Burke v. Nova Scotia, (1983) 57 N.S.R.(2d) 1 (TD)

• Judge: Nathanson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 07, 1983
• Jurisdiction: Nova Scotia
• Citations: (1983), 57 N.S.R.(2d) 1 (TD)

Burke v. N.S. (1983), 57 N.S.R.(2d) 1 (TD);

    120 A.P.R. 1

MLB headnote and full text

Burke v. Province of Nova Scotia

(S.H. 35486)

Indexed As: Burke v. Nova Scotia

Nova Scotia Supreme Court

Trial Division

Nathanson, J.

March 10, 1983.

Summary:

The Provincial Government expropriated three acres of land from the middle of a 49 acre woodlot for a limited access highway, leaving the landowner no access to 33.8 acres of the land. There was no guarantee of future access. The land was sold after the expropriation for $10,000 less than an oral offer received before the expropriation. The Nova Scotia Expropriations Compensation Board awarded compensation of $405, and refused to award compensation for injurious affection. The landowner appealed.

The Nova Scotia Supreme Court, Trial Division, refused to vary the compensation for the land expropriated, but awarded the landowner $2,926 for injurious affection to the severed land, because of the non-access.

Expropriation - Topic 2207

Practice and procedure - Appeals - Scope of review by courts of decisions of Board -The Nova Scotia Supreme Court, Trial Division, held that the court's duty on an appeal from a decision of the Nova Scotia Expropriations Compensation Board was to determine whether there was evidence to justify the Board's decision and whether the Board made any errors of law - See paragraph 30.

Expropriation - Topic 188

Right to compensation - Injurious affection - Severance resulting in restriction of access - The provincial government expropriated three acres of land from the middle of a 49 acre woodlot for a limited access highway, leaving the landowner no access to the 33.8 acre severed portion of the land - There was no guarantee of future access - The Nova Scotia Supreme Court, Trial Division, held that the landowner was entitled to compensation for injurious affection, because the non-access diminished the value of the severed portion by 60% - See paragraphs 31 to 50.

Expropriation - Topic 1080

Measure of compensation - Evidence of value - Offers to purchase the expropriated property - Three acres of a 49 acre woodlot were expropriated - The landowner sold the remaining land for $10,000 less than was orally offered before the expropriation -The landowner submitted that the original offer was the market value, entitling him to compensation of $10,000, not $405 as awarded by the Nova Scotia Expropriations Compensation Board - The Nova Scotia Supreme Court, Trial Division, held that a pre-expropriation oral offer to purchase land, was admissible to prove the market value of the land, but was of little weight - See paragraphs 37 to 48.

Expropriation - Topic 3102

Compensation awards - Particular awards - Injurious affection - Severance - The provincial government expropriated three acres of land from the middle of a 49 acre woodlot for a limited access highway - The landowner had no access to the 33.8 acres severed portion at the back of his land - There was no guarantee of future access - The Nova Scotia Supreme Court, Trial Division, awarded the landowner $2,926 as compensation for injurious affection to the severed portion of his land, because it diminished in value by 60% - See paragraph 50.

Cases Noticed:

POW Investments Ltd. v. Province of Nova Scotia (1973), 5 N.S.R.(2d) 121, refd to. [para. 3].

Greenough v. Minister of Lands and Forests (1974), 10 N.S.R.(2d) 598; 2 A.P.R. 598, refd to. [para. 4].

Re Westphal Estates Limited (1976), 17 N.S.R.(2d) 273; 19 A.P.R. 273, refd to. [para. 4].

Reiss and Hammerling v. Dartmouth, City of (1979), 36 N.S.R.(2d) 472; 64 A.P.R. 472, refd to. [para. 4].

Park Projects Limited et al. v. City of Halifax (1982), 50 N.S.R.(2d) 476; 98 A.P.R. 476, refd to. [para. 4].

Halifax Relief Commission v. City of Halifax, 36 D.L.R.(2d) 126, affd. 50 D.L.R.(2d) 69, refd to. [para. 17].

A.M. Souter & Co. Ltd. v. City of Hamilton, 2 L.C.R. 167, affd. 5 L.C.R. 153, dist. [para. 18].

Statutes Noticed:

Expropriation Act, S.N.S. 1973, c. 7, sect. 27(1) [para. 39]; sect. 30 [para. 49]; sect. 34 [para. 35]; sect. 60(1) [para. 2].

Public Highways Act, R.S.N.S. 1967, c. 24, sect. 21 [para. 23].

Authors and Works Noticed:

Todd, The Law of Expropriation and Compensation in Canada (1976), pp. 165 [para. 43]; 166 [para. 42].

Counsel:

H.F. Jackson, Q.C., for the appellant;

W.M. Wilson, for the respondent.

This case was heard on January 7, 1983, at Halifax, Nova Scotia, before NATHANSON, J., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on March 10, 1983.