Sydney River United Protestant Church (Trustees) v. Nova Scotia, (1971) 7 N.S.R.(2d) 128 (TD)

• Judge: Bissett, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 02, 1971
• Jurisdiction: Nova Scotia
• Citations: (1971), 7 N.S.R.(2d) 128 (TD)

Sydney River United Church v. N.S. (1971), 7 N.S.R.(2d) 128 (TD)

MLB headnote and full text

Trustees of Sydney River United Protestant Church v. Province of Nova Scotia

Indexed As: Sydney River United Protestant Church (Trustees) v. Nova Scotia

Nova Scotia Supreme Court

Trial Division

Bissett, J.

August 2, 1971.

Summary:

This case arose out of a claim for compensation for land taken by the Province of Nova Scotia, Highways Department. The Department of Highways expropriated between 1966 and 1968, 1.49 acres of the claimant's 10.40 acre church property for highway purposes. The claimant's property consisted of two adjacent parcels of land. The effect of expropriation was to divide the claimant's property in two almost equal portions by a 15 foot high highway. The expropriation rendered the two parcels of land mutually inaccessible, forcing the church to abandon plans for recreational development on the property. Further the expropriation resulted in the destruction of a rink and building used by the church. The Nova Scotia Supreme Court, Trial Division, applied the "before and after" method of valuation and awarded the landowner $56,000.00 for loss of land, loss of access, loss of potential value and injurious affection.

The expropriation resulted in the church being surrounded by a highway on three sides. The trial court refused that part of the claim respecting improvements to the rear portion of the church necessitated by its new highway frontage - see paragraph 23 and 24.

The compensation award was broken down as follows:

1. $37,000.00 being the loss in value to the claimant's land - see paragraph 18.

2. $ 9,000.00 for the value of the rink and the adjoining buildings - paragraph 22 and 27.

3. $10,000.00 for loss of potential value of the land paragraph 31.

Expropriation - Topic 1010

Measure of compensation - Valuation of land - Value to owner - General - The Nova Scotia Supreme Court, Trial Division, stated the principle to be used in determining "value" of land - Paragraph 1.

Expropriation - Topic 1040

Measure of compensation - Valuation of land - Method of valuation - Before and after method - The department of highways expropriated 1.49 acres of claimant's 10.40 acre property - The expropriation left the claimant's property divided into two parts by a 15 foot high highway - The Nova Scotia Supreme Court, Trial Division, applied the "before and after" method of valuation in order to determine the loss of the claimant trial court awarded $56,000.00 for loss of land, loss of access, loss of potential value and injurious affection - Paragraph 31.

Expropriation - Topic 1130

Measure of compensation - Potential value - Land undeveloped church property - The department of highways expropriated 1.49 acres of the claimant's 10.40 acre property - The expropriation had the effect of dividing the claimant's property into two parts by a 15 foot high highway - The expropriation rendered one of two parcels of land mutually inaccessible - The church had been developing part of it's property for recreational purposes - The Nova Scotia Supreme Court, Trial Division, awarded the claimant $10,000.00 for the present value of the future advantages that the land possessed before the expropriation - Paragraph 31.

Expropriation - Topic 1155

Measure of compensation - Special interests - Land 99 year leasehold - Department of highways divided two adjoining parcels of church owned property with a 15 foot high highway - One parcel of the claimant's property was held on a 99 year lease - The Nova Scotia Supreme Court, Trial Division, stated that leased parcel was to be considered a freehold property for appraisal purposes - Paragraph 15.

Cases Noticed:

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

Woods Manufacturing Company Limited v. His Majesty the King, [1951] S.C.R. 504, folld.

Davies v. James Bay Railway (1910), 20 O.L.R. 534, folld.

Hydro Commission v. Porter (1918), 15 O.W.N. 19 (C.A.), folld.

City of Halifax v. Bauditz (1971), 2 N.S.R.(2d) 680; 14 D.L.R.(3d) 357, folld.

R. v. Elgin Realty Company, Limited, [1943] S.C.R. 49, folld.

Mayor, & C., of Montreal v. Brown and Springle, [1876-77] 2 A.C. 168, folld.

R. v. Aileen M. Drew, [1961] S.C.R. 614, folld.

Statutes Noticed:

Expropriation Act, R.S.N.S., 1954, c. 9, sect. 14.

Counsel:

J.G. Hackett, Q.C., for the plaintiff;

S.D. Campbell, for the defendant.