Parkinson (Trustee of)

2001BCSC0902 Citation: Kirkpatrick et al. v. The Public Trustee, Estate of William Parkinson, deceased et al. Date: 20010621 2001 BCSC 902 Docket: A973073 Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN:

GARY JOSEPH KIRKPATRICK

JANET DIANE KIRKPATRICK

PLAINTIFFS AND:

THE PUBLIC TRUSTEE IN HIS CAPACITY AS THE ADMINISTRATOR OF THE ESTATE OF WILLIAM PARKINSON, DECEASED RODNEY DANIEL DICK, KENNETH JACQUES, ACTING

REGISTRAR OF LAND TITLES FOR THE NEW WESTMINSTER LAND REGISTRATION DISTRICT, ATTORNEY GENERAL FOR BRITISH COLUMBIA, AS REPRESENTATIVE OF THE LAND TITLE ASSURANCE FUND,

WESTMINSTER SAVINGS CREDIT UNION AND

VANCOUVER CITY SAVINGS CREDIT UNION

DEFENDANTS

REASONS FOR JUDGMENT

OF THE HONOURABLE MR. JUSTICE E.R.A. EDWARDS Counsel for the Plaintiff C.F. Willms K.G. O'Callaghan Counsel for the Defendant Westminster Savings Credit Union M. L. Tweedy and D.L. Long Counsel for the Defendants Kenneth Jacques, Acting Registrar Of Titles for the New Westminster Land Registration District, and the Attorney General for British Columbia J.S. Devilliers, Q.C. Counsel for the Defendant Rodney Daniel Dick In person Date and Place of Hearing: June 7, 2001 Vancouver, BC [1] The plaintiffs apply for an order or declaration that: (a) The area described in Reference Plan LMP26965 as Parcel "A" of the S.W. 1/4 Section 16 Township 12 of the New Westminster District is a public road; or (b) Alternatively, that the Land is a highway to the Highway Act, R.S.B.C. 1996, c. 188; and [2] Mr. Dick is the registered owner of Parcel A, which is 66 feet by approximately 2000 feet. It is that part of the shaded area on the plan below between Cottonwood Drive and Gilker Hill Road, which is the road represented by two lines intersecting the shaded area at an angle, below the lot marked "Rem 19", which is the plaintiffs' lot. The whole of the shaded area is described as "Parcel of Land in State of Title Certificate 126810, January 28th, 1992, Title No. 26819F, Folio 247" I refer to it hereafter as "Parcel 26819F". [3] Westminster Savings Credit Union ["Westminster Savings"] is the

holder of a mortgage registered against Parcel A. A petition for foreclosure was filed November 27, 2000. About $180,000 is owing by Mr. Dick. [4] The plaintiffs are owners in joint tenancy of the lot marked "Rem 19" which adjoins Parcel A. Counsel for the plaintiffs advised that they were prompted to bring this application because if Parcel A is not a public road or highway the plaintiffs may be precluded from subdividing their lot. There is no evidence of this and the assertion is disputed by counsel for Westminster Savings. The plaintiffs' lot abuts a public road, that part of Parcel 26819F marked "112 Avenue", to the west of Parcel A. [5] Counsel for the Registrar advised that the underlying action includes a claim by the plaintiffs for compensation from the Land Title Act assurance fund. Background [6] Mr. Dick acquired Parcel A from the Public Trustee for $115,000 in January 1997. [7] The Public Trustee held title to Parcel A for the estate of the original grantee of the S.W. 1/4 of Section 16, Township 12, New Westminster District, William Parkinson. Mr. Parkinson paid $5 for the Crown grant of that quarter section in 1884. He died without heirs or a will in 1916. [8] The Public Trustee, on behalf of Mr. Parkinson's estate, became registered owner in fee simple of Parcel 26819F which included Parcel A, after November 25, 1991 when the Registrar reinstated the Certificate

of Absolute Title to this part of the original Crown grant on behalf of Mr. Parkinson. [9] The municipality of Maple Ridge purchased Parcel 26819F, apart from Parcel A, from the Public Trustee. The parts of Parcel 26819F acquired by Maple Ridge had been paved and used as public roads, that is part of 232 Street and parts of 112 Avenue to the east and west of Parcel A, before Maple Ridge bought them. [10] The plaintiffs allege, as a basis for their claim for damages, that the Registrar was negligent in reinstating the Certificate of Absolute Title. Their position, as I understand it, is that notwithstanding the registration of the original Crown grant in 1884, Mr. Parkinson never had title to Parcel 26891F (or Parcel A) because it was excepted from the Crown Grant. Therefore, according to the plaintiffs, the registrar was negligent in 1991 when he reinstated Mr. Parkinson's title to Parcel 26819F. [11] There is no evidence before the court about what caused the Registrar to reinstate the title. [12] The issue as to whether Parcel A was excepted as a public road from the original Crown grant arises from the form of the original Crown grant. When filed at the Land Registry, it had annexed a plan on which the area granted was coloured in red. The Crown grant provides as follows: VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of

