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Powers of municipality - Municipal property - Highways - Ownership and control

Thursday, February 02, 2017 @ 7:00 PM  


Appeal by Lehtiniemi from the dismissal of his application for a declaration that a laneway he constructed on his property was not a public roadway. The appellant purchased the property in 1981. After completing a logging operation, he cleared and ditched a laneway. The appellant did the work and paid for all expenses, and he maintained the laneway. He placed a gate and “Keep Out” signs on the west boundary of his land. In 1993, the appellant’s small claims action against the municipality for trespass was dismissed and the Court found that the laneway was a public road. The municipality claimed that the appellant built the laneway on top of an existing, though unmaintained, public road to which it held title. The appellant disputed that assertion claiming that the old public road, now vanished, was a separate road built north of his property. The Court dismissed the appellant’s claim finding that it was barred by issue estoppel given that the Small Claims Court had determined in 1993 that the road that crossed the appellant’s land was a municipal road. It went on to find that the evidence established that there was a dedication and acceptance of the portion of municipal road that crossed the appellant’s land and that once a dedication was complete, notwithstanding that the town had not maintained the road after 1981, the appellant could not revoke it. The appellant appealed, arguing that the application judge failed to give proper weight to a survey and unreasonably rejected the supporting evidence of a forester.

HELD: Appeal dismissed. The application judge rejected the survey preferring the evidence of another surveyor and the evidence of numerous elderly residents. In reaching his conclusion, the application judge applied the reasoning in the jurisprudence concerning the doctrine of dedication and acceptance. The application judge went on to observe that once a dedication was complete, neither the owners nor their successor in title could revoke it. There was no reviewable error in the application judge’s reasoning.