IT'S OVER! Attorney General's lawsuit against Towntree
By Patricia O'Driscoll
March 15, 1994: "All Government Claims Dismissed"
The Government of Ontario's (plaintiff's) claim of ownership of the beach and part of 14 waterfront properties at Rowntree (RBA) (defendants) in Tiny Township was dismissed by the trial judge, The Honourable Mr. Justice R. Jeffrey Flinn of the Ontario Court of Justice (General Division). The judge's decision was set out in 44 typewritten pages.
Property owners' deeds of ownership were upheld by the court and all Government claims were dismissed. The trial judge granted RBA's counterclaim that RBA owned its land to the water's edge.
April 11, 1994: "Government Announces No Appeal"
The Government of Ontario released a news communique indicating that "after a thorough review of the court decision issued by Mr. Justice Flinn, the Ministry of the Attorney General and the Ministry of Natural Resources have concluded that there are insufficient grounds to appeal."
Stripped of its legalese, what does all this mean? Simply this: the Government went to court with a "theory" and the judge didn't accept the theory. After reading the judge's decision, the Government realized that it had no case and that an appeal would be a waste of time and taxpayers' money.
June 1990: Lawsuit Started
The AG/MNR for Ontario started the lawsuit against RBA and claimed ownership of the strip of land lying between the water's edge of Nottawasaga Bay and a wiggly line as shown on a plan of survey, dated 1823, and called the 'line of the wood'. The Government claimed that the 'line of the wood' formed the western boundary of the township lots at Rowntree Beach and for the 16 miles from concession 3 to concession 19.
July 1991: Other Property Owners Notified
The AG had done nothing to advise other property owners within the 16 miles of its claim. RBA asked the court to order the AG to advise potentially affected property owners of the claim. The court recognized the potential adverse implications of the AG's lawsuit for the property owners along the 16 miles of shore and ordered that some 2000 shoreline property owners be notified.
May - July 1993 - The Trial
The AG/MNR called surveyor witnesses who put forth their theory of Crown ownership of the strip of land lying between the water's edge of Nottawasaga Bay and a wiggly line shown on the 1823 survey and known as the 'line of the wood'.
In the Statement of Claim, the AG/MNR claimed ownership of the "strip of land" Wbetween concession 3 and concession 19. However, at trial, the AG/MNR surveyor witnesses claimed that the 'line of the wood' theory applied along the entire perimeter of Tiny from concession 1 to Penetanguishene.
It was the position of RBA that, in 1866, the land in question had been granted to the water's edge by patent (the original deed from the Crown). Therefore, the water's edge was the westerly boundary of lot 18, concession 11, the land in dispute (Rowntree Beach). Further, it was the position of RBA that the original Crown patents deeded (sold) all township lots to the water's edge.
What Did the Judgment of the Court Do?
(a) The judge's decision dismissed all Government claims.
The Crown didn't lose any land because the court ruled that the Crown had patented or sold it many, many years ago. There is no unpatented Crown land on the western shore of Tiny. The Crown still retains ownership of Awenda Provincial Park located in Tiny.
(b) The judge found that all township lots go to the water's edge.
As a result of the lawsuit, no lands have changed hands. All existing registered deeds have been upheld. Property that was in private ownership still is. If the Township owned a piece of property, it still does. Property deeds held by the Township have been preserved.
(c) The trial judge allowed Rowntree's counterclaim and granted a declaration that RBA owns its land to the water's edge.
RBA did not gain anything. RBA owns the same amount of land it did when the Attorney General started the lawsuit in 1990.
The Judge's Conclusions:
"Goessman [the original surveyor] was required to survey the whole township to the water's edge and he did."
The trial judge accepted the surveying evidence introduced by RBA and did not accept the surveying theories put forth by the AG's witnesses.
The trial judge declared that owners of the lands subdivided as Registered Plan No. 750 (RBA) "own and have title to the water's edge of Nottawasaga Bay subject to the right of free access to the shore of Lake Huron for all vessels, boats and persons."
The 'line of the wood' was ignored and not given any survey validity by solicitors or surveyors for more than 100 years.
The 'line of the wood' was not shown on any of the 60 plans of subdivision of lands abutting Nottawasaga Bay prepared and registered by licensed surveyors since 1920.
During the 1980s, the government gave certificates of title to a number of plans of subdivision along Nottawasaga Bay, all of which ignored the 'line of the wood'.
The trial judge stated: "Through the 1960's and 1970's the evidence indicates varying attempts on the part of a number of departments of the Government of Ontario to espouse public ownership of the beaches of Nottawasaga Bay. A fair reading of these documents leads one to conclude that these attempts were not supported by a strong legal opinion."
The "Hereafter": The basic issue in the lawsuit was "title" or "ownership" of the shoreline property between the water's edge and the undefined 'line of the wood'. The judge found the township was surveyed to the water's edge; he dismissed all claims of the 'line of the wood'. The judge found that the strip of land was part of the township lots and was sold by the Crown when it granted the patents (deeds) many, many years ago.
We know what the judge has found. All Tiny Township lots were surveyed to the water's edge. We know that most of the Crown patents (deeds) on the western shore of Tiny have the same wording as the 1866 patent for Lot 18, Concession 11 (Rowntree Beach). Logic dictates that wherever a patent (Crown deed) is similar to the one at lot 18, concession 11 (Rowntree), the same result should follow, subject to the particular circumstances and occurrences that affect any particular shoreline area. In July 1991, the Court ordered the AG to notify 2000 shoreline property owners on the western shore of Tiny that title to their property could be adversely affected, IF the AG won the lawsuit. The AG/MNR didn't win; those beaches are in an "as you were position".
The court has stamped Rowntree's deeds "VALID". There is no appeal. Using the AG v MNR decision as a precedent, other shoreline owners should seek the advice of a knowledgeable lawyer and make sure their own "house" is in order.