Purchasers of land in Haliburton situated on water are fully aware that the public has the right to use the water in front of their lands. This legal right arises from a reservation in the first deed. When the Crown initially conveys land to an original owner (the Crown patent), the Crown usually reserves certain rights. One usual reservation is the public right to “the free use, passage and enjoyment of in, over and upon all navigable waters” situated along the land conveyed. The issue of navigability may arise along a river when a canoeist is faced with a natural obstruction to passage because of rapids, or a water fall, or a fallen tree. The courts have held that the public right of passage on navigable waters does not carry with it a public right of portage across a person’s lands to avoid the obstruction. The public right permits passage along the river to the extent that passage is possible. If a natural obstruction prevents passage, the right of public passage remains although it may not be exercisable. Frustration of the ability to pass along the river cannot give rise to a separate and distinct right to go onto the land of a private landowner.
Another reservation in the Crown patent, not as well known, relates to fishing. The Crown reserves “the right of access to the shores of all rivers, streams and lakes for all vessels, boats and persons together with the right to use so much of the banks thereof, not exceeding one chain in depth from the water’s edge [66 feet], as may be necessary for fishery purposes.” As a result of this reservation, the public may enjoy fishing from the shoreline in front of your lands. However, the fishing reservation does not give the public the right to cross over your land to reach the shore of the water. The only right of access to the shoreline is from the navigable waters.
A direct incursion on your land may be caused by a portage route. Section 65 (4) of the Public Lands Act has codified the common law in this area. This section provides that a portage route, which existed prior to the sale of the land by the Crown to the original owner, is protected and that any person travelling on waters connected by the portage has the right to pass over lands from one body of water to another body of water. The section reads: “Where public lands over which a portage has existed or exists have been heretofore or are hereafter sold or otherwise disposed of under this or any other Act, any person travelling on waters connected by the portage has the right to pass over and along the portage with the person’s effects without the permission of or payment to the owner of the lands, and any person who obstructs, hinders, delays or interferes with the exercise of such right of passage is guilty of an offence.” That right carries with it the right to maintain the portage route if, for example, it is obstructed by a fallen tree.