The recent trial in the lawsuit among Douglas Lake Cattle Company, Nicola Valley Fish and Game Club, and the Province, is a good illustration of the challenges of determining road status in British Columbia.
The issue in that litigation is whether the public (in the form of the Fish and Game Club members) can gain access to Minnie and Stoney Lakes, which are surrounded by Douglas Lake’s deeded land. I described the litigation in the previous issue of Beef in B.C., and that article is also posted on my website at www.mmlc.ca, where there are two other articles about public access through deeded lands dating back to 1993 and 1996.
B.C.’s Court of Appeal in Brady v. Zirnhelt set out the four ways of establishing public roads in B.C.:
Definition of “Highway”. “Highway” doesn’t just mean the Trans Canada or equivalent. In the context of figuring out if a road is public or private, “highway” just means a public road or path. It does not have to meet a specific width or standard of construction.
One of the challenging parts of the public road analysis, is tracking the changing definition of “highway” under the relevant provincial legislation, over the years. The current definition, in the Transportation Act (BC) is:
“highway” means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following…[the definition goes on to cite the specific methods for highway creation].
Dedication by Survey Plan. Dedication by survey plan has the virtue of certainty and clarity, as one can get a copy of the relevant survey plan from the Land Title Office and see the road dedication and its exact location. The road dedication must involve the land which is the subject of the survey, that is, not adjacent uninvolved land. Identification of a road on adjacent land that is not part of the land surveyed, does not constitute dedication and is not a final answer on the public or private nature of the road, although it may be relevant evidence about the existence of a roadway at the date of the survey plan.
Note that dedication of land as road on a survey plan, does not mean that a constructed road exists in that location. It means that the dedicated land is owned by the relevant municipality or, if outside a municipality, that it is owned by the Province as represented by the Minister of Transportation and Infrastructure, and the use is for road.
While dedication by subdivision plan is unequivocal, the three other methods of road establishment are more open to question.
Public Money Expenditure; Gazetted Road. The second method involves the well-known “public money expenditure” provision now in section 42(1) of the Transportation Act, plus the historic ability of MoTI to gazette a road, by publishing a notice in the British Columbia Gazette and filing a copy of the notice on the title to the property in question.
This second method of road establishment includes two rights of government for road creation—constructive entry (gazetting, no longer an option), and physical entry and taking of possession (public money expenditure).
Road gazetting was the second most clear and unequivocal method to establish a road as public and record its location. Often there are surveyed plans of the road at the Land Title Office. Creation of roads by gazetting ended in 1987.
Arguments about whether a portion of a road is public or not, can occur where a gazetted road location has changed location over time, usually through road improvements that may not have been properly recorded. Only the gazetted location is public, absent a further MoTI road taking. Disputes of this nature are relatively rare.
The public money expenditure method, though, has received much court attention. The challenge, as with any litigation, is to see what evidence can be found and then have the court determine its significance.
The section 42 road requires proof, on a balance of probability, of “significant” public vehicular travel on the road plus expenditure of public money. The Court of Appeal considered section 42 (then section 4 of the Highway Act) in Whistler Service Park Ltd. v. Normway Industries Ltd. et al and said “it could never have been intended that proof of only casual expenditure or passage would be sufficient…the evidence must be of so substantial a nature and demonstrate such circumstances as to remove any suspicion that an expropriation without compensation is taking place”.
In order to obtain a declaration that a road is a section 42 road, the applicant must prove that the claimed roadway is in the same location as the travelled road on which public money was spent, that is, not in a different location. A section 42 road comprises the travelled portion of the road only and is not a specific width. A trail is not a section 42 road.
As historic records are usually key, the outcome of the public money expenditure claim can be hard to predict at the beginning, as the records may not have been fully researched at the start of the lawsuit. Also, with historic records, it is hard to be sure there are no more records to find. These records may be in government hands or museums or archives, or occasionally in private hands, for examples diaries or letters.
It can be very important in litigation of this nature, for the ranch to have kept historic communications, including those with government ministries.
For roads established in the 1930s and later, there may be still be people available as witnesses who have a recollection of what took place, although the number of those witnesses diminishes every year. Aerial photographs can provide some insights about what existed on the ground, from about the 1940s on.