the Faith, and so forth. To all to whom these presents shall come, Greeting: KNOW YE, that WE do by these presents, for US, Our heirs and Successors, in consideration of the sum of Five Dollars, to US paid, give and grant unto William Parkinson his heirs and assigns, All that Parcel or Lot of Land situate in New Westminster District, said to contain One hundred and sixty acres, more or less, and more particularly described on the map or plan hereunto annexed and coloured red, and numbered South West quarter of Section Sixteen (16) Township Twelve (12) on the Official Plan or Survey of the said New Westminster District in the Province of British Columbia, to have and to hold the said Parcel or Lot of Land, and all and singular the premises hereby granted, with their appurtenances, unto the said William Parkinson his heirs and assigns for ever. PROVIDED, NEVERTHELESS, that it shall at all times be lawful for US, Our heirs and Successors, or for any person or persons acting in that behalf by Our or their authority, to resume any part of the said lands which it may be deemed necessary to resume for making roads, canals, bridges, towing-paths, or other works of public utility or convenience; so nevertheless that the land so to be resumed, shall not exceed one-twentieth part of the whole of the lands aforesaid, and that no such resumption shall be made of any lands on which any

buildings may have been erected, or which may be in use as gardens or otherwise for the more convenient occupation of any such buildings. [13] The plan annexed to this Crown grant shows Section 16 as a square delineated by four solid lines. Inside the solid lines which delineate the south and west boundaries there are dashed lines parallel to the solid lines. The red colouring in the S.W. quarter section extends to the solid lines not just to the dashed lines. [14] The surveyor's handwritten notes of the original township survey in 1877 disclose "This Township has a road allowance of one chain the post being set on (indecipherable) the South and West". [15] Evidence leads me to infer the general layout of Township 12 was of 36 sections with one chain (66 foot) wide road allowances inside their south and west boundaries. Together all these allowances would produce an uninterrupted grid of road allowances. [16] Because Mr. Parkinson's grant was the southwest quarter section, a road allowance along its south and west boundaries would conform to the general layout of the Township 12 survey. [17] Mr. Fenning, a British Columbia Land Surveyor engaged by the plaintiffs, examined plans annexed to the Crown grants for the S.E. and N.W. quarter sections of Section 16. He deposed that on those plans the areas between the dashed lines and solid line section boundaries which are projections

of those on the plan of the S.W. quarter section are coloured brown and the rest of the area of each of those quarter sections is coloured red. [18] Mr. Fenning's affidavit does not disclose if these two Crown grants were contemporaneous with the Crown grant to Mr. Parkinson. Nor does it disclose whether each granted "160 acres, more or less", as that to Mr. Parkinson did. Nor does it disclose whether the road allowances were expressly exempted by the language of those grants, apart from reference to what was coloured red on the plans annexed to each. [19] The plaintiffs' counsel argued that the dashed lines on the plan attached to the Crown grant to Mr. Parkinson represent the road allowance and that consistent with the layout of Township 12, the area between the dashed and solid lines was excepted from the Crown grant and should not have been coloured red on the plan as it was. [20] In short, the plaintiffs allege whoever prepared the plan mistakenly coloured red outside the dashed lines and notwithstanding registration of the Crown grant in 1884, title to a one chain wide road allowance along the south and west boundaries of the S.W. quarter section of Section 16 delineated by the dashed lines, but nevertheless coloured red, did not pass to Mr. Parkinson. [21] The argument that the S.W. quarter section on the plan attached to the Crown grant to Mr. Parkinson was mistakenly

all coloured red is further supported by the fact that the road allowances on the plans annexed to the Crown grants for the contiguous N.W. and S.E. quarter sections were not coloured red but brown. Road allowances were thereby excepted from the Crown grants for those quarter sections. [22] If the Crown grant to Mr. Parkinson did not except the road allowance, there is a gap in the grid of road allowances around Section 16 creating four dead end road allowances. Was Parcel A created a public road by exception from the original Crown grant? [23] Counsel for the Registrar and Attorney General and counsel for Westminster Savings argued that even if the plan attached to the Crown grant to Mr. Parkinson was mistakenly all coloured red, the Crown grant nevertheless conveyed the whole quarter section to Mr. Parkinson without excepting the area outside the dashed lines as a road allowance. [24] I have concluded that argument is correct, notwithstanding the evidence of later subdivisions of the S.W. quarter section, which indicates that Mr. Parkinson and his successors, as well as Land Registrars and municipal authorities from time to time, operated as though a road allowance on the south and west boundaries had been excepted from the Crown grant to Mr. Parkinson. I have reached that conclusion for the following reasons. [25] If there was an error made, it was in the wording of the Crown grant and/or the colouring of the plan annexed to it. The Crown grant was made in the name of the Lieutenant Governor and apparently signed by the Deputy Provincial Secretary. The person applying to register the Crown grant, presumably Mr. Parkinson, was obliged to "deposit a map thereof properly authenticated" under s.64 of the Land Registry Act 33 Vict, No.

