POW Investments Ltd. v. Nova Scotia, (1973) 5 N.S.R.(2d) 121 (CA)

• Judge: McKinnon, C.J.N.S., Coffin and Cooper, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 11, 1973
• Jurisdiction: Nova Scotia
• Citations: (1973), 5 N.S.R.(2d) 121 (CA)

POW Inv. Ltd. v. N.S. (1973), 5 N.S.R.(2d) 121 (CA)

MLB headnote and full text

POW Investments Ltd. v. Province of Nova Scotia

Indexed As: POW Investments Ltd. v. Nova Scotia

Nova Scotia Supreme Court

Appeal Division

McKinnon, C.J.N.S., Coffin and Cooper, JJ.A.

January 11, 1973.

Summary:

This case arose out of a claim for compensation by a landowner for 428 acres of undeveloped land suitable for subdivision purposes. The 428 acres of undeveloped land was taken by the Nova Scotia Housing Commission for a housing development. Of the 428 acres, 60 acres were located in the City of Halifax and 368 acres in the County of Halifax. The 428 acres consisted of undeveloped timberland including a swampy area. The landowner intended to develop the land for residential housing purposes. The trial court awarded the landowner $210,000.00 plus $8,224.00 for special damages see 4 N.S.R.(2d) 84. On appeal the award to the landowner was increased to $345,450.00 plus $8,224.00 special damages. A notice of appeal to the Supreme Court of Canada has been filed - see 1973 Bulletin of Proceedings taken in the Supreme Court of Canada at page 103.

The appeal court stated that undeveloped land suitable for subdivision purposes should be valued by taking into consideration the immediate potential of all or part of the land - see paragraph 53. The appeal court stated that land "reasonably ripe for development" should be valued in accordance with the prices paid in the neighbourhood for land immediately required for subdivision purposes - see paragraph 33.

The appeal court stated that the trial court overlooked material evidence of fact with respect to the immediate development potential of certain portions of the land taken. The appeal court placed a valuation on the 428 acres broken down as follows:

30 acres at $2,250 per acre - see paragraph 61 - $67,500.00

27.6 acres at $1,500 per acre - see paragraph 63 - $40,000.00

25.5 acres at $1,500 per acre - see paragraph 61 - $38,250.00

333.9 acres at $600 per acre - see paragraph 64 - $199,700.00

TOTAL $345,450.00

Expropriation - Topic 1130

Measure of compensation - Taking of land - Potential value of undeveloped land suitable for subdivision purposes - The Nova Scotia Court of Appeal stated that such undeveloped land should be valued by taking into account the possibility of all or part of the land being used in the immediate or reasonably near future for building purposes - Paragraph 33.

Expropriation - Topic 2200

Procedure - Appeals - General principles - The Nova Scotia Court of Appeal stated that its duty is to determine whether the arbitrator "proceeded on some incorrect principle or overlooked or misapprehended some material evidence of fact" - Paragraph 12.

Expropriation - Topic 3004

Compensation award - Undeveloped land suitable for subdivision purposes - Nova Scotia Housing Commission took 428 acres of undeveloped land on the outskirts of the City of Halifax for a housing development - Nova Scotia Court of Appeal increased the award to the landowner from $210,000.00 to $345,450.00.

Cases Noticed:

Cedar Rapids Manufacturing & Power Co. v. LaCoste, [1914] A.C. 569, folld.

Diggon-Hibben v. R., [1949] S.C.R. 712, folld.

H. v. Cynch's Ltd., [1921] Ex. C.R. 158, folld.

R. v. Eastern Trust, [1945] Ex. C.R. 115, folld.

University of Toronto v. Zeta Psi Elders Association of Toronto, [1969] S.C.R. 443, folld.

Ives and The Queen (1969], 58 D.L.R.(2d) 425, folld.

Vyricherla Narayana Gajapatiraju v. The Revenue Divisional Officer, Vizagapatam, [1939] A.C. 302, foIId.

Re Devitt and Minister of Public Works for Ontario, [1968] 2 O.R. 464, dist.

Counsel:

H.F. Jackson, Q.C., and D. Reardon, for the appellant;

Ian H. M. Palmeter, Q.C., and Willard Strug, and Terence R. Donahoe, Q.C., for the respondent.

The judgment of the court was delivered by Cooper, J.A.