A number of Beef in BC readers have expressed concern about the potential of a third party being awarded access rights over private land as a result of continued use by the public or private citizen, unopposed by the land owner. These questions have been sparked by articles about the litigation between Douglas Lake Cattle Company and the Nicola Valley Fish and Game Club, in the March/April issue, and the methods of establishing public roads in B.C., in the May/June issue.
This article is part one of a two-part series which explains how an individual, or the public, can obtain access rights over your land by crossing it or using it for some other purpose, for a long time, without your objecting to it.
At the end of this article there are suggestions for steps you can take to stop someone from becoming entitled to an access right.
First, we need to understand the different types of access rights, private and public.
For the purposes of this discussion, these include an easement and a right of way.
An easement gives A, the owner of one parcel of land, a right to go onto B's land for the purposes of the easement. B's land, with the easement located on it, is called the "servient tenement", and has the "burden" of the easement. A's land, to which the easement right is attached, is called the "dominant tenement" and has the "benefit" of the easement.
Easements can allow many different types of use. Most common are the right to go across the land, and the right to have water lines, water system works, private electrical lines, or all sorts of other utilities over or through the land. Less common are easements for encroachments, where part of a building extends past the boundary of the land on which it was constructed, or for parking, often accompanying a lease of part of a building for business use.
An easement does not deny the land owner reasonable use of his or her own property, but the land owner must not do anything that interferes with the easement rights. For example, a road over B's land for which A has an easement, can be used by A and B; at the same time B cannot erect a fence which would obstruct A's use of the road.
"Right of way" can mean two different things. In this article, I am using "right of way" to mean a "statutory right of way", a property right just like an easement, but without any benefitting land—no land to which the right of way is legally attached. For example, a B.C. Hydro line is protected by a right of way, the right to go over A's land with transmission line and associated works, without that right benefitting another parcel of land. The holder of this type of right of way has to be authorized by statute, thus the term "statutory right of way".
The commonly used term "right of way" is often used as a catch-all description for various forms of access routes, without legal meaning or effect. An example is a "railway right of way", which means the railway line itself. In fact a railway right of way is generally a strip of land owned outright by the railway company, not a right to go over land owned by others.
An easement or a right of way can be "in gross" meaning without a specified surveyed location, or can be limited to a surveyed location. If surveyed, the easement or right of way may have "ancillary rights" which is the right to go off the surveyed location onto the adjacent part of the same parcel of land, to do work on the road or utility that is protected by the easement or right of way.
Public access rights involve public roads, trails or paths, established by survey and dedication or in the other ways outlined in the May/June issue of Beef in BC.
In this and a following article, we will look at ‘proprietary estoppel', ‘common law dedication', ‘prescription (also called ‘adverse possession'), and the range of ‘implied easements'.
It is possible to obtain an access right—again, a private access right—by way of a proprietary estoppel.
"Estoppel" is a legal concept by which a person is prevented (estopped) from taking a position on a legal issue that is contrary to that person's previous conduct or position, because the other person involved in the dispute has relied on the previous conduct or position to that person's detriment.
An example is likely useful.
In Erickson v. Jones (2008 BC Court of Appeal), Ericksons owned an interest in a parcel of rural land near Burns Lake. In 1973, when Ericksons bought the land, access was via a road that wound through land owned by Mr. Loper. There was no formal agreement about the road, and both Ericksons and Mr. Loper had made inquiries and consulted lawyers about the road status.
In 1975, Mr. Jones bought property adjacent to the Erickson/Loper parcels.
In 1977, a dispute between Loper and Ericksons as to the road status was avoided when Mr Loper asked Ericksons to move the road location to the property boundary. Ericksons agreed, hired Mr. Jones, and shared the cost of constructing the new road. There was then an understanding among Ericksons, Loper, and Jones, that the old road would no longer be used, the new road would be a private road among the three of them, gates would be closed when cattle where at large, and Jones and Loper could go through the Ericksons' property to round up cattle and hunt and fish. There was, however, no documentation of the understanding nor a recorded easement.
