All About Estates

When Your Property Is Not Really Your Property

This blog post is co-written with Fatima Husnain, student-at-law at Fasken Martineau DuMoulin LLP.

You might assume that all of the aspects of land within your property line belong to you, but that may not be the case. A recent British Columbia case, Douglas Lake Cattle Company v Nicola Valley Fish and Game Club, 2018 BCSC 2167, found that lakes, and the fish in it, are public property.

The Douglas Lake Cattle Company (the “Company”) is owned by an American billionaire. The Company is the largest private landowner in British Columbia and operates the largest ranch in the same region. Situated on the ranch are two lakes, Stoney Lake and Minnie Lake, and a road that leads to them. About 30 years ago the Company decommissioned the road and built dams to increase the size of both lakes. Stoney Lake, for instance, was increased from 37 acres to 141 acres. The Company also stocked both lakes with trout.

The Nicola Valley Fish and Game Club (the “Club”) launched a law suit claiming that the lakes were public property and that Club members must be allowed fishing rights and access to the lakes.  The Company’s position was that it owned the lakes because they were surrounded by private property, and the fact that the Company stocked the lake meant that the fish were also their property.

In 2018, Justice Groves agreed with the Club. Justice Groves found that the road leading to the lakes was a public road. If a road was found to be on a Crown grant of land, the Crown reserved the road for itself. Although parts of the road were covered by the lakes and decommissioned by the Company, Justice Groves found that it nonetheless remained a public road and the gate blocking the road from public access must remain unlocked.

With regard to the fish in the lake, Justice Groves found that by releasing the fish into public waters, the fish became public property and were no longer the property of the Company. Justice Groves drew a distinction between domesticated animals that are controlled and owned through acts of caregiving, and “feral beings”, such as wild fish. The act of merely stocking wild fish into a lake does not create an ownership interest.

Overall, the court found that the lakes were public property, despite the fact that the Company expanded them. The lakes, in their new, larger, size continued to be public property and were open for Club members to fish.

This case might be something to think about if there is a large body of water on your property or on a property you are considering acquiring. You may believe that it is yours to do with as you please; however, that might not be the case. Justice Groves and the British Columbia Supreme Court confirm that some things are just not for sale.

About Maureen Berry
Maureen Berry is a partner in the Trusts, Wills, Estates and Charities group at Fasken. Maureen’s practice is focused on wills, estate planning, domestic and international trusts, private corporation taxation, and executive compensation. Maureen also advises charities and non-profit organizations. Working with Canadian and international families, firms, corporations and charitable organizations, she provides advice on all aspects of private client matters. She is a leading expert in the fields of tax law and estate planning. As an Adjunct Professor at Osgoode Hall Law School, she teaches Advanced Estate Planning. Maureen has previously taught corporate tax and international tax at the University of Toronto and Western University, along with the Bar Admission course for up-and-coming lawyers.

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