Worst Neighbour in Alberta? Riparian Rights

[SnipeHunter]

I thought this was interesting. How were they able to string it along so long?

Calgary Herald - Court upholds ruling against fence on Bearspaw pond in neighbours' spat

Calgary Herald - Don't fence me in: Five-year battle over fenced off pond in Bearspaw ends with legal splash

Appeal Ruling

[Trochu]

“My privacy has been totally destroyed because of this decision.”

"McDonald said the reservoir was primarily planned to be used for livestock..."

I'm 100% certain Tim won't mind.

[bat119]

She and another neighbor who joined the legal challenge have already spent hundreds of thousands of dollars in the six-year battle and she hopes the ruling from Alberta’s superior court will finally put an end to the conflict.

some people have way too much time and money on their hands

[YYC338]

Meh, drop the water level a couple of feet. Make the neighbors property dry land and it's case closed.

[Grizzly Adams]

Originally Posted by bat119

She and another neighbor who joined the legal challenge have already spent hundreds of thousands of dollars in the six-year battle and she hopes the ruling from Alberta’s superior court will finally put an end to the conflict.

some people have way too much time and money on their hands

Riparian rights on a man made lake ? Time to lower the water level , just a little bit. Gotta wonder what the other neighbor's interest is in this, since apparently only one property is affected?

Grizz

[roughneckin]

Originally Posted by bat119

She and another neighbor who joined the legal challenge have already spent hundreds of thousands of dollars in the six-year battle and she hopes the ruling from Alberta’s superior court will finally put an end to the conflict.

some people have way too much time and money on their hands

That’s the person fighting it though. They planned on using the water for various activities and land in the Bearspaw area isn’t exactly cheap so losing this would probably cost them more than that on the sale value.

[YYC338]

Originally Posted by roughneckin

That’s the person fighting it though. They planned on using the water for various activities and land in the Bearspaw area isn’t exactly cheap so losing this would probably cost them more than that on the sale value.

Based on where the fence is, the neighbor that wants it removed has less than 5% of the surface area of the reservoir on their property yet wants access to all the water for recreation purposes.

Pretty nervey. Like I said, time to drop the level a couple of feet, rebuild the fence on dry land and tell the "water sports" neighbor to pound sand.

[roughneckin]

Originally Posted by YYC338

Based on where the fence is, the neighbor that wants it removed has less than 5% of the surface area of the reservoir on their property yet wants access to all the water for recreation purposes.

Pretty nervey. Like I said, time to drop the level a couple of feet, rebuild the fence on dry land and tell the "water sports" neighbor to pound sand.

Pretty sure the owner isn’t planning on taking their wakeboard boat out on the pond, but rather some pretty non intrusive paddling once in a while or a random skate. What happens when other flooded portion of land that has become a legal waterbodies land end?
If this person legitimately wanted to use it to water 5 head of livestock a couple kayaks in the after every week isn’t going to endanger that. This is an act of pure vengeance for someone.

[YYC338]

Originally Posted by roughneckin

Pretty sure the owner isn’t planning on taking their wakeboard boat out on the pond, but rather some pretty non intrusive paddling once in a while or a random skate. What happens when other flooded portion of land that has become a legal waterbodies land end?
If this person legitimately wanted to use it to water 5 head of livestock a couple kayaks in the after every week isn’t going to endanger that. This is an act of pure vengeance for someone.

First it's a couple of kayaks, then it's 5 or 6 or more. A random skate becomes weekend skating parties. Where's the limit and when is enough enough? You give some people an inch and they'll take the whole ruler and rap you on the knuckles with it.

They seem to want rights that are disproportional with the very small postage stamp of water on their property.

If it were me I'd lower the level if I could and call it a day. Don't have to worry when enough is enough after that.

[Ken07AOVette]

What a loser. Arrogant entitled moron. Like that woman in the states that has a Facebook forum in her 'honor' for screaming ando threatening fishermen that fish anywhere near her dock.

[bloopbloob]

I'd be out there late at night, with a battery powered reciprocal saw. Repeat as needed... or a chain around the posts and full throttle....probably a better idea so you don't have stumps... If i was privileged enough to live lakeside one day, ain't nobody taking that away from me!

