What is the legal test for a right to cross the ice?

But the limited jurisprudence on the subject makes it clear that this right is not accorded special protection, certainly not of the kind associated with passage on a highway or navigation. In another early Prince Edward Island case, Carvell v. City of Charlottetown (1876), 2 P.E.I.R. 115 at p. 129, Peters J. thus expressed the limits of the right: Besides it must be recollected that the right of travelling over the ice is not like navigation, a dominant right, but one of a very numerous class having no priority over each other, the user of whose respective rights must therefore be so adjusted, that all may fairly participate in the common privilege.

The same point was made in a case from Maine, a state whose courts have had considerable influence in the development of the law of waters in this province. In Woodman v. Pitman (1887), 79 Atl. 321 at p. 324, 79 Me. 456, Peters J. had this to say: It is an error, we think, to invest the right of passing on the ice in all places with the same degree of importance as that which attaches to the right of vessels in navigable waters. It may be an offshoot of the navigable right, — something akin to it, — but a right of a secondary or inferior degree.