The Undedicated Access Road #158

By Gerry Neely
B.A. LL.B

When city folk move to the back country to homestead, they leave behind not only the amenities of urban living such as art galleries, Granville Island and the pizzas on the run to which they have become accustomed, but they also may leave behind the certainties of surveys, registered plans, or dedicated highways. More particularly a dedicated access road.

A recent Court of Appeal decision has left a family in the Rausch Valley in the Cariboo hoping that there will be sufficient money in the highway budget to complete the extension of a public road to their property by October of 1991. They bought a 74 acre parcel along the Fraser River in 1979, having viewed it in the winter by skiing in over a poorly developed road which crossed the neighbour's adjoining quarter section.

The family used the undedicated road without interference, and in October 1983 an agreement gave them yearly rights of renewal. In 1985 a dispute between the parties resulted in the neighbour blocking the road with a DC 7 cat, and the family electing not to renew the agreement because of the dispute.

Not having access to the road, but having access to the courts, the family obtained an injunction to keep the road open until a judge decided what their rights were. The first position taken by the family was that by public use, the road was a public highway. Before a public highway can be established there must be evidence of an intention of the owner to dedicate the road. In addition, the evidence must prove that the road was made available to the public which used it for private or business purposes without the owner taking steps to prevent that use.

While there was evidence before the Court that the road had been used in the early 50's and was not new then, no one could say how long it had been there or when and by whom it was built. There was no evidence of an intention to dedicate the road. There was also little evidence of a general public use of the road sufficient to support an intention to dedicate the road as a public highway. That position failed.

The family then argued they were entitled to an easement of necessity. That seems reasonable - apart from a good well, what is more necessary than road access? The law implies an easement of necessity for road access in very limited circumstances. Firstly, the property sold and the property over which the road crossed had to have been owned by the same person. Secondly, no access by way of dedication, right of way or other enforceable agreement in favour of the property sold was created over the property retained by the owner. Finally, the land requiring the road access must have been the first property sold if the Court is to be able to imply the grant over the property retained by the owner.

Title to the properties of the neighbour and the family had been Crown granted to their predecessors in title in 1917 and 1918 respectively. By disposing of the neighbour's property (the property over which the road crossed) first, the Crown would have been in no position to grant any right of way over it in favour of the first purchaser of the 74 acre parcel. That argument failed.

The final argument was that the family had used the road with the consent of the neighbour. This was evidenced by the 1983 agreement and the readiness of the neighbour to allow the continued use of the road by the family. This exhausted the legal arguments and fortunately it succeeded. The judge decided that this created a license in favour of the family, a license which could be revoked only upon reasonable notice. The trial judge's decision was that the reasonable period of notice would be until a public road was constructed to provide access to the family.

By the time this case reached the B.C. Court of Appeal, there was evidence that the public road would be constructed before October, 1991. The Court of Appeal varied the trial judge's order to provide that access over the neighbour's property would cease October, 1991, or earlier if the public road had been built.¹

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