[FishOutOfWater]

The way I see it (and I'm pretty sure the law does too, given the outcome), nobody has sole rights to any body of water unless it's completely surrounded by their property (except a body of water that has navigable waterways leading into &/or out of it).

They had no right to install that fence, and comments suggesting "dropping the water level a foot or two" is just plain selfish and childish. I'd be calling a water tanker to pump it back in and sending you the bill.

Some people...

[javlin101]

Originally Posted by FishOutOfWater

The way I see it (and I'm pretty sure the law does too, given the outcome), nobody has sole rights to any body of water unless it's completely surrounded by their property (except a body of water that has navigable waterways leading into &/or out of it).

They had no right to install that fence, and comments suggesting "dropping the water level a foot or two" is just plain selfish and childish. I'd be calling a water tanker to pump it back in and sending you the bill.

Some people...

Thank you for some common sense sir!

[YYC338]

Originally Posted by FishOutOfWater

The way I see it (and I'm pretty sure the law does too, given the outcome), nobody has sole rights to any body of water unless it's completely surrounded by their property (except a body of water that has navigable waterways leading into &/or out of it).

They had no right to install that fence, and comments suggesting "dropping the water level a foot or two" is just plain selfish and childish. I'd be calling a water tanker to pump it back in and sending you the bill.

Some people...

I don't believe it's a natural water body. It's a man made reservoir for specific purposes.

The question would be for what purpose and built by whom and on who's property does the "dam" exist, and can they control the level.

The owner of the postage size piece of water on their property has right of access because it's on their property. The courts have ruled that way so far.

If the water level were to drop so that none of the water body existed on their property I'm guessing thay'd be SOL with respect to access.

I guess you could bring in numerous water tankers and try and keep up with the constantly receding water level, although the county may take a dim view of that, who knows.

[roughneckin]

Originally Posted by YYC338

I don't believe it's a natural water body. It's a man made reservoir for specific purposes.

The question would be for what purpose and built by whom and on who's property does the "dam" exist, and can they control the level.

The owner of the postage size piece of water on their property has right of access because it's on their property. The courts have ruled that way so far.

If the water level were to drop so that none of the water body existed on their property I'm guessing thay'd be SOL with respect to access.

I guess you could bring in numerous water tankers and try and keep up with the constantly receding water level, although the county may take a dim view of that, who knows.

1st off the courts already agreed with riparian rights.
2nd if the owner wanted to empty the water to low enough that the other owner in question no longer had water in their “postage stamp” they could still access it as it’s below the high water mark.
3rd pumping it out would require a TDL which the government would ask why they wanted it. I’m pretty sure petty squabbles aren’t on the list personally.

The courts will never overturn this otherwise we’d all better start buying some really nice access to water if we ever want to fish again, or start paying big dollars for access.

[Grizzly Adams]

Originally Posted by bat119

She and another neighbor who joined the legal challenge have already spent hundreds of thousands of dollars in the six-year battle and she hopes the ruling from Alberta’s superior court will finally put an end to the conflict.

some people have way too much time and money on their hands

People who live in Bearspaw aren't short on cash. I'm thinking this goes back to Rockyview' s liberal subdivision policy. Somebody approved an acreage on the edge of somebody else's dugout without fully understanding the consequences.

Grizz

[fordtruckin]

They walk amongst us!!

[urban rednek]

Originally Posted by Grizzly Adams

People who live in Bearspaw aren't short on cash. I'm thinking this goes back to Rockyview' s liberal subdivision policy. Somebody approved an acreage on the edge of somebody else's dugout without fully understanding the consequences.

Grizz

How about somebody built a dugout that encroached on land they did not own? Or, how about somebody bought a property with a dugout they expected to have sole use of, without purchasing all of the surrounding land?
The courts finding is just. Too bad it took this much time and money for the law to be verified.

[Grizzly Adams]

Originally Posted by urban rednek

How about somebody built a dugout that encroached on land they did not own? Or, how about somebody bought a property with a dugout they expected to have sole use of, without purchasing all of the surrounding land?
The courts finding is just. Too bad it took this much time and money for the law to be verified.

Check out Bearspaw on Google Earth, the area is covered with small water bodies, surrounded by acreages. You can see docks on many of them, betting this an enhanced one of these. There is a geological name for this type of terrain, but the name escapes me. Just a small part.



