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Who owns the shoreline?

This article originally appeared in the April 2011 issue of Cottage Life.

When I was a kid, there were two memorably intimidating properties on the shores of Clear Lake, where, in one configuration or another, the Wilkinses have spent their summers for the better part of a century. One of the two was distinguished by a hideously derelict cottage, apparently long deserted, although, according to my older sisters, inhabited by a reclusive old hag who had murdered her husband and kept rats (and perhaps children) in cages beneath the cottage’s rotting floorboards.

The other was an acreage of dense hemlock and pine, owned by the local municipal clerk and festooned with signs bearing the terse fib trespassers will be prosecuted. The rusted, bullet-pocked signs were aimed lakewards, and occasionally, in defiance, my pals and I would pull ashore in my grandfather’s old punt and take a few steps up onto land. Then we’d hear a crow caw or a twig snap (or was it a hidden camera clicking?) and would leap back into the boat and row like Olympians, chortling over our derring-do in the face of such peril.

But we never ventured far up into the trees, knowing, or at least suspecting, that if we got uppity on the evil estate, we would quickly be at the mercy of the vigilantes who were surely out there with their binoculars and Dick Tracy watches, monitoring the place in order to catch scofflaws such as us.

Plus, you couldn’t just go on people’s shoreline. It was theirs. They had rights. Woody Guthrie was wrong—this land was not your land and my land; it was their land, and if you knew what was good for you, you didn’t set foot on it, much less host a picnic or enjoy a bonfire on its three-billion-year-old granite.

What bugged me then, and still does in a low-key way, was that no matter how much you loved your lake or the rocks around it, or its sunsets, white pines, or wildlife—or no matter how long you or your family had loved it—you were limited to experiencing its surroundings from your own little patch of shoreline, or from patches belonging to your neighbours or friends. Not that there was anything invalid about back acreages, land 40 or 50 metres from the water, but a lake’s shores were the best of it, a vital strand where we swam and picnicked and fished, where boats were kept and fires lit at night, and where on a good day you might see a hundred-year-old turtle grind up onto the rocks from beneath the dock, or an otter snag a fish, or you might snag one yourself, or witness a heron take flight or some other snippet of theatre related to, say, loons or black bass or water snakes. The shore was where we kept our sailing gear and canoes, and where bronzy young women (and occasionally brassy older ones) suntanned in their itsy-bitsies.

But the stark fact remained: While people could walk for miles along the edges of the great blue sea—or even Lake Superior or Lake Huron—they couldn’t take even a brief morning stroll along the edge of their beloved and familiar lake. 

Or could they?

I set out on my walk at about 10 a.m. on a warm morning in July.  

Our lake, I should point out, has about seven kilometres of shoreline, nearly five of which are occupied by the lake’s 200-odd cottages. No part of the shore is what a true outdoorsperson would call difficult hiking, although there are areas where the footing is tricky. My greater concern was that privacy-conscious cottagers would be offended, if not mortified, by my unannounced appearance on their property.

There was certainly no resistance on the first lot I crossed, but that was not a surprise: I am so thoroughly known to my neighbour Kathy Pegg that she would undoubtedly have granted me free passage had I been shepherding a battalion of gorillas. Yet Kathy was anything but sanguine about my prospects for the day, expressing a view that anybody who went parading across waterfront belonging to others was “asking for trouble.”

Among my aims for the day was to find out what my fellow cottagers knew of shoreline regulations or tolerances—say, the rights of boaters or “trespassers” along the waterfront of others. On that score, Kathy said she had always heard that on most Ontario lakes, a narrow right of way exists alongshore, a free zone dating to historic treaties, so that First Nations hunters, fishermen, and traders would have a place to pull their canoes ashore and camp for the night.

It was a refrain I heard again at the Watts cottage a few hundred metres downshore and, in variation, at McDevitts’, where Bob said he believed that some Ontario lakes, but not Clear Lake, had a right of way alongshore owned not by cottagers but by the Crown. 

Perhaps 90 minutes after I left home, I reached one of the two or three cottages on the lake that for me are private landmarks—a lovely old pine place to which my grandfather, Walter Scholey, first brought my grandmother, my mother, and her siblings during the 1920s. A few doors further along is the cottage where my father’s family first came to the lake, where my dad met my mother during the late 1930s, and where a few years later, during the war, they honeymooned for a few days while my dad was on leave from training at Valcartier.   

