Nelson et al. v. 1153696 Alberta Ltd.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Moen, J.
• Citation: (2009), 478 A.R. 208 (QB),2009 ABQB 732
• Date: 01 May 2009

Nelson v. 1153696 Alta. (2009), 478 A.R. 208 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. DE.126

Kenneth E. Nelson, Karen L. Nelson and Matrix Marine Equipment Ltd. (plaintiffs) v. 1153696 Alberta Ltd. (defendant)

(0503-08689; 2009 ABQB 732)

Indexed As: Nelson et al. v. 1153696 Alberta Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

December 11, 2009.

Summary:

In 1985, the plaintiff purchased a 42 acre parcel of land. He built a home and a man-made lake. He developed a marine repair facility and a water-skiing facility. Each year, thousands of persons used the facilities. Rabbit Hill Road provided access to the property. As the plaintiff did not do a title search, he did not discover that it was a private road running across Stelter's property. However, Stelter never did anything to stop public access. In 2005, Stelter sold his property to the defendant. The defendant denied use of Rabbit Hill Road. The plaintiff could not get to his home and his business was effectively shut down. The plaintiff sued to enforce access and obtained temporary injunctions and a temporary road bylaw to permit access pending trial. At issue was whether Stelter or a previous owner dedicated Rabbit Hill Road as a public road or, alternatively, whether the plaintiff had an easement across the Stelter lands at common law or in equity (i.e., easement of necessity, easement arising as a result of apparent accommodation, or equitable easement created by proprietary estoppel).

The Alberta Court of Queen's Bench held that Rabbit Hill Road had been dedicated as a public highway, precluding the defendant from interfering with public usage. The court rejected the alternative claim of an equitable easement.

Equity - Topic 1482

Equitable principles respecting relief - Clean hands doctrine - Application of - [See Estoppel - Topic 1324 ].

Estoppel - Topic 1324

Estoppel in pais (by conduct) - Acquiescence or encouragement - Proprietary estoppel - In 1985, the plaintiff purchased a 42 acre parcel upon which he operated a marine service facility and a water skiing facility - Access to the parcel was via the Rabbit Hill Road, which ran across Stelter's property - A ski hill further down the road from the plaintiff's parcel was accessed by the Rabbit Hill Road upon payment of an annual lease payment - There was no lease or other financial arrangement between the plaintiff and Stelter - Thousands of persons used the road each year to access the plaintiff's facilities - Although the plaintiff knew or ought to have known the road was private (did not do title search), Stelter did nothing to impede public use of the road (no signage, no closures and no stopping anyone from using it) - In 2005, Stelter sold his property to the defendant - Upon discovering that the road was not public, the defendant denied use of the road by the plaintiff and the public - The plaintiff claimed an easement by way of proprietary estoppel - The plaintiff submitted that Stelter induced, encouraged or allowed the plaintiff to develop his facilities by not objecting to public traffic and that, consequently, the plaintiff undertook a large-scale property development to his detriment, which result was inequitable and unconscionable - The Alberta Court of Queen's Bench dismissed the claim - There was no evidence that Stelter induced or encouraged the plaintiff to purchase a property without access - The plaintiff, a sophisticated purchaser, inexplicably failed to do a title search - The plaintiff and Stelter were equally at fault - Stelter sat back and did nothing in the face of the plaintiff's development and the plaintiff sat back and took access for granted with knowledge that he had no legal access, improving a property to which he had no legal access - An equitable remedy was denied where the plaintiff did not come to the court with clean hands - He was not misled into thinking that he had a legal right to access - See paragraphs 231 to 303.

Highways - Topic 160

Establishment of highways and public rights of way - Dedication - General - The Alberta Court of Queen's Bench stated that the "Land Titles Act, s. 61(1)(c), has the effect that once dedicated, a road becomes a 'public highway', and that public status exists despite registration of the land to a private landowner in a Torrens system such as Alberta's" - See paragraph 29.

Highways - Topic 162

Establishment of highways and public rights of way - Dedication - Elements (conditions precedent) - The Alberta Court of Queen's Bench stated that "a public highway is created by dedication where two well-established criteria are met: (1) there must be, on the part of the owner, the actual intention to dedicate; and (2) it must appear that the intention was carried out by the way being thrown open to the public and that the way has been accepted by the public ... The second criterion may be subdivided into two separate components: 1. the public highway must be open to the public, and 2. the public must 'accept' the public highway. The question of dedication by an owner is a factual determination." - See paragraphs 38 to 40.