Grizz

[YYC338]

Originally Posted by urban rednek

How about somebody built a dugout that encroached on land they did not own? Or, how about somebody bought a property with a dugout they expected to have sole use of, without purchasing all of the surrounding land?
The courts finding is just. Too bad it took this much time and money for the law to be verified.

Let's just say they did build the dugout. Do they not have the right to curtail the existence of the dugout and turn it into pasture?

If they do, do they also not have the right to reduce it in size, to let's say half. Again this could be a man made structure and not a natural water body.

Would the water sports neighbor still have right of access to the now dry land because it was once below an assumed but possibly never surveyed high water mark? Does a "high water mark" claim even hold any water (pun intended) if this is a man made structure.

Possibly the water sports neighbor could have an issue and case for encroachment, but they'd look pretty stupid putting that one forward while they're fighting for access to the water.

The court gave them access to the water because a portion of the water is/was on their land. If that were to cease, let say from ten years of severe drought do they have access and the ability to cross onto their neighbors land, let's say for a couple hundred feet to access the remaining water for their recreation purposes?

A lot of questions and I don't have the answer to any of them and I doubt a lot of people here do either. Lots of opinions though. Some resorting to intentional property damage and possibly worse. I think most of us understand that's people talking in the on-line persona and wouldn't have the stones to do any of that in the real world when faced with the possibility of a criminal record.

Quick likely a lot more to this story than has been reported and anyone on here knows for sure also.

[SnipeHunter]

Originally Posted by YYC338

Let's just say they did build the dugout. Do they not have the right to curtail the existence of the dugout and turn it into pasture?

If they do, do they also not have the right to reduce it in size, to let's say half. Again this could be a man made structure and not a natural water body.

Would the water sports neighbor still have right of access to the now dry land because it was once below an assumed but possibly never surveyed high water mark? Does a "high water mark" claim even hold any water (pun intended) if this is a man made structure.

Possibly the water sports neighbor could have an issue and case for encroachment, but they'd look pretty stupid putting that one forward while they're fighting for access to the water.

The court gave them access to the water because a portion of the water is/was on their land. If that were to cease, let say from ten years of severe drought do they have access and the ability to cross onto their neighbors land, let's say for a couple hundred feet to access the remaining water for their recreation purposes?

A lot of questions and I don't have the answer to any of them and I doubt a lot of people here do either. Lots of opinions though. Some resorting to intentional property damage and possibly worse. I think most of us understand that's people talking in the on-line persona and wouldn't have the stones to do any of that in the real world when faced with the possibility of a criminal record.

Quick likely a lot more to this story than has been reported and anyone on here knows for sure also.

That's why I attached the actual appeal ruling which in turn links to the earlier decision.

The beds and shores of the original stream and slough in Twelve Mile Coulee belonged to the Crown under s. 3(1)(a), as they were permanent and naturally occurring.[1]. The appellants argue, in effect, that once the dam was built and the reservoir filled up, the Crown lost its title to the bed of the stream and the slough.

[13] When the dam was built, that caused the slough to become deeper, and it had the effect of allowing the stream to overflow its banks and encroach upon the adjacent lands. It is likely that in the years before the dam was built the creek would ebb and flow and perhaps flood as the seasons changed, but the construction of the dam would make the enlargement of the stream more permanent and stable. Even though the dam was the result of a human act, s. 3(3) provides that the stream and slough still qualify as being “naturally occurring”. Section 3(3) complements the common law of accretion. While the doctrine of accretion generally requires a gradual and imperceptible increase in the lands, accretion can result from human activity: Clarke v Edmonton (City), 1929 CanLII 38 (SCC), [1930] SCR 137 at p. 144; Southern Centre of Theosophy v South Australia, [1982] AC 706 at p. 720 (JCPC). Since the statute preserves the status of a naturally occurring body of water despite human intervention, the result is that the construction of the Pedersen dam effectively altered the boundary of the appellant’s property.
[14] It follows that the construction of the dam by the parties’ predecessor in title had the effect of vesting the bed of the Pedersen reservoir in the Crown. If the dam was ever removed, and the creek retreated to its original banks, the flooded land would revert to the adjacent owners through the doctrine of accretion and recession: B. Ziff, Principles of Property Law (7th ed), Toronto: Thomson Reuters, 2018 at pp. 131-3; Andriet v Alberta, 2008 ABCA 27 (CanLII) at para. 32, 86 Alta LR (4th) 113, 433 AR 329; Lack v Alberta (Sustainable Resource Development), 2011 ABQB 379 (CanLII) at paras. 57, 63, 527 AR 11.
[15] It follows that there are different sources of the legal rights to water, and to the beds of water bodies. Where a water body is “naturally occurring” both the water and the bed will belong to the Province, even if the water body has been “diverted by human act”. Where the water body is not naturally occurring, the bed of the water body will belong to the holder of the title to the land, but the water will still belong to the Province. In this appeal, the Pedersen dam is the result of human act, but the reservoir behind it is still considered “naturally occurring”. It follows that the Province owns the bed of the Pedersen reservoir.

