PRIVATE PROPERTY INTERESTS IN SHORELINE LAND IN NEWFOUNDLAND & LABRADOR.

• Author: French, Gregory

Abstract

For over 130 years, Newfoundland law has recognized a reservation of land bordering on bodies of water, known as the "foreshore". There has long been public interest in acquiring good title to waterfront land, particularly the foreshore directly at the water's edge, and contrarily, there is significant public interest in the preservation of the public nature of the water's edge. This paper will explore the doctrine of adverse possession against Crown Land as it relates to the foreshore, the impact of personal ownership rights, obtaining good title, and the effect of erosion and climate change on ownership interest in waterside lands.

1. Introduction

   Newfoundland's history is inexorably entwined with the sea. The wealth of the Grand Banks fishery first brought settlement to the island, and for centuries, the fishery was the dominant, if not only, industry. Hundreds of communities, and thousands of citizens, relied on the fishery for a livelihood and for simple survival. With such reliance on the bounty of the ocean, the lands which are directly adjacent to the ocean have long been the most valuable. From the earliest days of settlement, ocean shoreline has been at a premium in Newfoundland, particularly in sheltered harbours and other suitable ports for vessels. The first settlements in Newfoundland arose due to itinerant crewmen setting up camp in advantageous ports of the island for use in the seasonal fishery, which led to a widely dispersed pattern of settlement along the coastline of the island. (1)

   Efforts to control settlement and occupation of Newfoundland were absolutist and refused to recognize any proprietary interest in land by the settler population. (2) In particular, shoreline lands were expressly reserved for use in the fishery, and private ownership and occupation was prohibited by law. (3) This would continue until the early 19th century, when the resident population of the colony had reached a tipping point and settlers' rights and interests could no longer be ignored.

   Ultimately, by 1824, Crown Grants became available throughout Newfoundland, thus recognizing and making officially available an ownership interest in lands in the Colony for its resident population. (4) As can be anticipated based on the distribution of settlement, the vast majority of grants were made in coastal areas, to land adjacent to the ocean.

2. Crown Grants and Shoreline Reservations in the 19th Century

   Throughout the first decades of granting land interests, the Newfoundland government seemed to place few conditions on the geographic scope of land available for alienation. Settlers interested in obtaining grants to waterside lands could apparently obtain a grant to land right to the water's edge. (5) In a colony that relied upon the fishery almost exclusively, this would seem to be a common-sense proposition; after all, beyond the limits of the urban St. John's area, the vast majority of the population worked in the fishery. Owning land abutting the water was a matter of practical necessity for those who would be launching boats at sea or coming ashore with fish to salt and dry. Indeed, the government granting of an ownership interest in such land would seem to accord with the history of settlement and reconciling established interests within the later-developed legal system of the Colony. (6)

   A review of the bound volumes of Crown Grants at the Crown Lands Registry in St. John's provides some insight into the scope of granting land in the middle of the 19th century. The earliest whole bound volume in the Registry is Volume 8, which includes grants from the late 1850s to mid-1860s. (7) The majority of grants that appear in this Volume make no reservation along the bank of any body of water--fresh or salt; such reservations are very much the exception rather than the rule. Those grants that do reserve the shoreline are on the eastern half of the island and are generally in populated areas or areas of longstanding settlement. (8) Longstanding population, however, is not a determinative factor in reserving the shore; other grants in this Volume, to coastal land at St. Mary's Bay, Trinity Bay, Bonavista Bay, Fortune Bay and Conception Bay, run right to the shoreline and follow the shoreline as a boundary, and these are some of the oldest settled areas of Newfoundland. Nor are the reservations determined by whether they border freshwater or saltwater--some reservations are made in both instances. Contrarily, grants in the same Volume are made up to the water's edge and follow the shoreline of both freshwater and saltwater bodies. The logic to these particular reservations is not clear and may reflect the unique population patterns of these areas, the use of the land itself prior to being granted, or the necessity in those instances to preserve for public use. There does not appear to have been a universal rule imposed by Crown Lands in this period as to when a reservation would be imposed and when the land would be freely granted to the water's edge.

   Two particular grants from this Volume warrant mention and perhaps give some insight into the reasons for sporadic preservation. A grant to James Clift et al, dated May 28th, 1861 includes a significant amount of land at Boot Harbour Bight, Hall's Bay. (9) This land includes both the banks of a river and the coastline along Hall's Bay. A peculiar reservation in this grant, not observed in other grants, notes that the grant is made for the purposes of a mill, and shall not interfere with private property or fishery rights. The preservation of fishery rights in this grant hearkens back to the ancient statutes preserving Newfoundland's shoreline for the use of the fishery. (10) It may be that public access to the shoreline, where public access had previously been exercised and noted, warranted the reservation in these instances. Secondly, a grant to one George Greenland of land at Coley's Point, Conception Bay, dated June 24th, 1861 runs inland but near the coast and is bounded on the coastal side by a "Fishing Room" occupied by the same George Greenland. (11) By 1861, the concept of the "Fishing Room" was relegated to history, and certainly so by the enactment of the Newfoundland Fisheries Act. The reference is curious but seems to indicate a continued adherence to the notion of the reservation of the shoreline to the fishery, rather than to freehold interests. In this particular instance, it is impossible to know why the reference remained. Both grants indicate a focus on fishery access to the shoreline, whether by a prohibition on interference or preservation of shoreline already dedicated. Perhaps these considerations did not apply when dealing with virgin shoreline.

   The turning point on the regular and standardized imposition of shoreline reservations appears to be in late 1883. The first such grants appear early in Volume 30, and specifically in Folio 10, where the grant defines the boundary as the shoreline, but the survey sketch denotes a "Public Reservation 30 feet wide". (12) The grants immediately preceding Folio 10 in the same volume, which are bounded by the shoreline, do not make any express reservation. (13) Subsequent grants, registered after Folio 10, do not specifically identify the location of a right-of-way or reserve the shoreline, but make a written provision that the grant is made "reserving a public road running through the same thirty feet wide where required". (14) The same language appears in grants through to February of 1884, referring to a "reserved road" "when required". (15) This appears to be short lived, before a seemingly universal practice of reservation of thirty feet along a body of water is reserved in grants forward from February of 1884. (16) Note that this reservation seems to have applied only to grants in settled areas. One grant noted after February of 1884...