Legally Speaking #27

Oct 01, 1982

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By Gerry Neely
B.A. LL.B.

A purchaser entered into an agreement for the purchase of land adjoining the highway which, according to his search of title in the Land Title Office, was of a certain area. Subsequent to the completion of the purchase, a survey revealed that the actual area was twenty five per cent less than the area indicated on the plan filed in the Land Title Office. The discrepancy was accounted for by the widening of the highway in the 50's. There was nothing filed in the Land Title Office which, in a normal search, would have indicated that this portion of the land purchased had been gazetted for road purposes. Until 1968 or 1969, the Ministry of Highways did not, as a matter of routine, file notices with the various Land Registry Offices of expropriations and purchases of land for highway purposes. In turn, the Land Registry Offices followed inconsistent practices which for some period of time resulted in a notation on the Certificate of Title or the Plan of the highway right-of-way plan number. This practice may not have been consistent throughout the Province, but it was stopped at least in Victoria because of concerns as to the legal liability which might result if a right-of-way plan was missed. From 1968 or 1969, as a matter of policy, the Ministry has filed notices with the various Land Title Offices of all expropriations and purchases of land for highway purposes occurring subsequent to those years. Although there have been discussions about bringing the Land Title Office records up to date by endorsing Titles with notice of previous highway rights-of-way, the sheer bulk of the work required has meant that no action has been taken.

The authority to file a notice is found in Regulation 334/79, which gives the Minister of Transportation and Highways a discretion as to whether or not to file a certificate with the Land Title Office in which the land is located. Section 23 of the Land Title Act, which provides that a Certificate of Title is conclusive evidence that the owner is indefeasibly entitled to an estate in fee simple, is subject to a number of qualifications, one of which is that it is subject to any highway or public right-of-way, water course, right of water or other public easement. The combination of the discretion given to the Minister to file a notice in the Land Title Office, together with the effect of Section 23, means that a person who buys property without notice of a highway right-of-way probably has no recourse against either the Minister or the assurance fund.

The prudent purchaser of land contiguous to a highway should make his offer subject to verification of the lot size with the Regional or District Office of the Ministry of Transportation and Highways.

The Highways Act contains another trap for an unsuspecting owner. By Section 4 of the Act, when public monies have been expended for the development of a road, the Court may declare the road to be a public highway, even though there has been no formal dedication or publication in the Gazette. In a recent case, the Court of Appeal held on the evidence of a man who had been familiar with the properties since 1910, that a road access across an owner's property to the lands of an adjoining owner, was a public highway. The evidence disclosed that the road had been built by a crew of road builders who were engaged in building public roads in the area. In addition, submission of the public financial accounts for 1910 and 1911 revealed an expenditure of about $2,000.00 on the "Long Lake" road. That evidence was sufficient to allow the Court to declare that the road access was a public highway. Once that declaration has been made, Section 5 of the Highways Act then gives the Ministry the power to enlarge the access to at least ten metres on each side of a mean centre line of the travelled road.

While this latter problem is one more likely to arise in rural areas, one should be alert to the wide definition of a highway found in the Highways Act, namely that a highway "includes all public street, roads, ways, trails, lanes, bridges, trestles, ferry landings and approaches and any other public way."

  1. Bunz v. Vayro,1982 [B.C.D.] Civ. 2207-1-01.

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