The Use of American Precedents in Canadian Courts

In 1849, the Supreme Court of New Brunswick faced the issue of whether there was a public right to float logs on navigable streams. Not surprisingly, no general right was found in the English common law as large scale floating of lumber down rivers did not exist in England. “Yet in a young country like Canada, the right to float logs and timber was an economic necessity in many areas and some device had to be found to make the activity legal.” To find that legal device, the New Brunswick court turned to the United States, specifically to Maine, and adopted the principle of floatability from Wadsworth v. Smith . At a time when there was both necessity and shared circumstances, Canadian courts referred to Maine\u27s experience for guidance. One hundred and thirty-five years later, in 1984, the New Brunswick Court of Queen\u27s Bench faced the question of who had ownership of land that was restored after a dam on a river was removed. Again, experience in Maine was helpful. Bradley v. Rice indicated that the ownership rule applicable to normal rivers and streams also applied to artificial ponds created by expanding a stream by means of a dam, and the rule was applied in New Brunswick. One would think such examples of regional borrowing would have occurred frequently. This is particularly so because most of English Canada began with the influx of the Loyalists who were on the losing side of the American Revolution. United States statutes were freely adopted in the new colonies, and many of the early lawyers and judges had American training. Nonetheless, this sort of regional interchange seemed to fall to the forces, however artificial in the largest sense, that direct our legal attention along national rather than regional lines. Thus, for further evidence of trans-border interaction, we must turn to the national stage, the subject of this paper