TransAlta Utilities Corp. v. Kube et al., (1987) 77 A.R. 290 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 28, 1987
• Citations: (1987), 77 A.R. 290 (QB)

TransAlta Utilities Corp. v. Kube (1987), 77 A.R. 290 (QB)

MLB headnote and full text

TransAlta Utilities Corporation (appellant/cross-respondent) v. Alfred Kube and Jutta Helga Kube (respondents/cross-appellants) and West Parkland Gas Co-op Ltd., County of Parkland No. 31, Richard Mullback and Stony Plain District Savings & Credit Union Ltd. (respondents/nonparticipating parties)

(Action No. 8503-15237)

Indexed As: TransAlta Utilities Corp. v. Kube et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Stratton, J.

January 28, 1987.

Summary:

TransAlta obtained a right of way over 9.88 acres of land for construction of power transmission lines. Three towers were placed on the land. The Surface Rights Board awarded the landowner, inter alia, $750.00 per acre for the value of the land, $3,000.00 for injurious affection, $1,000.00 for inconvenience and nuisance and annual payments of $270.00 per year. TransAlta appealed the awards for injurious affection and inconvenience and nuisance. The landowners cross-appealed the awards for the value of the land and injurious affection and sought an increase in the annual payment.

The Alberta Court of Queen's Bench dismissed both the appeal and the cross-appeal.

Mines and Minerals - Topic 6103

Operation of mines, quarries and wells - Compensation to owners of surface rights - Relevant considerations - Pattern of negotiated settlements - TransAlta obtained a right of way over 9.88 acres of land for construction of power transmission lines - The Surface Rights Board fixed compensation for the value of the land at $750.00 per acre on the basis of 14 similar negotiated settlements in the area - The Alberta Court of Queen's Bench held that the board did not err in valuing the land on that basis - See paragraphs 9 to 11.

Mines and Minerals - Topic 6114

Operation of mines, quarries and wells - Compensation to owners of surface rights - Costs and costs of appeal - Section 26(9) of the Surface Rights Act provided that an operator who appealed a decision of the Surface Rights Board was liable for costs on a solicitor and client basis whether the appeal was successful or not - The Act was silent on costs where both the operator and landowner appealed and both were unsuccessful - The Alberta Court of Queen's Bench held that the spirit of the Act was met by awarding the owners 90% of their solicitor and client costs rather than all their costs - See paragraphs 20 to 21.

Mines and Minerals - Topic 6144

Operation of mines, quarries and wells - Compensation to owners of surface rights - Awards - Judicial review of awards - Scope of - Section 26(6) of the Surface Rights Act provided that an appeal from the Surface Rights Board was a "new hearing" - The Alberta Court of Queen's Bench held that a "new hearing" was not a trial de novo - The court was not to ignore the findings of the board and should not determine the issues exclusively upon the evidence before it - The board's findings were entitled to substantial evidentiary value and cogent evidence was required before the board's award would be varied - In a case where the record of the board's processes was so scarce that it could not reasonably be given substantial evidentiary value, the new hearing would closely resemble a trial de novo - However, the appellant still had the onus of establishing a significant disparity between what was awarded and what ought to have been awarded - See paragraphs 5 to 8.

Mines and Minerals - Topic 6153

Operation of mines, quarries and wells - Compensation to owners of surface rights - Awards - Inconvenience - TransAlta obtained a right of way over 9.88 acres for construction of power transmission lines - The landowners spent time negotiating with TransAlta, incurring increased supervision of farming operations during the construction period; TransAlta employees used the landowner's personal driveway at certain times; and the landowners suffered a loss of privacy due to the removal of trees - The Alberta Court of Queen's Bench affirmed an award of $1,000.00 for inconvenience and nuisance - See paragraphs 16 to 18.

Mines and Minerals - Topic 6157

Operation of mines, quarries and wells - Compensation to owners of surface rights - Awards - Adverse effect on remaining land of owner - TransAlta obtained a right of way over 9.88 acres for construction of power transmission lines - Three towers were erected on the land - The lines would decrease the value of the property to some purchasers - The towers caused a loss of aesthetic value - The Alberta Court of Queen's Bench affirmed an award of $3,000.00 as compensation for the adverse effect of the transmission lines on the aesthetic and market value of the land - See paragraphs 12 to 15.

Cases Noticed:

Lamb v. Canadian Oil and Gas Ltd., [1976] 4 W.W.R. 79; 8 N.R. 613 (S.C.C.), consd. [para. 5].

Caswell v. Alexandra Petroleums Ltd., [1972] 3 W.W.R. 706 (Alta. C.A.), refd to. [para. 6].

Whitehouse v. Sun Oil Co. Ltd., [1982] 6 W.W.R. 289; 40 A.R. 380 (C.A.), appld. [para. 7].

Paloma Petroleum Ltd. v. Hutterian Brethren Church of Smoky Lake (1987), 77 A.R. 288 (C.A.), consd. [para. 8].

Livingston v. Siebens Oil, [1978] 3 W.W.R. 484; 8 A.R. 439 (C.A.), refd to. [para. 10].

Petryshen v. Nova (1982), 23 Alta. L.R.(2d) 200 (C.A.), refd to. [para. 10].

Nova v. Bain, [1985] 4 W.W.R. 460 (Alta. C.A.), refd to. [para. 10].

Walde v. Great Basins Petroleum Ltd. (1985), 65 A.R. 358; 41 Alta. L.R.(2d) 193 (C.A.), refd to. [para. 10].

Voyageur Petroleums Ltd. v. Spaulding (1977), 5 A.R. 302 (D.C.), refd to. [para. 12].

TransAlta Utilities Corporation v. Olson (1984), 31 L.C.R. 134 (Alta. Q.B.), refd to [para. 12].

Toad Hall Farm Inc. v. Ontario Hydro (1982), 25 L.C.R. 373 (Ont. L.C.B.), affd. 32 L.C.R. 133 (Ont. Div. Ct.), refd to. [para. 14].

Re Howe Street Ltd. (1955), 14 W.W.R.(N.S.) 337 (B.C.S.C.), refd to. [para. 14].

Re Inland Holdings (Western) Ltd. (1984), 66 A.R. 117; 30 L.C.R. 338 (L.C.B.), refd to. [para. 14].

Barriage v. Ontario Hydro (1982), 25 L.C.R. 162, (Ont. L.C.B.), refd to. [para. 14].

Statutes Noticed:

Surface Rights Act, S.A. 1983, c. S-27.1, sect. 26(6) [para. 5]; sect. 26(9) [para. 20].

Counsel:

P.J. Renaud, for the appellant (TransAlta);

G.S.D. Wright, for the respondents (Mr. & Mrs. Kube).

This appeal and cross-appeal were heard before Stratton, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 28, 1987.