While the levels and shorelines of many lakes in Ontario are controlled by man-made dams, the water in Clear Lake is controlled by a beaver dam situated on the lake’s only outlet, a small creek that flows out of a rather swampy little bay between the aforementioned cottages. In the days before ecological sensitivity, once or twice a summer, somebody was hired to blow up the dam when the water on the lake got too high. Within hours the level would drop dramatically, sometimes by as much as a foot. But these days, because beavers are people too (and dynamite is no longer perceived to be part of nature’s balance), there is no blowing up of anything, and the water remains permanently high.

I might have considered this more astutely as I stepped back and took a run at the creek, hoping, like Superman, to leap it in a single bound as I had done many times as a kid. Alas, the boggy creek banks were soft with the high water, and as I was about to launch gracefully off my left foot, the bog beneath me gave way and I was suddenly up to my knees in creek bottom, meaning that I arrived at the next four or five cottages with my jeans soaking wet and my feet squishing quietly in my Nikes.

One thing that surprised me on my travels was the number of old fences separating one property from another, in some cases running to within a metre or so of the water. Not one of them, however, had been constructed during the previous half-century, suggesting that, contrary to what I believed, cottagers in the past had been more uptight about privacy than they are now. Barry Goldblatt suggested that a few strands of rusty wire at his end of the lake probably dated to the 1930s, when Mr. Bailey, a local subsistence farmer, allowed his cows to go to the lake to drink but didn’t want them straying alongshore.

At about 2 p.m., fearing that I was moving a little too slowly and that I was not going to get to the east end of the lake at all, I scooted down to the YMCA camp, which takes up about a third of the lake’s shoreline and where I had dropped by the previous day to clear my passage with the camp director. Starting from the camp’s south boundary, I made my way through the near-primeval forest, which in most places comes to within a metre or two of its shores. 

On the camp bridge, I spoke with a camp administrator who, like others, believed there was a right of way alongshore but that it was “a safety thing,” so people could “come ashore if they got into trouble on the water.” 

Where shoreline legalities are concerned, I heard half a dozen views from cottagers on who owned the waterfront and who had access to it. Suzanne McClennan told me confidently that I was totally within my rights to be walking alongshore, because a four-foot strand along the water was reserved pretty much for anybody who happened by. Brenda Buck said, “My great-aunt used to call it ‘the beaver path.’ As kids we used it to get from place to place.” Barry Goldblatt speculated that the right of way just might have been set aside so that cows belonging to the aforementioned Farmer Bailey could get down to the lake, and that when the shore properties were transferred from the Crown, or from Bailey to early cottagers, the right of way had been preserved in the patent.

To gain perspective on such views, I eventually contacted Kathy Hawthorne, a policy adviser in the Natural Heritage Lands and Protected Spaces branch of the Ontario Ministry of Natural Resources, and the Ontario land surveyor John Hiley, who was recommended to me by an official of the Township of Muskoka Lakes because of Hiley’s long-standing experience in sorting out shoreline ownership in his work.

Regarding access, Hawthorne confirmed that a federal “Mariner’s Distress” law exists, as part of the Navigable Waters Protection Act, which permits boaters in trouble to land legally on the shorelines of others.

I have built semi-permanent dock cribs over the years, so I was particularly interested in what Hawthorne had to say about “water lots”—portions of lake bed or riverbed that in the distant past were sometimes sold by the Crown to owners of shore property so that the latter could legally build dock cribs or breakwaters, a practice since curtailed for ecological reasons (though the Crown still transfers some land that is underwater, for two-storey boathouses, for example). “Over the years,” she says, “shoreline owners have often dumped fill into shallows to extend their land.” She explains that if the fill was dumped a long time ago—60 or more years ago in Ontario—the created “land,” if surveyed or assessed, has generally been granted to the current owner. “But if the dumping was more recent, we’ve occasionally had to tell the property owners that it’s not theirs to keep.”