[Grizzly Adams]

Too bad they couldn't just get along, somebody had a grudge?

Grizz

[Immigrant]

This story reminds me of the day when I fenced in one of my 1/4 sections to put more cows in. My neighbor was furious that I did not put a gate in so he could access MY (deeded) LAND (note deeded, not lease or road allowance), and that he was not consulted. The “have not” will always try and ride the coattails of the “have”, thinking they are entitled to the things other people have worked hard to attain. There is definitely more to the story. I feel for the landowner that “lost” in this lawsuit.
The “winner” essentially gained free use of property they did not purchase or pay taxes on.

[Ken07AOVette]

Originally Posted by Immigrant

This story reminds me of the day when I fenced in one of my 1/4 sections to put more cows in. My neighbor was furious that I did not put a gate in so he could access MY (deeded) LAND (note deeded, not lease or road allowance), and that he was not consulted. The “have not” will always try and ride the coattails of the “have”, thinking they are entitled to the things other people have worked hard to attain. There is definitely more to the story. I feel for the landowner that “lost” in this lawsuit.
The “winner” essentially gained free use of property they did not purchase or pay taxes on.

It's not land

[YYC338]

Originally Posted by Ken07AOVette

It's not land

Looks like it will be again if the dam is removed. I'm still not clear on what happens if the dam is modified to lower the level and remove the water from the neighbors property. Possibly only access in the event of high water situations if and when it comes back onto their land?

Likely the owner of the bulk of the reservoir wanted an all or nothing ruling. IE: keep the level as is and retain the right to limit access on their own portion. But who knows for sure. That certainly didn't fly with the courts (so far). Possibly more to come on this story but I think I know what I'd do if I was in their position.

[Immigrant]

Originally Posted by Ken07AOVette

It's not land

water/land....same difference. They still have free access to the “losers” property that is covered by a lake, and free use of 100% of the lake, even though their property is only 10% of the lake.

[ssyd]

If they'd been willing to talk and get along with each other, maybe a solution would have been to build the fence on Ms. Erik's side of the pond with a gate so they could still access the pond. Too late for that now. Or perhaps I'm just being gullible that the fence was just for livestock control.

[Ken07AOVette]

Originally Posted by Immigrant

water/land....same difference. They still have free access to the “losers” property that is covered by a lake, and free use of 100% of the lake, even though their property is only 10% of the lake.

Well actually it's not the same. Land is clearly identified by survey markers. When water is on adjoining property it's a different ball game, as per the court ruling.

[leeelmer]

The problem here was clearly stated in the court documents.
They lost their sence of privacy

The plaintiff was using the entire pond paddleing right by his house and skating right up to it.
That was the issue. They paid big cash to be secluded with a large pond without being able to see their nabours.
Then people moved in and were using the entire waterway right upto their house.
This ****ed them off and they built a fence.
That inturn ****ed off the nabours as they had thought they could buy their little piece of paradise on a "lake" only owning a fraction of it.
I see both sides. But there must have been a pile of crap go on before spending this kind of cash

[creeky]

Originally Posted by Grizzly Adams

Check out Bearspaw on Google Earth, the area is covered with small water bodies, surrounded by acreages. You can see docks on many of them, betting this an enhanced one of these. There is a geological name for this type of terrain, but the name escapes me. Just a small part.



Grizz

Knob and Kettle Terrain.


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