Sask Court rules that no compensation payable on expropriation of road

A Saskatchewan municipality passed a by-law to expropriate a roughly 2-acre road parcel from a quarter section of privately-owned land.  The affected landowners applied unsuccessfully to the Court  of Queen's Bench to quash the by-law, following which the issue of compensation for the expropriation was set to be determined.  In a decision released last October, the Court ruled that, in the circumstances of this particular case, no compensation was payable for the taking.

The road had actually been constructed by the municipality in 1980 to provide access to nearby lands. The 2-acre roadway cut across an 8-acre triangular piece of the quarter section, which was cut off from the remainder of the lands by a railway line.  The landowners (and/or their predecessors-in-title) had acquiesced in the construction and continuing use of the road.  The municipality had continued to maintain the road since its construction.

In 2004, the landowners applied to subdivide the quarter section to turn the 8 acre parcel into a one-lot subdivision.  This prompted the municipality to raise a concern about the maintenance of the road access across the property.  Eventually, the one-lot subdivision proposal turned into a two-lot proposal.  Between 2004 and 2011, the municipality and the landowners attempted to negotiate a resolution.  The municipality offered to purchase the 2-acre parcel in December, 2010, but no agreement was reached.  In March, 2011, the municipality passed its expropriation by-law.

In determining compensation, the Court of Queen's Bench found that the highest and best use of the land being taken was not a two-lot subdivision as proposed by the landowners.  The Court found that a two-lot subdivision was not a "reasonably probable use of the eight acre parcel" and that "there was no reasonable expectation that such a subdivision would occur."  For one thing, the road access issue was holding up any approval of a two-lot subdivision.  There was also evidence that the subdivision would not meet setback requirements.

The Court then looked at the effect of the taking on the eight-acre parcel as a whole: "what, then, should the applicants be paid, taking account of the value of the road parcel? Based on the before and after method, the applicants should receive the difference between the value of the eight acre parcel that they owned prior to the expropriation, and the value of the approximately six acre site that they will have after the expropriation. That calculation accounts for the value of the road parcel, the damage to the remaining six acre parcel, and any increased value to the remaining land arising from the work to be done - that is, the maintenance of a public road - on the road parcel. "

On the basis that the highest and best use of the land affected was as an eight-acre one-lot subdivision, the Court concluded that no compensation was payable: "Given that the transfer of the road parcel without compensation was an unavoidable cost of a single lot subdivision, the value of the eight acre parcel for a single lot subdivision was the same before and after the expropriation of the road parcel. The applicants accordingly suffered no loss as a result of the expropriation. Indeed, and as noted by counsel for the respondent, the expropriation of the road parcel puts the applicants one step closer to having the legal access that is a requirement for any subdivision. As such, it is a special benefit to the applicants."

The Court would have reached the same conclusion had the highest and best use of the land been agricultural: "no compensation is payable - even if the highest and best use of the eight acre parcel was the existing agricultural use. The road parcel is already used for the road, and is not available for agricultural use. As such, loss of title to the road parcel would not affect the value of the quarter section for agricultural purposes. "

Read the decision at: Colhoun v Rural Municipality of Lumsden No. 189.

Ontario municipality loses claim over forgotten 1854 lakeshore road

An Ontario Superior Court judge has granted summary judgment dismissing a claim by the Municipality of Meaford related to a long-forgotten road on the shoreline of Georgian Bay.  In 1854, the former Township of St. Vincent passed a by-law to establish a public road on the lakeshore over lots 21-25 of Concession 6:

Be it therefore enacted by the Municipal Council of the Township of St. Vincent, that the road on the lakeshore from the side road between lots 21 and 22 be established a public road as far northward as the side road between lots 24 and 25.  One boundary to be four rods from high water mark and the lake the other boundary.  Any damages or costs accruing by establishing the said road to be paid by the requisitionists, all of which is hereby established.

The by-law was not registered on title to any land until after 2004, when it was discovered in a box stored in the basement of the Meaford municipal offices.  The public road as called for by the by-law would cover approximately 6,000 feet over three concession lots.

Following the discovery of the by-law, Meaford passed a new by-law which accepted the purported location of the public road over the south part of Lot 23 (about 600 feet affecting 10 cottage properties).  The by-law also directed that Meaford's lawyer take steps, including court action, to confirm municipal ownership of the road. 

Meaford commenced an action asserting that the public road was established over the defendants' properties as a result of the enactment of By-Law 11 and further as a result of the doctrine of dedication and acceptance of the road as evidenced by the expenditure of public funds on the road and the historic use of the road by members of the public.  Meaford sought a declaratory judgment that the Disputed Road is a public highway governed by the Municipal Act, 2001 and that it is owned by and under the jurisdiction of Meaford.  Meaford also sought a declaratory judgment that the defendants are trespassing on the road.

The defendants in the action included the cottage owners affected by the purported road.  They brought motions for summary judgment to have the action dismissed before trial.  Meaford brought a cross-motion asking for injunctions to preserve the Disputed Road pending trial.  On a motion for summary judgment, the critical issue is "whether a trial is genuinely necessary, not because it is to be given some preferred status in the administration of justice, but because the issue to be resolved cannot be truthfully, fairly and justly resolved without the forensic machinery of a trial."

Justice Daley found that the paper evidentiary record before him was sufficient to allow for the determination of the question as to whether there was a genuine issue requiring a trial.  In the end, he found that there was no genuine issue requiring a trial.  He cited several reasons, including:

• Meaford did not establish that a public highway existed prior to the enactment of the 1854 by-law;
• While the Township did have the necessary legislative authority to establish the road in 1854, there were no records that any work was done or any money was expended for the road after 1854;
• No survey of the 1854 by-law lands was ever completed;
• The Township failed to register the road by-law on title.  In this case, the registered interests of the defendant landowners take precedence over the unregistered interest of Meaford;
• There is no evidence that the road has been dedicated by the owner of the land for public use;
• Meaford has not offered evidence that a public road existed in fact during the modern era;
• The new by-law passed by Meaford is void as it was not passed for a proper municipal purpose.  Meaford preferred the wishes of a small group of citizens to the concerns raised by its own planner and prior to the enactment of the by-law failed to carry out all proper inquiries and to give timely and adequate notice of the contemplated by-law to the property owners who may be affected by it;
• Over 153 years passed between the enactment of By-Law 11 and when the plaintiff located the by-law and thereafter took steps to try to enforce it.  No evidence has been offered by the plaintiff to adequately explain the extraordinary delay in the municipality asserting its rights to a public roadway pursuant to the by-law.  It would be unjust to grant Meaford's claim.