Please read the disclaimer before perusing the following article.
written 1996, published in Beef in B.C. July/August 96
In the October 1993 issue of Beef in B.C., I wrote about the complexities of sorting out whether a road on your property is public or private.
On April 19, 1996, the Supreme Court of British Columbia issued its decision in Brady and others v. Zirnhelt and others. The claimants said that certain roads were public roads; the defendants said that they were private.
On September 10, 1998, the British Columbia Court of Appeal gave its decision on the appeal of the 1996 ruling.
The case and appeal both illustrate what kind of evidence is important and the collection of small indications on which such a case turns. Both the trial and appeal decisions refer to evidence from witnesses as to their recollection of events long ago, and from historic records and documents, to determine whether the roads were public or private. The trial and appeal decisions make little new law, but do show what kind of evidence judges look at in making their decisions.
The claimants in Brady v. Zirnhelt were the owners of lakefront lots on a lake about 30 miles from 150 Mile House. The subdivision plan which created the lots stated “access by water only”. There were, however, “rough farm roads” leading from the highway to the waterfront lots, through property owned by the defendants. The defendants required the claimants to get permission from the defendants whenever the claimants wanted to cross the defendants’ property. The claimants objected and started the lawsuit to have the roads declared public.
The trial judge decided that at least part of each of the three roads was private, so that none of the roads provided public access to the waterfront lots. The Court of Appeal reversed the trial judge’s ruling at least in part.
There was evidence that part of one road had been built by a road crew in the 1930s, and that the crew was paid from public funds, although the public records themselves did not indicate an expenditure on this road. After the initial construction, no further public monies were spent on that road. The Ministry of Transportation and Highways refused to repair the road on the basis that it was private.
The historic use of the roads was also an important consideration. There was evidence from witnesses who remembered the history of construction and use of the road.
The history of how the roads came to exist was important. Some information on this issue was provided by testimony of witnesses. Historic documents including correspondence were another source of evidence. For example a 1957 letter from the previous owner of the waterfront property to the Minister of Highways, surfaced. The letter described how the second road came into being—the writer had constructed it himself. He acknowledged that the road crossed private property but said that the property owners would “give a clearance” if the government took over the road. The letter reaffirmed that the Ministry of Highways refused to accept either the roads as public roads.
Aerial photographs also gave some guidance as to when the roads were built. The varying locations of roads and trails over the years raised issues about which facts applied to which portions of which roads at what time.
Both the trial judge and Court of Appeal repeated that highways can come into being in four basic ways:
The person alleging that a road is public has the responsibility to prove that his version of events is more likely than that of the defendant.
The trial judge quoted the wording of the Crown Grant itself - “Provided also that all highways, within the meaning of the Highway Act existing over or through the said lands at the date hereof shall be exempted from this grant”; and the wording of the Highway Act, R.S. 1936 section 2 - “Highway includes all public streets, roads, ways, trails, lanes, bridges, trestles, ferry landings, and approaches and any other public way”. He said that the road in question was not used by the public and was not therefore excluded from the Crown Grant by the words of the Crown Grant.
The Court of Appeal disagreed, and confirmed that a road or trail clearly exempted from a Crown Grant is a public road.
The legislation that applied when public money was expended on the bridge on one of the roads in 1938, said “Where public money has been expended on a travelled road…that travelled road shall be deemed and is hereby declared to be a public highway.”.
The trial judge in this case found that although public money had been expended on the road, there was no evidence to say that the expenditure of funds was authorized. In addition the judge decided that the road was not a “travelled” road. The fact that the Ministry of Transportation and Highways refused to accept it as public road, also seemed to persuade the judge that the road was not public.
The Court of Appeal once more disagreed. Finding that the land owner of the time worked alongside the government crew in the construction of the road and bridge, which took some four months, the Court of Appeal said “I do not agree that a government road crew could build a private road in 1938 at public expense over pre-empted Crown land with the active participation of the pre-emptor.” The part of the road in issue was therefore held to be public road.
