Vihvelin v. Saint John (City), (2000) 229 N.B.R.(2d) 1 (TD)

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: July 18, 2000
• Jurisdiction: New Brunswick
• Citations: (2000), 229 N.B.R.(2d) 1 (TD)

Vihvelin v. Saint John (2000), 229 N.B.R.(2d) 1 (TD);

    229 R.N.-B.(2e) 1; 592 A.P.R. 1

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.B.R.(2d) TBEd. AU.006

Peeter Vihvelin, Kathryn Vihvelin, Thomas Vihvelin and Cynthia Vihvelin (applicants) v. The City of Saint John (respondent)

(S/M/129/98)

Indexed As: Vihvelin v. Saint John (City)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

July 18, 2000.

Summary:

The landowners owned two lots across which ran a railway line (66 foot wide right-of-way held by CP). The land­owners owned the land under the railway bed. CP aban­doned the line in 1987 and removed the tracks and ties in 1988. The landowners landscaped the area and claimed title, which was not objected to by CP. The city wished to construct a trunk sewer line under the railway line bed. The city took an assign­ment of the right-of-way from CP in 1995. The city offered the land­owners $1,700 in compensation for the municipal services easement across their lands. The landowners rejected the offer and applied under the Expropriation Act for compen­sation. The landowners submitted that the city's offer was based on the city's claim as assignee of the right-of-way, but the land­owners sub­mitted that CP had nothing to assign in 1995 because the right-of-way had been extin­guished and the landowners held title to the land free and clear from any right-of-way.

The New Brunswick Court of Queen's Bench, Trial Division, first held that the rail way right-of-way had been extinguished by the time the city took an assignment of CP's interest in 1995. Accordingly, the landown­ers owned the former right-of-way land in fee simple at the time the city expropriated the land for a municipal services easement. The court fixed compensation for the ease­ment at $10 per square metre, for a total of $12,100 plus $500 for the one year tempo­rary construction easement. No award was made for injurious affection and the land­owners were awarded $8,000 costs plus reasonable disbursements and appraisals.

Expropriation - Topic 1200

Measure of compensation - Injurious affec­tion or damage to unexpropriated portion - General - [See Expropriation - Topic 3011 ].

Expropriation - Topic 2330

Practice and procedure - Costs - Reason­able costs - [See Expropriation - Topic 3011 ].

Expropriation - Topic 3011

Compensation awards - Particular awards - Easement or right of way - A railway line (66 foot wide right-of-way held by CP) ran across the landowner's properties - The railway line was constructed in the 1870's - The landowners retained owner­ship of the land under the railway bed - CP ob­tained permission to abandon the line in 1987 and removed the tracks and ties in 1988 - The landowners thereafter claimed title, which was not objected to by CP - The city wished to construct a trunk sewer line under the railway line bed - The city offered the landowners $1,700 in compen­sation for the municipal services easement - The landowners rejected the offer and sought compensation under the Expropri­ation Act - The landowners sub­mitted that the city's offer was erroneously based on the city being an assignee of the right-of-way, whereas the right-of-way had been extinguished by 1995 and the landowners held title to the land free and clear from any right-of-way - The New Brunswick Court of Queen's Bench, Trial Division, held that the right-of-way had been extin­guished - Accordingly, the landowners owned the former right-of-way land in fee simple at the time the city expropriated the land for a municipal services easement - The court fixed com­pensation for the easement at $10 per square metre, for a total of $12,100 plus $500 for the one year temporary construc­tion easement - No award was made for injurious affection and the landowners were awarded $8,000 costs plus reasonable disbursements and ap­praisals - See para­graphs 124 to 176.

Expropriation - Topic 4010

Taking of title - Statutory power - Use of land other than that for which it was ex­propriated - [See Real Property - Topic 7087 ].

Railways - Topic 1146

Regulation - Abandonment of lines or discontinuance of service - Branch lines - [See Real Property - Topic 7087 ].

