T HE N ATURE OF A H IGHWAY:

W HAT M AKES IT “P UBLIC” AND W HAT D OES IT

M EAN FOR B OUNDARY L OCATION?

Presented by Izaak de Rijcke, LL.M., O.L.S., Barrister and Solicitor

Fourth Annual Boundary Law Conference
November 14, 2016
CONSIDERING THE NATURE OF A HIGHWAY

 Jurisdiction

 Ownership

 Physical structure

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PUBLIC RIGHTS IN A “WAY”

The land‐owner enjoys the absolute right to exclude anyone

and to do as he pleases upon his own property. It is idle to say
that the municipality has no such rights upon its streets. It
holds them as trustee for the public. The streets remain
subject to the right of the public to ‘pass and repass;’ and that
character, of course, is of the very essence of a street.

City of Vancouver v. Burchill, 1932 CanLII 29 (SCC)

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ROADS MAY BE GIVEN PUBLIC STATUS THROUGH…

Legislation OR Common Law

 Colonization  Forced roads

roads
 Trespass roads
 Roads by
 Given roads
Quarter
Session  Deviation roads
 Roads by by‐law

 Roads “in lieu”

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MUNICIPAL ACT, 2001

What constitutes highway

26. The following are highways unless they have been closed:

1. All highways that existed on December 31, 2002.

2. All highways established by by‐law of a municipality on or

after January 1, 2003.

3. All highways transferred to a municipality under the Public

Transportation and Highway Improvement Act.

4. All road allowances made by the Crown surveyors that are

located in municipalities.

5. All road allowances, highways, streets and lanes shown on a

registered plan of subdivision.
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NOMINAL WIDTH

 There seems to be a presumption or default position that a

nominal width (66 feet or 1 chain) for roads is preferred over
other evidence.

 Is this justified?

 A wealth of caselaw applying “nominal” width under a

variety of circumstances

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NOMINAL WIDTH: TRESPASS, GIVEN OR FORCED ROADS

 Rowland v. Edmonton (City)

 trail surveyed and given width in excess of 66 feet, but

width limited by statute

 Lacombe (County No. 14) v. L.V. Ranches Ltd.

 increase in width beyond statutory requirement without

calling to the owner’s attention did not constitute act of
dedication by owner

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NOMINAL WIDTH: THE “FUNCTIONAL TEST”

 Nelson v. 1153696 Alberta Ltd.

 Court to determine whether public road had been

established and what was the acceptable width

 66 feet met functional test

 “the minimum dedication that

would functionally permit
continued public activity on
that land”

 i.e., required ditches for drainage and plowed snow

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NOMINAL WIDTH: SATISFYING THE SURVEYS ACT

 Section 58 posts and monuments planted to designate land

for the Ministry of Transportation under the Public
Transportation and Highway Improvement Act or a
predecessor thereof are “true and unalterable and fix the
boundaries of such parcel, whether or not the actual
measurements between the posts or monuments are the
same as shown on the plan thereof […]”

 Reference is to monuments rather than dimensions

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NOMINAL WIDTH: SATISFYING THE SURVEYS ACT

 Surveys Act s. 43(1) One

chain width requirement
for road allowances

 Survey Methods R.R.O.

1990, Reg. 1029

 Requirement that one

needs to “have regard
to” road allowances
when re‐establishing
lost corners

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NOMINAL WIDTH: TRUE AND UNALTERABLE

 Why is a “higher status” attributed to dimensions and

monuments controlling the boundaries of public highways?

 Surveys Act

s. 54 Every line, boundary and corner established by survey

and shown on a plan of subdivision is a true and unalterable
line, boundary or corner, as the case may be, with respect to
such plan and shall be deemed to be defined by the original
posts or blazed trees in the first survey thereof, whether or
not the actual measurements between the original posts are
the same as shown on the plan of subdivision or expressed in
any grant or other instrument.
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CONCLUSIONS

 Public highway boundaries are both of fixed statutory width

and “true and unalterable”

 Roads are likely to become increasingly complex in their

configuration – expanded uses, different types of vehicles

 Passage over a “way” may need to be understood from

different points of view with boundaries scrutinized
accordingly

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