Highways - Topic 164

Establishment of highways and public rights of way - Dedication - What constitutes dedication - In 1985, the plaintiff purchased a 42 acre parcel upon which he operated a marine service facility and a water skiing facility - Access to the parcel was via the Rabbit Hill Road, which ran across Stelter's property - A ski hill further down the road from the plaintiff's parcel was accessed by the Rabbit Hill Road upon payment of an annual lease payment - There was no lease or other financial arrangement between the plaintiff and Stelter - Thousands of persons used the road each year to access the plaintiff's facilities - Stelter did nothing to impede public use of the road (no signage, no closures and no stopping anyone from using it) - In 2005, Stelter sold his property to the defendant - Upon discovering that the road was not public, the defendant denied use of the road by the plaintiff and the public - At issue was whether Stelter or a predecessor in title had dedicated Rabbit Hill Road as a public road - The Alberta Court of Queen's Bench held that Rabbit Hill Road had been dedicated as a public highway - There was no discernible difference between the county road and Rabbit Hill Road - Rabbit Hill Road had been used as a public road since the 1960s - There were no signs restricting access, no closures and no physical obstructions or other attempts to prevent the public from using the Road - There was a history of acquiescence to public use - All witnesses who had used the Road for years believed it to be a public road - The court held that once the road had been dedicated as a public highway, Stelter or the defendant could not interfere with public usage - Stelter, by his acquiescence, intended to dedicate the Rabbit Hill Road as a public highway and the public used and accepted it as such - See paragraphs 1 to 169.

Real Property - Topic 7006

Easements, licences and prescriptive rights - General principles - Equitable easement - In 1985, the plaintiff purchased a 42 acre parcel of land upon which a home was built and two businesses were operated (marine repair facility and a water-skiing facility on a man-made lake) - Each year, thousands of persons used the facilities - Rabbit Hill Road provided access to the property - It was believed to be a common access road and ran across the adjoining property owned by Stelter - In 2005, Stelter sold his property to the defendant - Rabbit Hill Road was discovered to not be a public road - The defendant denied use of Rabbit Hill Road - The plaintiff could not get to his home and his business was effectively shut down - At issue was whether the plaintiff had an equitable easement across the Stelter lands as a result of apparent accommodation - The Alberta Court of Queen's Bench held that like an easement of necessity, an easement of apparent accommodation arose at the point a landowner divided the property - The requirements of such an easement were that it be continuous and apparent, that the easement be necessary for the reasonable use of the property granted (less onerous than easement of necessity) and that the easement was used by the owner before the transfer - The plaintiff failed to establish an easement of apparent accommodation - The evidence was insufficient to establish what was "reasonable use" or "reasonable enjoyment" - There was evidence of continuous and apparent use, but not back to the early 1900s - Finally, an easement of apparent accommodation arose only where the owner of the undivided property (Crown) had actually used the route of Rabbit Hill Road in an apparent manner - There was no evidence of such Crown use at the relevant time - See paragraphs 205 to 230.

Real Property - Topic 7080

Easements, licences and prescriptive rights - Rights of way - Way of necessity - General - The Alberta Court of Queen's Bench stated that "an easement of necessity is implicitly granted by a landowner when that landowner sells a part of a parcel of land, and either: a) the only access to the sold parcel is via the remainder of the seller's property; in that case the seller must have intended some form of access to the parcel sold and implicitly granted the easement that is necessary to allow access across the seller's remaining land to the sold parcel; or b) the only access to the remaining unsold parcel is via the sold parcel and in that case the seller must have intended to retain some right of access to the unsold parcel, and implicitly retained an easement that is necessary to allow access across the sold parcel to the unsold parcel. In either case, an implied easement of necessity relates to the seller ensuring that either land that is sold or retained remains useful. The seller could not have intended to render land useless during its division and sale." - See paragraphs 181 to 182.

Real Property - Topic 7080

Easements, licences and prescriptive rights - Rights of way - Way of necessity - General - In 1985, the plaintiff purchased a 42 acre parcel of land upon which a home was built and two businesses were operated (marine repair facility and a water-skiing facility on a man-made lake) - Each year, thousands of persons used the facilities - Rabbit Hill Road provided access to the property - It was believed to be a common access road and ran across the adjoining property owned by Stelter - In 2005, Stelter sold his property to the defendant - Rabbit Hill Road was discovered to not be a public road - The defendant denied use of Rabbit Hill Road - The plaintiff could not get to his home and his business was effectively shut down - The plaintiff sued to enforce access and obtained temporary injunctions and a temporary road bylaw to permit access pending trial - At issue was whether Stelter or a previous owner dedicated Rabbit Hill Road as a public road or, alternatively, whether the plaintiff had an easement across the Stelter lands at common law or in equity (i.e., easement of necessity, easement arising as a result of apparent accommodation, or equitable easement created by proprietary estoppel) - The Alberta Court of Queen's Bench held that Rabbit Hill Road had been dedicated as a public highway, precluding the defendant from interfering with public usage - The court rejected the alternative claim of an equitable easement, which would have arisen at the time the property was divided - The claimed easement by necessity was not established - The court stated that "because of a lack of evidence ... I cannot conclude an easement of necessity exists on behalf of [the plaintiff's land] across either the NW or NE quarters of section 6. It must be one, or perhaps, both. If both the NW and NE quarters were sold by the Crown to the same or different owners on the same day, then presumably the owner of [the plaintiff's land] would have a right to an easement of necessity across both quarter sections. However, on the evidence before me, I cannot draw any conclusion, and therefore deny the plaintiff an easement on this ground." - See paragraphs 178 to 204.