In January 2002, Jones bought the Loper property and told Ericksons that he would no longer allow them to use the road constructed in 1977, which had been used by Ericksons for access since then. Ericksons sued, saying first that the road was public; and second that if it wasn't public, they were entitled to an easement over it.
Both the trial judge and the Court of Appeal said that the road was not public. But both courts agreed that Ericksons had the right to an easement over the road, because Ericksons, to the knowledge of Jones, acted to their detriment in relation to their land, by giving up the original access route and paying to construct the new access over the Loper/Jones property, in the expectation that they would have a right of access over the Loper/Jones property per their informal agreement, and their view was encouraged or agreed by Jones.
Both courts said that in those circumstances it would be unjust to allow Jones to insist on his legal right to terminate use of the access route. The courts' view was that Jones had done something beyond mere delay—in this case he participated in the agreement over the location, construction and use of the new road and allowed Ericksons to use it for 25 years—to encourage Ericksons to believe that Jones did not intend to rely on his strict rights—in this case, trespass over the Loper/Jones' property in the absence of a registered easement—and Ericksons had acted to their prejudice in that belief, because they had contributed to the road relocation cost and had foregone an opportunity to litigate the question of the original road status with Mr. Loper.
This is an illustration of the risk that, where a land owner has, by words or conduct, encouraged a land user to believe that the land owner will not enforce its strict legal rights, for example to assert trespass and close the access route, and the land user acts on this belief by taking action or spending money to the extent that the land user would suffer detriment if no longer to use the access route, a court can grant an easement to the land user.
This concept was outlined in the article about how public roads are established in B.C., in the May/June issue of Beef in B.C.
If common law dedication exists, it results in a public road. This concept does not apply to trails.
Common law dedication requires two components:
The issue for many people who read the previous article and then asked questions about common law dedication, was the risk connected with long periods of private or public access, where the land owner had not taken steps to assert his or her right to stop access.
Evidence of the land owner's intention to dedicate is usually the most difficult part of the legal analysis of common law dedication. Often the land owner is no longer available to give evidence about the intention to dedicate (or not). The courts will look at all of the available evidence of an intention to dedicate. This can include evidence of long, continuous and uninterrupted use by the public with acquiescence by the owner, but the courts are clear that is only one piece of the evidence to be weighed.
Courts have said, for example, that "a single act of interruption by the owner is of much more weight, upon a question of intention, than many acts of enjoyment" (i.e. public use).
Evidence which has been important, even determinative, to deny common law dedication includes a sign which said "Private Road, Use at Your Own Risk" (British Columbia v. Hilyn Holdings and others, 1991 British Columbia Court of Appeal), a grant of lease of the road area by the land owner to another party (Nelson v. 1153696 Alberta Ltd., 2011 Alberta Court of Appeal) and a right of way agreement between the land owner and a utility company (Hilyn, referenced above). All of these were accepted by the court as good evidence of a lack of intention to dedicate the road to the public, because each is inconsistent with an intention by the land owner to give up ownership and control over the road.
On the other hand, evidence that no effort had been made by any of the owners of the disputed land, in over a century, to prevent the public from using the road, was enough to allow the court to infer an intention by the land owners to dedicate the road to the public, in the absence of evidence that the owners had expressed a contrary intention (Dunromin Investments v. Spallumcheen and CNR, 2000 British Columbia Supreme Court).
And finally, the judge in Winskowski and others v. Coldstream and British Columbia (1996, Supreme Court of British Columbia), based on all the evidence, concluded that common law dedication had taken place, given that there had been public access for over 70 years to the Cosens Bay Road. The road originally traversed Coldstream Ranch lands, which had a locked gate on the road. Those wishing to use the road had to collect a key from the ranch office. The judge apparently accepted the argument that the locked gate was there merely to control grazing lands and said "tolerance by the public of a gate is not an assertion by the [land]owner of ownership of the road". The road was found to be public, but legal basis for that ruling was that public monies had been spent on a travelled road (not common law dedication, which was a side issue).
The land owner can take steps to help his or her legal position on access rights and to prevent public or private access rights arising.