boundary in accordance with Sec. 2(n) of the Land Act, (as it then was,)

as follows:

“natural boundary” means the visible high water mark of any lake, river, stream or

other body of water where the presence and action of the water are so common andusual, and so long continued in all ordinary years, as to mark on the soil of the bed of

the body of water a character distinct from that of its banks, in vegetation, as well as inthe nature of the soil itself.

In Baillie v. Leggett, 1975, Page 270, Leggatt, a BCLS, in carrying out a survey for Mrs. Baillie’s neighbor,

has cut some trees on the Baillie property and left the site in a somewhat disordered state. In finding

for Baillie and fixing damages at $750 plus costs, the judge found that, while the surveyor had the right,

under the Trespass Act, to enter upon and cross the plaintiff’s property, he was responsible for actual

damage.

In A Constitutional Reference, 1976, Page 275, the BC Court of Appeals concluded that the subsurface

land under the Strait of Juan de Fuca, the Gulf of Georgia, Johnstone Strait and Queen Charlotte Strait

are the property of the Province, not of Canada, as these lands were part of the province before BC

joined Canada in 1871.

In H.M. the Queen v. Ogopogo Investments Ltd., 1980, page 289, Ogopogo is the owner of two

apartment buildings, situated on adjacent parcels of land. When the buildings were built, Ogopogo

obtained permission from the Water Rights Branch to “straighten out” the creek, and built on part of the

former creek bed. In this action, the Crown is successful in claiming title to the former creek bed. The

owners may obtain title to a dry creek bed, but this does not occur automatically, and can occur only

by means of an action under the Quieting Titles Act, or through procedures involving consent from the

Crown.

In Monashee Enterprises Ltd. v. Prov. of BC, 1981, Page 295, the Crown is the owner of a one chainstrip of land lying between the Monashee land and the Pacific Ocean. The BC Court of Appeals foundthat, although the natural boundary of the one chain strip may move inward or outward, as a result oferosion or accretion, the upland boundary of the strip is not affected, and remains in its original location.