Cases Noticed:

Austie v. Aksnowicz (1999), 232 A.R. 118; 195 W.A.C. 118; 1999 ABCA 56, leave to appeal denied (2000), 253 N.R. 197; 255 A.R. 400 (S.C.C.), refd to. [para. 10].

Foothills No. 31 (Municipal District) v. Stockwell (1985), 64 A.R. 335; 41 Alta. L.R.(2d) 184 (C.A.), refd to. [para. 31].

Cook's Road Maintenance Association v. Crowhill Estates (2001), 140 O.A.C. 370; 196 D.L.R.(4th) 35 (C.A.), leave to appeal denied (2002), 289 N.R. 197; 163 O.A.C. 397 (S.C.C.), refd to. [para. 41].

Gibbs et al. v. Grand Bend (Village) et al. (1995), 86 O.A.C. 321; 26 O.R.(3d) 644; 129 D.L.R.(4th) 449 (C.A.), refd to. [para. 43].

Athabasca No. 12 (County) v. 668771 Alberta Ltd., [2001] A.R. Uned. 55; 17 M.P.L.R.(3d) 255; 2001 ABQB 209, refd to. [para. 47].

British Columbia v. Hilyn Holdings Ltd. et al. (1991), 78 D.L.R.(4th) 27; 25 A.C.W.S.(3d) 1110 (B.C.C.A.), refd to. [para. 48].

Fulton v. Creelman, [1931] S.C.R. 221, refd to. [para. 58].

Edmonton (City) v. Lovat Tunnel Equipment Inc. et al. (2000), 258 A.R. 92; 2000 ABQB 40, refd to. [para. 60].

Reed v. Lincoln (Town) (1974), 6 O.R.(2d) 391; 53 D.L.R.(3d) 14 (C.A.), refd to. [para. 64].

Gion v. Santa Cruz (1970), 2 Cal.3d 29; 465 P. 50 (Sup. Ct.), refd to. [para. 69].

Lacombe No. 14 (County) v. L.V. Ranches Ltd. (1992), 130 A.R. 199; 3 Alta. L.R.(3d) 103 (Q.B.), refd to. [para. 72].

Moseley v. Spray Lakes Sawmills (1980) Ltd. et al. (1997), 194 A.R. 384; 47 Alta. L.R.(3d) 217 (Q.B.), refd to. [para. 78].

Hynes and Hynes et al. v. Hynes et al. (1988), 68 Nfld. & P.E.I.R. 56; 209 A.P.R. 56; 8 A.C.W.S.(3d) 333 (Nfld. T.D.), affd. (1989), 79 Nfld. & P.E.I.R. 86; 246 A.P.R. 86; 3 R.P.R.(2d) 142 (Nfld. C.A.), refd to. [para. 133].

Edmonton (City) v. Registrar of North Alberta Land Registration District (1995), 164 A.R. 6; 26 Alta. L.R.(3d) 100 (Q.B.), refd to. [para. 149].

Brady et al. v. Zirnhelt et al. (1998), 111 B.C.A.C. 299; 181 W.A.C. 299; 57 B.C.L.R.(3d) 144 (C.A.), refd to. [para. 157].

Petro-Canada Inc. v. Shaganappi Village Shopping Centre Ltd. (1991), 109 A.R. 237; 76 Alta. L.R.(2d) 162 (C.A.), refd to. [para. 172].

Canada Lands Co. CLC Ltd. v. Trizechahn Office Properties Ltd. (2000), 31 R.P.R.(3d) 39; 2000 ABQB 166, refd to. [para. 172].

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 85 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 173].

Laurie v. Winch, [1953] 1 S.C.R. 49, refd to. [para. 174].

Owners-Condominium Plan No. 7810477 v. Owners-Condominium Plan No. 7711723 (1997), 211 A.R. 338; 55 Alta. L.R.(3d) 198 (Q.B.), affd. (1999), 250 A.R. 131; 213 W.A.C. 131; 1999 ABCA 282, refd to. [para. 175].

Presse et al. v. Ratushny, [2008] A.R. Uned. 469; 169 A.C.W.S.(3d) 900; 2008 ABQB 414, refd to. [para. 178].

