Carvell v. New Brunswick (Minister of Highways), (1975) 11 N.B.R.(2d) 398 (CA)

• Judge: Hughes, C.J.N.B., Bugold and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 20, 1975
• Jurisdiction: New Brunswick
• Citations: (1975), 11 N.B.R.(2d) 398 (CA)

Carvell v. N.B. (1975), 11 N.B.R.(2d) 398 (CA);

    11 R.N.-B.(2e) 398; 7 A.P.R. 398

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Carvell v. Minister of Highways

Indexed As: Carvell v. New Brunswick (Minister of Highways)

Répertorié: Carvell v. New Brunswick (Minister of Highways)

New Brunswick Court of Appeal

Hughes, C.J.N.B., Bugold and Ryan, JJ.A.

August 1, 1975.

Summary:

Résumé:

This case arose out of two separate expropriations of the claimant's farmland. The land was taken by the Minister of Highways for highway purposes. The claimant's farm was located in the City of Saint John and was suitable for residential and commercial development. The initial expropriation in September of 1970 resulted in a severance of 150 acres of the claimant's 272 acre farm. At the time of the initial expropriation there was no "clear probability" of any public highway access to the severed lands. In January 1973, the Minister of Highways expropriated additional land out of the claimant's farm for highway purposes which resulted in the probability of public highway access to the severed lands. The land compensation board awarded the claimant $244,900 for the lands taken without making any award for compensation for severance of the 150 acres - see 10 N.B.R.(2d) 425.

On appeal to the New Brunswick Court of Appeal the appeal was allowed in part. The Court of Appeal increased the compensation award to $296, 900. The Court of Appeal allowed the claimant $83,400 for injurious affection for severance of 135.4 acres (150.1 acres less 14.7 acres of marshland - see paragraph 37). The Court of Appeal stated that the severed lands had a value of $2,000 per acre before the expropriation. The Court of Appeal fixed the severance damage at the time of the first expropriation at $1,000 per acre and also fixed the value of the probable advantage of public highway access resulting from the second expropriation at $500 per acre - resulting in a compensation award for injurious affection for severance of $500 per acre - see paragraph 41.

Expropriation - Topic 3003

Compensation award - Farmland - The Minister of Highways took 75.5 acres of farmland in the City of Saint John for highway purposes - The land taken was suitable for residential and commercial development - The New Brunswick Court of Appeal awarded the owner $296,900 being 31.4 acres at $1,000 per acre, 37.8 acres at $2,000 per acre, 6.3 acres at $15,000 per acre, and $95,400 for injurious affection.

Expropriation - Topic 1204

Measure of compensation - Injurious affection - Valuation of severed land - The Minister of Highways took a strip of the claimant's farmland for highway purposes which severed 150 acres of a 272 acre farm - There was no highway access at the time of the expropriation to the severed 150 acres - The New Brunswick Court of Appeal stated that the severed lands were of less value after the expropriation because there was no "clear probability" of access to the public highway system - See paragraph 34.

Expropriation - Topic 1200

Measure of compensation - Injurious affection - The New Brunswick Court of Appeal stated that compensation for injurious affection or severance is prima facie the diminution in value of the remaining lands of the claimant after expropriation - See paragraph 33.

Expropriation - Topic 3100

Compensation award - Award for injurious affection resulting from the severance of a farm - The Minister of Highways took a strip of the claimant's farmland in the City of Saint John for highway purposes which severed 150 acres of a 272 acre farm - The New Brunswick Court of Appeal considered the loss resulting from the expropriation and the advantage resulting from the probable construction of highway access to the severed land - The Court of Appeal valued the severed land at $2,000 per acre before the expropriation, fixed the severance damage at $1,000 per acre, fixed the probable advantage of highway access to the severed land at $500 per acre, resulting in a compensation award for injurious affection for severance of $500 per acre.

Cases Noticed:

R. v. Consolidated Motors Limited, [1949] Ex. C.R. 254, folld. [para 33].

R. v. Potvin, [1952] Ex. C.R. 436, folld. [para. 33].

Statutes Noticed:

Expropriation Act, R.S.N.B. 1952, c. 77, sect. 11, sect. 12, sect. 13 [para. 32].

Counsel:

John P. Palmer, Q.C., for the claimants/appellants;

Peter McNutt, for the respondent [Minister of Highways].

This appeal was heard by the Appeal Division on February 20, 1975. Judgment was delivered by the Appeal Division on August 1, 1975.

The judgment of the Appeal Division was delivered by Hughes, C.J.N.B.