In the middle of such a cold winter it’s hard to think about water. But in a few months, snow and ice will be melting and rivers and streams will be overflowing. Every spring brings a new wave of people affected by the changing waterways, particularly following winters with heavy snowfalls. Heading into the fall, most of Ontario was wet. It was a wet summer in most places which kept normally dry creeks and streams, flowing strong in August and September. This meant more mosquitoes (As late as Thanksgiving on Lake Superior we had to use bug spray) and, more importantly, means that the ground was likely fairly well charged with water when everything went into deep freeze. With the ground filled with water and the significant snowfall we’ve had in most of the province this year, we can probably expect a lot of flooding this spring, bringing with it damage and, no doubt, disputes.
So let’s do a refresher on riparian rights and how they can help us understand how we can protect our land in the face of flooding and protect our water in the face of measures taken to mitigate that flooding.
There are four relevant rights that will attach to any property that abuts a waterway.
Right to Quantity – Riparian landowners have rights to customary flows of water entering and exiting their property.
Right to Quality – Water should enter and leave a property in its natural state.
Right to Proper Drainage – Water should be properly drained onto and off of a property.
Right to Accretion/Erosion – As the waterways naturally change levels, the land exposed by natural drops in water levels become should become property of the landowner. Similarly, as shoreline is eroded this land is lost to the bed of the waterway and becomes property of the Crown. Note that for most waterways in Ontario, issues with these rights are mostly avoided based on the use of the ‘high water mark’ to determine property (vs. the use of the waters edge).
The applicability of each of these rights will depend on the jurisdiction you live in. While Ontario law recognizes, at least in part, these rights, other jurisdictions have overridden some or all of these rights with specific legislation. All these rights can be relevant when trying to protect your land or your water from flooding and/or contamination.
Disputes around flooding are based in a numbers of different causes of action. Everything from beaver dams restricting flow, to improper/negligent release of blocked water/ice dams can cause an infringement of riparian rights. It is important to know your rights as a landowner on a waterway. Not only flooding/restiction of flow but also water contamination can infringement those rights. Those with the proper understanding and advice on their rights will be able to best ensure their water-front property remains a natural and pristine piece of paradise.