A more common issue for cottagers is shoreline road allowance—unused road allowance—or shoreline reserve, which exists because, during the early 20th century, the Crown created 66-foot-wide zones along the shores of many bodies of Ontario water, to give the Crown access and so that roads could be built in the future. The Crown wrote such allowances into the original survey or in the patents whereby land was deeded to individuals or municipalities. The thinking, says Hawthorne, was that, as the territory’s population and activity grew, roads would be needed, and that in most cases it would be easier to build the roads along shorelines than through swamp or over rock.

Many of the allowances were never used, however, and over the years cottagers or other shoreline owners assumed proprietary rights over them. According to John Hiley, some landowners built cottages or other structures right in the middle of land that had been designated for roads. And it’s possible that new owners bought from people who didn’t make it clear there was a road allowance alongshore—or who simply didn’t know. “We treasure the notion of the intergenerational family cottage,” he says, “but some places have changed hands ten times over the years. And the original patents are simply forgotten or lost in the shuffle.”

These days, municipalities are responsible for roads and, thereby, road allowances. “The difficulty,” says Hiley, “is that the policy on old road allowances—indeed on most shoreline issues—varies from township to township, so that what you get are potentially hundreds of different rules pertaining to shorelines across Ontario.” For example, nearby Medora Township had no road allowances in its original survey. “But in Monck or Wood Township—say on Lake Muskoka—there are still road allowances that property owners often don’t know about when they buy land from the previous owner.” Fortunately, explains Hiley, if such an allowance is discovered, the municipality generally sells it, or simply grants it for a fee, to the property owner.

According to Hawthorne, it is highly unlikely that a municipality would suddenly build a road along an old allowance and in so doing destroy shoreline access for a property owner. “But to be sure,” she says, “cottage owners or buyers are always wise to have a surveyor search their title and make sure the property is clear. And if it’s not, they can apply to get possession of whatever old allowance is on their waterfront.”

Cottage owners will be relieved to hear that neither Hawthorne nor Hiley could recall an instance in which roads have actually been built on long-dormant allowances. 

While all shoreline issues can be controversial (see “Shore Wars,” , below, for one newsworthy example), perhaps the thorniest these days involve fluctuating water levels. “At one time,” says Hawthorne, “the Crown sold people land with a fixed boundary alongshore, so that if the water level dropped and dry land was created, it belonged to the Crown, not the shoreline owner.” Nowadays, she explains, the common practice is to create boundaries that end at the waterline, whether it is high or low.

“The strange thing,” says Hiley, “is that on a lake like Muskoka, where a lot of the property was granted with a fixed boundary alongshore, the water can rise as much as eight or nine feet, so that the owner literally owns land underwater. But he can’t do anything to it, dump in rock or sand, because of the laws protecting fish breeding beds, and so on.”

The Great Lakes are a special challenge for those attempting to determine boundaries, in that the beaches are governed by so many different patents and grants, some creating public beach in perpetuity, others allowing for privately held beach, either to the waterline or to a fixed boundary.

Meanwhile, back at Clear Lake, the shadows were beginning to lengthen. Whereas much of the lake is surrounded by hemlock and pine, with steep granite shores, the west end is grassier, with sandy shallows. Indeed, along the west end of the lake it would have been possible for me to avoid the shore altogether and, as John Hiley suggested, simply wade along in the water in front of the cottages, and done so quite legally.

Not that, either way, I would have offended Bernie Schwartz, who, when I walked onto his property, looked up from the book he was reading on his chaise longue and welcomed me to paradise. Being a discreet man, he would never have said so outright, but I suspected his biggest current shoreline issue had less to do with access or ownership than with the positioning of his neighbour’s steel-frame dock, which, in mid-July, was still in its “up” position, winched out of the water on its hinges, an amateur impersonation of the Leaning Tower of Pisa, throwing a shadow almost across the spot where Bernie lay soaking up literature and the sun. 

