Once a highway, always a highway? According to Section 26 of the Municipal Act, 2001, all highways that existed on December 31, 2002 continue to be recognized as public highways unless they have been closed. Historically, highways (not just “highways” in the sense of a major paved road but also sideroads and concession roads, gravel or paved) could be established in a number of ways, including by passage of a municipal by-law or by operation of the common law doctrine of “dedication and acceptance”. After January 1, 2003, however, all highways must be established by by-law of a municipality.
The doctrine of dedication and acceptance required that the owner of land on which a road was located formed the intention to dedicate the land to the public as a public road, that the intention was actually carried out by opening the road to the public, and that the road was accepted as such by the public. Dedication could also occur by “usurpation and long enjoyment” with the dedication by the landowner being inferred from the use of the road by the public.
While it might seem that establishment of roads by dedication and acceptance would have been an imprecise and uncertain practice (which it was) as compared with establishment of roads by municipal by-law, the fact that a municipal by-law was once passed doesn’t always translate into the continuing existence of a road. Some roads that were established by by-law have disappeared. Some roads were never actually created. The circumstances surrounding the passing of the by-law and the plans for the road may be lost to history. Roads can be lost to history. Those seeking to prove the existence of a disputed road today often face a tall order.
An application decided by the Superior Court provides a case in point. The applicant landowner owned a parcel of land bisected by a river. The north section of the property, lying north of the river, was effectively landlocked and accessible by water only. However, the local municipality had passed a by-law in 1890 purporting to establish a public road through neighbouring property (also to the north of the river) that would provide land access to the landlocked parcel. The landowner applied for a declaration that the 1890 by-law established a road that ought to be opened up (through the neighbours’ property) for public use today.
The neighbouring owners opposed the application, as did the municipality. The neighbouring owners contended that there was no evidence of a road ever having existed on the ground through their property. Land registry documentation did not disclose a road on the property. Some of the area where the road was supposed to have existed was now under water or part of environmentally sensitive wetlands. An aerial photograph of the area from 1926 provided no evidence of a road.
The municipality said the highway described in the 1890 by-law was never built; the municipality never succeeded in acquiring all of the land necessary for the road.
The applicant landowner took the position that the passing of the 1890 by-law, and its registration in the Land Registry, was sufficient to create a valid “highway” that continues to exist today regardless of its current physical condition. The by-law, the applicant submitted, described the boundaries with certainty. The applicant provided evidence of a land surveyor suggesting that the location of the road can still be established. The applicant also pointed to “visual evidence of a historical road in the area”.
The Court sided with the respondents and dismissed the application. While Council Minutes from the 1880s and 1890s suggested there was substantial community interest in the development of a road across the neighbours’ property, and some steps were actually taken to create the road, the process was never completed. A survey for the proposed road was prepared. The municipality acquired some of the land needed for the road. There was even evidence that some portions of the proposed road were opened for public passage. However, the full road never came to fruition and eventually, it seemed, was lost.
Apparently, some portions of the road that were constructed did not follow the original survey, which caused friction between landowners. The municipal record contained reference to a “forced road” in one location where the road deviated from the planned route onto private property. The Court noted that there was ample evidence that sections of the proposed road were through wet and marshy land, which would complicate construction. Ultimately, the Court disagreed with the applicant that the location of the road could be described with certainty. This was one reason for the dismissal of the application.
The application also failed because there was no modern record showing that the road ever existed as planned by the 1890 by-law. The evidence did not show that all necessary land was acquired by the municipality. The survey that laid out the road had been lost. There was no reliable historical photographic evidence that showed the location of what might have been a publicly travelled road.
The road, to the extent it ever truly existed, had been lost to history.
Read the decision at: 2021 ONSC 3215 (CanLII).
