True Energy Inc. v. Kitching et al., (2007) 452 A.R. 356 (QB)

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 03, 2007
• Citations: (2007), 452 A.R. 356 (QB)

True Energy Inc. v. Kitching (2007), 452 A.R. 356 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. OC.051

True Energy Inc. (appellant) v. Nigel Andrew Kitching (respondent) and Farm Credit Canada and Response Energy Corporation (respondents)

(0612 00150)

Indexed As: True Energy Inc. v. Kitching et al.

Alberta Court of Queen's Bench

Judicial District of Wetaskiwin

Sulyma, J.

April 3, 2007.

Summary:

A well had been present on land since 1957 and since 1962 had been utilized as a water disposal well. The parties were unable to negotiate a surface rights agreement. The matter of compensation was heard by the Surface Rights Board. The Board's decision set first year compensation utilizing $1,605 per acre (purchase price), granted general disturbance of $2,000 per acre, loss of use at $250 per acre and awarded adverse effect of $4,000 with an additional adverse effect based on adjacent and impacted land using $650. The latter resulted in a total of $4,911.30. The Board further set annual compensation utilizing the loss of use factor of $250 per acre and an annual amount for adverse effect of $4,000. The appellants appealed.

The Alberta Court of Queen's Bench dismissed the appeal.

Mines and Minerals - Topic 6105

Operation of mines, quarries and wells - Compensation to owners of surface rights - Valuation of land - A well had been present on land since 1957 and since 1962 had been utilized as a water disposal well - The parties were unable to negotiate a surface rights agreement - The matter of compensation was heard by the Surface Rights Board - The Board's decision set first year compensation utilizing $1,605 per acre (purchase price), granted general disturbance of $2,000 per acre, loss of use at $250 per acre and awarded adverse effect of $4,000 with an additional adverse effect based on adjacent and impacted land using $650 - The latter resulted in a total of $4,911.30 - The Board further set annual compensation utilizing the loss of use factor of $250 per acre and an annual amount for adverse effect of $4,000 - The appellants appealed - The Alberta Court of Queen's Bench dismissed the appeal - The Board was entitled to consider all of the factors under s. 25(1) of the Surface Rights Act - The Board determined the compensation on a per acre value on the highest approved use of the land - The Board was entitled to do so - The onus was on the appellant to establish that there was a significant disparity between what was awarded and what ought to have been awarded - The appellants did not do so.

Cases Noticed:

Lamb v. Canadian Reserve Oil & Gas Ltd., [1977] 1 S.C.R. 517; 8 N.R. 613, refd to. [para. 8].

Caswell v. Alexandra Petroluems Ltd. (1972), 2 L.C.R. 229 (Alta. C.A.), refd to. [para. 8].

Intensity Resources Ltd. v. Dobish (1989), 94 A.R. 366; 41 L.C.R. 169 (Q.B.), refd to. [para. 8].

Whitehouse v. Sun Oil Co. (1982), 40 A.R. 380; 22 Alta. L.R. 97 (C.A.), refd to. [para. 9].

TransAlta Utilities Corp. v. Kube et al. (1987), 77 A.R. 290 (Q.B.), refd to. [para. 10].

Muntean v. GNE Resources Ltd. (1993), 143 A.R. 197 (Q.B.), refd to. [para. 28].

Zubick et al. v. Corridor Pipeline Ltd. (2002), 315 A.R. 274 (Q.B.), refd to. [para. 48].

Sandboe et al. v. Coseka Resources Ltd. (1990), 108 A.R. 226 (Q.B.), refd to. [para. 48].

Esso Resources Canada Ltd. v. Maine et al. (1985), 62 A.R. 155 (Q.B.), refd to. [para. 48].

Dome Petroleum Ltd. v. Richards and Alberta Power Ltd. (1985), 66 A.R. 245 (Q.B.), refd to. [para. 55].

Statutes Noticed:

Surface Rights Act, S.A. 1983, c. S-27.1, sect. 25(1) [para. 38 et seq.].

Counsel:

R.C. Swist, for the appellant;

D. Carter, for the respondent.

This appeal was heard by Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Wetaskiwin, who delivered the following oral judgment on April 3, 2007.