Forest roads are not public roads as section 24 of the Forest and Range Practices Act says that a road constructed or maintained under FRPA, the current or former Forest Acts, or the Forest Practices Code of British Columbia is not a public highway (absent a Cabinet order-in-council declaring it to be public). In addition, using Transportation Act regulations, MoTI can exempt certain roads from section 42, for example temporary construction roads.
Where there is a dispute over an alleged section 42 road, road status can only be settled for all time by a court order.
Common Law Dedication. Next, we come to the equally murky process of establishing a common law road dedication—murky because it takes time and effort to find evidence of the intention of the land owner to dedicate the road to the public, where a dispute has arisen.
Common law road dedication requires:
Common law dedication does not require public monies to have been spent on the road. Again, a final and binding determination of common law dedication can only be made by court order.
Disputes rarely arise where the intention of the land owner to dedicate and the acceptance of the dedication by the public are explicit. The court will infer both the owner’s intention to dedicate and the public’s acceptance of dedication, by evidence of significant public use, unopposed by the land owner, over an extended period of time.
In rural areas where the owner’s intention to dedicate is unclear, the Court of Appeal approved a statement from an Ontario case, Reid v. Lincoln, which said:
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. Brookman at p. 352). Such 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.
However the Court of Appeal distinguished local use by neighbours from light but persistent use by the public at large, and said that a lengthy period of unopposed use by the public at large, even if light, evidences common law dedication.
The land owner wishing to avoid common law dedication must make an effort to control access on a route that is intended to be kept private.
A Crown grant is the original grant from the Crown – often British Columbia, sometimes Canada for Railway Belt land – that creates the first title for a parcel of land.
Each Crown grant contains reservations, for example a 1/20th right of resumption (the Crown can take back up to 5% of the original grant without compensation) and, depending on the era in which the grant was issued, reservation of minerals, gold and silver only in the earliest grants, becoming an increasingly wide array of minerals over the years.
A common reservation is for roads. As with minerals, the reservation varied over the years. The first provincial Crown grants did not mention roads and trails although occasionally showed a road or trail on the map accompanying the grant. Then provincial Crown grants show reservations such as “PROVIDED, also, that all travelled streets, roads, trails, and other highways existing over or through said lands, at the date hereof [i.e. the date of the grant itself, not the date of the survey of the granted area], shall be excepted from this grant”.
The eventual decision in the Douglas Lake case may provide guidance about reservation of public roads where the Crown grant does not have “roads and trails” reservation language. Dominion Crown grants also lack “roads and trails” reservation language.
One of the Douglas Lake Crown grants shows a dotted line marked “trail” and a second dotted line crossing the first. Assuming that both dotted lines indicate trails (which is in issue in the court case), the trails likely ceased to exist as “highways” with the introduction of the current Transportation Act, because the definition of “highways” in that statute specifies exactly how a Crown grant exclusion becomes a highway, and a dotted line on the Crown grant map is not one of the accepted highway creation methods.
A trail may no longer be a highway, but that does not mean that the land owner owns the trail. It means that there is a strip of unalienated Crown land within the Crown granted parcel, a strip of uncertain width but normally in the three to six metre range depending on the evidence of use of the trail, and under the jurisdiction of the Ministry of Forests Lands and Natural Resource Operations rather than MoTI.
Where doubt about public or private road status exists, the field survey notes, the notes of the surveyor who did the field survey to issue the Crown grant, accessed through the British Columbia Surveyor General’s office, can often be helpful about what existed on the ground at the time of the survey (although not at the time of the grant as surveys were not always instantaneous).
A Crown grant may show a road location clearly and often the original road location has become a road or highway where no doubt exists about the location and public nature of the road.
More recent grants may show an area designated as road, or the Crown grant map may show a road coloured in a colour other than red. In either case, these are public roads under the Transportation Act definition of “highway” and are excluded from the land granted under the Crown grant.
If there was previous doubt, the Court of Appeal in Brady v. Zirnhelt said:
Lack of use cannot make a public road private.
and
The fact the Department of Highways does not have any record of the expenditure of public funds to build the road in 1938 and refused to repair the road in the 1940s and 1950s cannot make a public road into a private road. Nor can the failure to include the road on the plan referred to in the Crown grant of 1990. Once a road is public, it cannot return to private ownership by default.
As a counterpoint, be aware that the person asserting the existence of a public road must be able to prove its location on a balance of probabilities. Where the location of an historic road or trail cannot be proven, it cannot be declared a public road.
Given the nature of the evidence required, proving whether a road or trail is public or private is a challenging task.