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POWERS OF MUNICIPALITY - Regulation of property and activities - Highways

Wednesday, May 17, 2017 @ 8:41 AM  

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Appeal by the plaintiffs from a judgment refusing relief sought in respect of a road dispute with the defendants. The parties owned adjacent quarter sections of land. The disputed roadway ran through the defendants' section and provided access to the plaintiffs' quarter section. The plaintiffs took the position that the road was a public highway, requiring the defendant municipality to provide maintenance services. The chambers judge accepted the defendants' position that the roadway was private, finding that the surrounding lands were private and not openly accessible to the public. The fact of 32 years of prior maintenance by the County did not establish that the road was a public right of way. The plaintiffs appealed.

HELD: Appeal dismissed. The chambers judge did not err in finding no actual intention to dedicate the roadway as a public highway, as the wording of the grant and nominal consideration was indicative of something less than full conveyance, namely an easement. The chambers judge did not err in declining to find that the road was thrown open to the public, and accepted by the public. Although there was evidence of occasional use by others, such users were invitees. The use of the road was restricted given the private nature of the surrounding lands and the presence of signage and a gate. Although the County's past maintenance of the roadway was relevant, it was not determinative. The chambers judge did not misapprehend the evidence or rely on evidence that should have been ruled inadmissible. No palpable and overriding error was established. Proffered fresh evidence failed to meet the Palmer criteria for admissibility.

Twogee Developments Ltd. v. Felger Farming Co., [2017] A.J. No. 449, Alberta Court of Appeal, R.L. Berger, P.A. Rowbotham and B.K. O'Ferrall JJ.A., May 3, 2017. Digest No. TLD-May152017006