This means that someone claiming that a public road exists, will succeed if he or she can show that public monies have been spent pursuant to the legislation of the day. The claimant does not need to go further and evidence that the expenditure of public monies was authorized.
In order for a common law dedication of roadway to be made, the owner must clearly intend to dedicate the road as a pubic road and the public must accept such dedication as evidenced by its use of the road. Use by a limited class of people does not constitute use by the public. For example, use by one’s neighbours with permission from the land owner, is not public use such as to make the road a public road.
The nature and significance of public use received considerable discussion in the Court of Appeal decision. The British Columbia Court of Appeal in a previous case (Dunsdan v. Hells Gate Enterprises Ltd.) first quoted with approval the following judicial remarks from an Ontario case (Reid v. Lincoln):
Evidence of the use of the road by the public is merely evidence from which the intent to dedicate may be inferred (per Lord Kinnear in Folkstone Corp. v. Brookiman at p. 352). Such an intention ought not to be too readily inferred from the use by members of the public of a road traversing private property in a rural community, especially in a locality where the normal system of roads did not develop. In these circumstances the owner of the property may well, in a neighbourly spirit, permit local residents to use a way across it for their convenience without having any intention of dedicating the road as a public highway. The inference of neighbourly tolerance is more likely when dedication is sought to be established at a period when the area is in a relatively early stage of its development.
These comments however must be contrasted with the Alberta Court of Appeal’s comments in Foothills Municipal District No. 31 v. Stockwell and Stockwell, also quoted with approval by the Court of Appeal in Brady v. Zirnhelt. In Foothills Municipal District, the trial judge talked about the kind of use that is required to infer a dedication on the part of the owner:
The evidence in this case indicates that this road diversion is not heavily used. For the most part, I find, it is used only occasionally by local farmers and from time to time by oil company employees, as well as by sightseers….
I am not satisfied that the facts of this case demonstrate use of the road diversion of a type and extent which constitutes public user without interruption from which intent to dedicate the road as a public highway can be inferred.
The Alberta Court of Appeal countered with:
With respect, this is an error in law. The characterization of a use as “public” or not involves a question of law, and the learned trial judge himself had found that those members of the public who had reason to do so had used the road as a public highway. This was so during 50 years. Thus, as a matter of law, there had been long, uninterrupted, public user. The fact that the road was not heavily used does not detract from the fact that its use was by the public at large. The only reasonable inference is that anybody who had a reason to go down that road went down it because he thought himself entitled to do so. There were no signs or gates or other assertions of privacy. This was not a road which was obviously part of a private driveway as in Reed v. Lincoln…but over which a minimal amount of public use might have been tolerated.
What one can conclude from these different perspectives, is that evidence of minimal use by people in the area when the area was in early development, with subsequent evidence of control exercised by the landowner, will not indicate public use such as to permit the inference of common law dedication of public road. However evidence of long periods of unimpeded use by whoever wants to use the road, even if that is only a few people, may permit the inference of common law dedication.
One of the signal differences between the trial judge and the Court of Appeal, is the importance placed by the Court of Appeal on a single piece of evidence, as indicating an intention by a previous owner of the lands in question, to dedicate a public road. This was a subdivision plan, deposited at the Land Registry in 1949, which showed a 66 foot wide “Public Approach to Lake” and notes a 66-foot continuation “To Likely Highway-Public Road”. Even though the Ministry of Highways subsequently denied that the road was public, the Court of Appeal determined that it was public.
Where road is dedicated by subdivision plan, only land inside the plan outline and owned by the landowner who is subdividing it, can be dedicated. An area described as “road” outside the subdivided area cannot be dedicated by the “road” description on the plan.
The Court of Appeal confirmed that “Once a road is public, it cannot return to private ownership by default”. For example, if a public road exists over Crown land, which is subsequently Crown-granted without the road being exempted on the Crown grant, the public road remains public road.
The lessons to be learned from Brady v. Zirnhelt include: