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INTERESTS IN LAND - Easements - Creation - By implication

Monday, May 03, 2021 @ 9:28 AM  


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Appeal by Douglas Lake Cattle Company from a trial judgment that gave the public access to two lakes on its property. The Province issued Crown grants for the property in question without specific reservation of roads or trails in the wording of the grant. A map annexed to the Crown grant depicted a trail and road. The judgment gave the public access to Minnie Lake via the trail and the road and access to Stoney Lake by the road. The trial judge found part of the road was exempted from the Crown grants that established the titles to the property eventually acquired by the appellant and the remainder of the road was a public highway because it had been maintained out of public funds. He further found the trail was exempted from the Crown grant. He awarded the respondent special costs as a public interest litigant.

HELD: Appeal allowed in part. The Crown grant permitted reference to the field notes. Those notes sufficiently designated the road. The trial judge did not err with respect to the width of the road that followed the route described on the Crown grant. The trial judge erred in concluding the trail depicted in the map annexed the grant and was intended to be an exemption from the Crown grant. A finding of common law dedication could not be grounded in the conviction that there had always been trail access over the appellant’s land to Minnie Lake. The trial judge erred in law by setting the boundaries of Stoney Lake without applying the statutory description of a natural boundary and by discounting the certified 1889 survey and the expert evidence. The evidence clearly supported a conclusion that the road did not reach the pre-flooding natural boundaries of either Minnie Lake or Stoney Lake. There was no public right to access the lakes. The appellant was entitled to restrict access to the lakes. The respondent had no statutory or common law right to cross the appellant’s property, whether flooded or not, to access the lakes. The special costs order was set aside. Each party was to bear their own costs at trial.

Douglas Lake Cattle Company v. Nicola Valley Fish and Game Club, [2021] B.C.J. No. 411, British Columbia Court of Appeal, P.M. Willcock, L.A. Fenlon and P.G. Voith JJ.A., March 5, 2021. Digest No. TLD-May32021002