Fife v. Cohan, [2007] O.T.C. Uned. F33; 58 R.P.R.(4th) 316; 159 A.C.W.S.(3d) 148 (Sup. Ct.), refd to. [para. 178].

Spartan Developments Ltd. et al. v. 206559 Developments Ltd. et al. (2001), 305 A.R. 139; 2001 ABQB 926, affd. (2003), 346 A.R. 124; 320 W.A.C. 124; 2004 ABCA 12, refd to. [para. 186].

Hough v. Alta. (2000), 284 A.R. 382; 2000 ABQB 1004, refd to. [para. 186].

Rockford Developments Inc. v. Gordon et al. (2006), 59 R.P.R.(4th) 114 (Alta. Q.B.), affd. [2007] A.R. Uned. 147; 59 R.P.R.(4th) 122; 2007 ABCA 63, refd to. [para. 186].

Hirtle v. Ernst and Slauenwhite (1991), 110 N.S.R.(2d) 216; 299 A.P.R. 216; 21 R.P.R.(2d) 95 (S.C.), refd to. [para. 188].

Dobson v. Tulloch et al. (1994), 17 O.R.(3d) 533; 38 R.P.R.(2d) 16 (Gen. Div.), affd. [1997] O.A.C. Uned. 373; 33 O.R.(3d) 800; 72 A.C.W.S.(3d) 1129 (C.A.), refd to. [para. 188].

Wheeldon v. Burrows (1879), 48 L.J. Ch. 853, refd to. [para. 207].

Hart v. McMullen (1900), 30 S.C.R. 245, refd to. [para. 207].

Duvernet v. Eisener, [1951] 4 D.L.R. 406; 29 M.P.R. 231 (N.S.S.C.), refd to. [para. 208].

McClellan v. Powassan Lumber Co. (1908), 17 O.L.R. 32 (C.A.), refd to. [para. 209].

MacVicar v. Maxwell (1959), 23 D.L.R.(2d) 669 (N.S.S.C.), refd to. [para. 209].

Tridon Enterprises Ltd. v. Anderson et al., [2005] A.R. Uned. 384; 43 Alta. L.R.(4th) 326; 2005 ABQB 319, refd to. [para. 211].

Hardy v. Herr, [1965] 1 O.R. 104; 47 D.L.R.(2d) 13 (H.C.), affd. [1965] 2 O.R. 801; 52 D.L.R.(2d) 193 (C.A.), refd to. [para. 213].

Babine Investments Ltd. et al. v. Prince George Shopping Centre Ltd. et al. (2002), 169 B.C.A.C. 27; 276 W.A.C. 27; 212 D.L.R.(4th) 537; 2002 BCCA 289, refd to. [para. 216].

Jones v. Lockhart (1989), 99 N.B.R.(2d) 134; 250 A.P.R. 134 (C.A.), refd to. [para. 217].

Rocky Mountain House (Town) v. Alberta Municipal Insurance Exchange et al. (2007), 428 A.R. 169; 2007 ABQB 548, refd to. [para. 235].

Belvedere v. Brittain Estate (2009), 244 O.A.C. 303; 2009 ONCA 1, refd to. [para. 236].

Tarling Estate, Re, [2008] O.T.C. Uned. F55; 43 E.T.R.(3d) 177; 168 A.C.W.S.(3d) 899 (Sup. Ct.), refd to. [para. 236].

Eberts v. Carleton Condominium Corp. No. 396 et al. (2000), 136 O.A.C. 317; 36 R.P.R.(3d) 104 (C.A.), leave to appeal denied (2001), 271 N.R. 200; 153 O.A.C. 195 (S.C.C.), refd to. [para. 236].

Williston v. Canada (Minister of Indian Affairs and Northern Development) et al. (2005), 274 F.T.R. 260; 2005 FC 829, affd. (2006), 354 N.R. 180; 2006 FCA 316, refd to. [para. 236]. Revell v. Litwin Construction (1973) Ltd. et al. (1991), 6 B.C.A.C. 243; 13 W.A.C. 243; 86 D.L.R.(4th) 169 (C.A.), refd to. [para. 240].

Costco Wholesale Canada Inc. v. Cazalet, [2008] B.C.T.C. Uned. 590; 86 B.C.L.R.(4th) 159; 2008 BCSC 952, refd to. [para. 259].

Statutes Noticed:

Land Titles Act, R.S.A. 2000, c. L-4, sect. 61(1)(c) [para. 28].

Counsel:

J. Cameron Prowse, Q.C., and N. Papadopoulos (Prowse Chowne LLP), for the plaintiffs;

D.R. Peskett (Brownlee LLP), for the defendant.

This action was heard on April 27 to May 1, 2009, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 11, 2009.