Cabre Exploration Ltd. v. Arndt and Provincial Planning Director, (1986) 69 A.R. 279 (QB)

• Judge: Dea, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 08, 1986
• Citations: (1986), 69 A.R. 279 (QB)

Cabre Exploration Ltd. v. Arndt (1986), 69 A.R. 279 (QB)

MLB headnote and full text

Cabre Exploration Ltd. v. Arndt and Provincial Planning Director

(No. 8503 19134)

Indexed As: Cabre Exploration Ltd. v. Arndt and Provincial Planning Director

Alberta Court of Queen's Bench

Judicial District of Edmonton

Dea, J.

April 8, 1986.

Summary:

Cabre obtained a right of entry order respecting 2.1 acres of 109.5 acres owned by Arndt. The Surface Rights Board determined the amount of compensation payable to Arndt. Cabre appealed.

The Alberta Court of Queen's Bench allowed the appeal and varied the amount of compensation.

Mines and Minerals - Topic 6101

Operation of mines, quarries and wells - Compensation to owners of surface rights - The Alberta Court of Queen's Bench distinguished between the rights and obligations of landowners and operators at common law and under the Surface Rights Act - The court stated that the Act altered the common law by extending the operator's rights, but also required the operator to pay the landowner the compensation that the landowner was denied under the common law - See paragraphs 9 to 25.

Mines and Minerals - Topic 6113

Operation of mines, quarries and wells - Compensation to owners of surface rights - Appeals - The Alberta Court of Queen's Bench held that an appeal from the Surface Rights Board was in the nature of a trial de novo, but remained an appeal where the board's decision was set aside only if it was "clearly demonstrated to be wrong" - See paragraphs 26 to 30.

Mines and Minerals - Topic 6115

Operation of mines, quarries and wells - Compensation to owners of surface rights - Practice - An oil company appealed a Surface Rights Board compensation award - The landowner attempted to adduce evidence to attack the Board's award but had given no prior indication that it challenged the award - The Alberta Court of Queen's Bench stated that the court would grant an adjournment if the landowner wished to pursue the matter, to avoid the oil company being taken by surprise - See paragraph 8.

Mines and Minerals - Topic 6151

Operation of mines, quarries and wells - Compensation to owners of surface rights - Awards - Surface damage - Section 25(1)(e) of the Surface Rights Act allowed the Surface Rights Board to award compensation for damage that had occurred or might occur to the land - The Alberta Court of Queen's Bench reduced an award from $210.00 to $1.00, because on a first hearing the prudent course was to award nothing or a nominal amount - The court preferred to award compensation for damages at the time the operator applied to terminate the right of entry order, because the actual damage could best be determined at that time - See paragraphs 49 to 53.

Mines and Minerals - Topic 6153

Operation of mines, quarries and wells - Compensation to owners of surface rights - Awards - Disturbance and nuisance - The Surface Rights Board awarded a landowner $1,500.00 compensation under s. 25(1)(f) of the Surface Rights Act for disturbance and nuisance respecting a right of entry over 2.1 acres of his 109.5 acre parcel of land - The Alberta Court of Queen's Bench refused to disturb the award where the Board was not "clearly demonstrated to be wrong" - See paragraphs 44 to 46, 56 to 58.

Mines and Minerals - Topic 6156

Operation of mines, quarries and wells - Compensation to owners of surface rights - Annual awards - Loss of use - The Surface Rights Board awarded a farmer $420.00 for loss of use of 2.1 acres - The Board also compensated the farmer for the value of the land - The Alberta Court of Queen's Bench held that a landowner could be compensated for the value of the land or loss of use, but not both; compensation for both constituted double compensation - The court affirmed the award for loss of use and set aside the lesser award for the value of the land - See paragraphs 36, 51.

Mines and Minerals - Topic 6157

Operation of mines, quarries and wells - Compensation to owners of surface rights - Annual awards - Adverse effect on remaining land of landowner - The Alberta Court of Queen's Bench reduced a $1,500.00 compensation award by the Surface Rights Board for adverse effect to $600.00, where there were no reasonable grounds for an award that high - See paragraphs 37 and 38, 52 to 54.

Mines and Minerals - Topic 6166

Operation of mines, quarries and wells - Compensation to owners of surface rights - Awards - Residual value to owner - The Alberta Court of Queen's Bench held that the Surface Rights Board erred in compensating a landowner for the fair market value of 2.1 acres of land subject to a right of entry order without adjusting the value to reflect the residual or reversionary interest of the landowner - See paragraphs 35, 49 and 50.

Cases Noticed:

Dome Petroleum v. Hampson (1979), 19 A.R. 257; 10 Alta. L.R.(2d) 140, refd to. [para. 8].

Rowbotham v. Wilson, 11 E.R. 463, refd to. [para. 12].

Welldon v. Butterly Co., [1920] 1 Cl. D. 130, refd to. [para. 12].

Fuller v. Garneau (1921), 61 S.C.R. 450, refd to. [para. 12].

Borys v. C.P.R. (1952-53), 7 W.W.R.(N.S.) 564, refd to. [para. 12].

Christianson and Alberta Power Ltd. et al., Re (1985), 59 A.R. 293; 33 L.C.R. 78, refd to. [para. 14].

Caswell v. Alexandra Petroleums Ltd., [1972] 3 W.W.R. 706, consd. [para. 27].

Lamb v. Canadian Reserve Oil and Gas Ltd., [1976] 7 W.W.R. 79; 8 N.R. 613 (S.C.C.), consd. [para. 28].

Esso Resources Canada Limited v. Smulski and North Edmonton Gas Co-op Ltd. (1981), 18 Alta. L.R.(2d) 200 (C.A.), consd. [para. 29].

Whitehouse and Whitehouse v. Sun Oil Co., [1982] 6 W.W.R. 289; 40 A.R. 380 (C.A.), consd. [para. 30].

Twin Oils v. Schmidt (1968), 74 W.W.R.(N.S.) 647, refd to. [para. 32].

Nova v. Bain, [1985] 4 W.W.R. 460, refd to. [para. 34].

TransAlta Utilities Corporation v. Kehlert (1984), 32 L.C.R. 172 (Alta. Q.B.), refd to. [para. 34].

Mobil GC Canada Ltd. v. Fletcher et al. (1984), 53 A.R. 130, consd. [para. 42].

Statutes Noticed:

Surface Rights Act, S.A. 1983, c. S-27.1, sect. 25(1), sect. 25(2), sect. 25(5) [para. 6].

Authors and Works Noticed:

Report on Expropriation, Institute of Law Research and Reform [para. 11].

Gale, The Law of Easements (14th Ed.), p. 117 [para. 12].

Richards and Price, Surface Act Acquisition and Compensation, 1 Alta. L.R. 1 [para. 12].

Lucas, Compensation for Oil and Gas Surface Rights in British Columbia, [1971-72] Sask. L. Rev. 368 [para. 12].

Sychuk, Compensation for Oil and Gas Surface Rights in Saskatchewan, [1971-72] Sask. L. Rev. 389 [para. 12].

Currie, Compensation for Oil and Gas Surface Rights in Alberta, [1971-72] Sask. L. Rev. 351 [para. 12].

Barton, Controversy in Surface Rights Compensation Pattern of Dealings Evidence and Global Awards, 1 Alta. L.R. 34 [para. 12].

Counsel:

R.C. Swist and T.R. Owen (Swist and Company), for the appellant;

M.M. Driessen (Nickerson, Roberts and Hilborn), for the respondent.

This appeal was heard before Dea, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on April 8, 1986.