Real Property - Topic 7087

Easements, licences and prescriptive rights - Rights of way - Extinguishment - A railway line (66 foot wide right-of-way held by CP) ran across the landowner's properties - The railway line was con­structed in the 1870's and the taking of the land was pursuant to statute - The land­owners retained ownership of the land under the railway bed - CP obtained per­mission to abandon the line in 1987 and removed the tracks and ties in 1988 - The landowners thereafter claimed title, which was not objected to by CP - The city wished to construct a trunk sewer line under the railway line bed - The city took an assignment of CP's interest in 1995 - The city offered the landowners $1,700 in compensation for the municipal services easement across their lands - The land­owners rejected the offer and sought com­pensation under the Expropriation Act - The landowners submitted that the city's offer was erroneously based on the city being an assignee of the right-of-way, whereas the landowners submitted that the right-of-way had been extinguished by 1995 and the landowners held title to the land free and clear from any right-of-way - The New Brunswick Court of Queen's Bench, Trial Division, after examining the relevant legislation and the conduct of all parties, held that the right-of-way had been extinguished by the time the city took an assignment of CP's interest in 1995 - Accordingly, the landowners owned the former right-of-way land in fee simple at the time the city expropriated the land for a municipal services easement - See para­graphs 32 to 123.

Real Property - Topic 7200

Easements, licences and prescriptive rights - Extinguishment of easements - Aban­donment - [See Real Property - Topic 7087 ].

Cases Noticed:

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, appld. [para. 54].

Hughes v. Fredericton (City) (1999), 216 N.B.R.(2d) 387; 552 A.P.R. 387 (T.D.), affd. (2000), 225 N.B.R.(2d) 264; 578 A.P.R. 264 (C.A.), refd to. [para. 78].

Canadian Pacific Ltd. et al. v. Lowe (1998), 172 N.S.R.(2d) 89; 524 A.P.R. 89 (S.C.), refd to. [para. 81].

Prince Edward Island (Attorney General) v. Thompson et al. (1999), 173 Nfld. & P.E.I.R. 22; 530 A.P.R. 22 (P.E.I.T.D.), refd to. [para. 90].

Rideout v. Howlett (1913), 13 D.L.R. 293 (N.B.T.D.), refd to. [para. 100].

Silliker v. Newcastle (Town) (1974), 10 N.B.R.(2d) 118; 4 A.P.R. 118 (T.D.), refd to. [para. 113].

British Columbia Hydro & Power Author­ity v. Bossio Motors Ltd. (1987), 30 L.C.R. 126, refd to. [para. 144].

Irving Oil Co. v. R., [1946] S.C.R. 551; [1946] 4 D.L.R. 625, refd to. [para. 145].

Gagetown Lumber Co. v. New Brunswick (Attorney General), [1957] S.C.R. 44; 6 D.L.R.(2d) 657, refd to. [para. 146].

Pitcher v. New Brunswick (1992), 48 L.C.R. 163 (N.B.T.D.), refd to. [para. 167].

Daeres v. Saint John (City) (1989), 41 L.C.R. 17; 1 R.P.R.(2d) 311, refd to. [para. 175].

Ward v. Hillsborough (1988), 40 L.C.R. 185, refd to. [para. 175].

Statutes Noticed:

Construction of Railways, An Act in Aid of, S.N.B. 1864, c. 3, sect. 2 [para. 57].

Expropriation Act, R.S.N.B. 1973, c. E-14, sect. 32 [para. 174]; sect. 39 [para. 124]; sect. 52 [para. 173].

Grand Southern Railway Company, An Act to Incorporate, S.N.B. 1872, c. 27, sect. 1 [para. 34]; sect. 11, sect. 12 [para. 115].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), p. 970 [para. 68].

Appraisal Institute of Canada, Uniform Standards of Professional Appraisal Practice (1995 Can. Supp.), generally [para. 141].

Black's Law Dictionary (7th Ed.) [para. 98].

Halsbury's Laws of England (4th Ed.), vol. 14, para. 121 [para. 72]; vol. 21, pp. 11 [para. 101]; 13 [para. 102]; 51 [para. 103].

Todd, Eric C.E., The Law of Expropriation and Compensation in Canada, pp. 3 [para. 112]; 285 [para. 162]; 343 [para. 163]; 346 [para. 164].

Counsel:

Rodney J. Gillis, Q.C., and Nancy E. Forbes, for the applicants;

G. Patrick Gorman, Q.C., and Lynda D. Farrell, for the respondent.

This application was heard on April 4-6, 2000, before Glennie, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Saint John, who delivered the following judgment on July 18, 2000.