I fetched up finally at the Lithgow cottage, among people so hospitable and generous that I could not in the end refuse a dinner invitation, not to mention an unparalleled happy hour and, eventually, a view of the evening star glowing off the east end of the lake. The doyenne of the property, Mary-Ellen Good-Baxter, told me that her grand­father had come to Clear Lake in 1905 to scout land for the YMCA camp and had fallen so profoundly in love with the lake and its surroundings that he bought the property on which we were now drinking wine and eating dinner. One of the Lithgows’ guests that evening, Shirley Forster, recalled that her parents had first brought her to Clear Lake during the 1950s, when they and other parents, terrified of the polio epidemic that was devastating families across North America, had come north to Muskoka to escape the disease.

When I asked Mary-Ellen’s daughter Merrill if the family had shoreline concerns, she responded forthrightly that they and their neighbours had been wading back and forth across one another’s shallows and shorelines for years, and that as long as nobody messed with their beachfront utopia, they were as welcome as I was to come alongshore and enjoy the party.

It was among the Lithgows and their neighbours that I gained new perspective on Clear Lake as a locus of romance, in that no fewer than half a dozen of those I talked to during my visit reported that parents or children or they themselves had, like my own parents, met and courted here and eventually married.

More importantly, it was at the Lithgow cottage that it occurred to me that, somehow on my travels, I had reversed entirely the pre-hike perception of my fellow cottage owners as people who would be spooked by the incursion of a stranger, or semi-stranger, onto their property. I had imagined them peering from behind screen doors, ordering me to Get Lost, to Shove Off Pronto, whereas in reality I had been pampered by them to an all-but-embarrassing degree; had been welcomed onto decks and into sunrooms; had been fed and watered and questioned genially on the nature of my mission; had been offered historical and family information, in one case of such a happily scandalous nature that it transformed my thinking about one of the lake’s oldest families of cottagers.

So satisfying had been my daylong confab and hike that by that time I had already evolved a compelling new idea for cottage lakes everywhere. It was this: that in the interest of community and the awareness of our surroundings, we put aside one day a summer, and on that day we not only allow but encourage our fellow cottagers to hike the shorelines of their own lakes—enable free passage along the waterfront, across the property of others, a revolutionary and spirited idea whose time, it struck me with a force, had come. If typical trespassing suggests disrespect, a “controlled trespass,” as they say in Britain, would foster respect not just for privacy and material holdings but for the local ecology and for the notion that we are a community, stakeholders, neighbours with an agenda of shared concerns. 

I had spoken with any number of people during the day about those concerns—the vulnerability of our waters to fertilizers, zebra mussels, boating violations, septic fields, and so on. “What I want you to tell people in this story,” urged Dorry Korn, “is not to destroy our beautiful lake—not this lake or any other lake. To do whatever needs doing to keep the lakes healthy.”

When I left Lithgows’, I stopped briefly at the Johnston cottage and, in the gathering darkness, built a little bonfire with my cousins Leanne and Melanie, and with Melanie’s children, Justin, Ashlyn, and Emily. We toasted a few marsh­mallows, sang a few songs, and swatted seven or eight hundred mosquitoes.

Eventually, when we had said good night and put out our fire, I made my way not alongshore but along their pitch black lane, as I had done a thousand times as a kid. At the main road, under a cascade of stars, I turned east toward the silhouette of pines and, with the air cooling, walked slowly uphill toward home.

Shore wars

Shoreline ownership and trespassing have been in the news in some parts of Ontario recently, in particular a fracas over shoreline on Georgian Bay, in Tiny Township. On a waterfront lot north of Wasaga Beach, cottager John Marion, attempting to make it clear that he owned his beachfront right to the water’s edge—and to block foot traffic—constructed a high wooden fence from the back of his cottage to the waterline. Marion had every right to build his fence, having recently used the courts to substantiate his ownership of the shore. Not long afterwards, indignant local residents, accustomed to passage along the beach, took a chainsaw to the fence and eventually set it ablaze.

A subsequent contretemps between the owner and a would-be trespasser led to a scuffle, and to litigation. (In December 2009, a Midland judge threw out assault charges against Marion and his son.) In the meantime, Niagara Falls MPP Kim Craitor advanced a private member’s bill in the Ontario legislature aimed at making all our Great Lakes shores accessible to the public. It has yet to pass into law.

[Editor’s update: the bill has still not passed into law, and recently the issue came up again over beach passage at Balm Beach on Georgian Bay. A Facebook group called Beach Rights has formed to maintain public access to the beach.]

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