143. There is no evidence the Registrar in 1884 had anything to do with preparing the Crown grant or plan annexed to it. [26] There is no discrepancy between the language of the Crown grant and the plan annexed to it. The grant states it is for 160 acres "more or less", that is a full quarter section, forty by forty chains. If there were a road allowance one chain wide excepted from the grant as depicted by the dashed lines, the area granted would be 152.1 acres. That is, 160 acres less two strips on the south and west boundaries measuring one by forty chains totalling eighty square chains, minus one overlapping square chain where the two strips intersect, or 79 square chains which is 7.9 acres. [27] The evidence of Mr. Fenning was that there were several methods for laying out townships into sections around the time Township 12 was surveyed in 1877. The one he says was adopted for Township 12 was to survey road allowances within the south and west boundaries of each section. That means that in each section the only quarter section with a full 160 acres available for a Crown grant would be the N.E. quarter section. A one chain wide road allowance reduces the size of the area available for Crown grant, excepting the road allowance, in the N.W. and S.E. quarter sections by forty square chains or four acres, to 156 acres. [28] No evidence was provided to the court as to whether

the Crown grants for the N.W. and S.E. quarter sections were, like that for the S.W. quarter section, expressed as "160 acres, more or less" notwithstanding the fact that the portion coloured red on the plans attached to those grants extends only to the dashed line and therefore represents only 156 acres. [29] In short, no evidence was provided to the court as to whether quarter section Crown grants in Township 12 were all expressed as "160 acres, more or less" notwithstanding the fact that if Mr. Fenning is right about the layout of the Township 12 survey only N.E. quarter sections would be a full 160 acres, N.W. and S.E. quarter sections would accommodate only 156 acre grants and the S.W. quarter sections, only 152.1 acre grants. [30] It may be all quarter section Crown grants in Township 12 were expressed as "160 acres, more or less". That would imply that the words "more or less" were intended to comprehend exemptions for road allowances of four or 7.9 acres in all but the N.E. quarter sections. [31] If that were so, there would be no need for the Registrar in 1884 to ensure the annexed plan conformed to the wording of the grant. The language of all quarter section grants would be the same regardless of how the annexed plans were coloured. There was no evidence provided to the court that this was the case. I infer it was probably not the case for the following reasons. [32]

The words "One Hundred and Sixty" appear to have been filled in by hand on the pre-printed form of the original Crown grant to Mr. Parkinson before the printed word "acres". [33] Mr. Stanley Wade, a British Columbia Land Surveyor with 17 years experience in the Maple ridge area, engaged by Westminster Savings, deposed that in his experience "if a Crown grant contained (sic) a road allowance, the grant would not be for one hundred and sixty acres, but for something less than that, say for example 148 acres." Mr. Wade does not explain the survey layout pertaining to this example. [34] The parcel granted is further referred to as that "more particularly described on the map or plan hereto annexed and coloured in red and numbered south West Quarter of Section 16 of Township 12 on the Official Plan or Survey." [35] I find it noteworthy the parcel is referred to as "numbered" South West Quarter of Section 16 on the Official Plan, that is identified by number and not simply referred to as the S.W. quarter section of Section 16. Had the Crown grant been for the S.W quarter section rather than for the parcel numbered "South West Quarter of Section 16", there might be an inference that the parcel was verbally described as a quarter section, meaning a full 160 acres, as well as being "160 acres, more or less". [36] The reference to the S.W. quarter section as "numbered" in a specific way

on the Official Plan suggests resort to the plan annexed to the Crown Grant was necessary to determine precisely how the parcel granted was configured and how big it was. It wasn't necessarily a full quarter section, in light of the reference to "160 acres, more or less". It was only numbered as a specific quarter section on the official plan. [37] If the wording of all quarter section Crown grants in Township 12 conformed to the red colouring on annexed plans, that is, specifically granted 160 acres or 156 or 152.1 acres as appropriate where red colouring ended at dashed lines delineating road allowances, then assuming the Registrar in 1884 addressed his mind to the road allowance layout for Township 12, he would have recognized the Crown grant to Mr. Parkinson as an apparent anomaly, a 160 acre S.W. quarter section when all other S.W. quarter sections were 152.1 acres. [38] Assuming the Registrar in 1884 did recognize this as an apparent anomaly, he would presumably have compared the wording of the Crown grant ("160 acres, more or less") to the red colouring on the plan and found that the two were consistent, before registering the Crown grant. [39] The Registrar may not have recognized this as an anomaly. There is no evidence from which I can infer the Registrar knew or ought to have known what road allowance layout, if any, had been surveyed in Township 12. [40] From Mr.

Fenning's affidavit of June 27, 2000, paragraph 12, I find Township 12 was one of only four out of at least 42 townships in this part of the Railway Belt surveyed with one chain wide road allowances inside the south and west section boundaries. There is nothing on the plan annexed to the Crown grant for the S.W. quarter section which potentially discloses Township 12 is one of the four, except the dashed lines. [41] The words "road" or "road allowance" do not appear on the plan annexed to the Crown grant. Nor do they appear in the wording of the Crown grant in relation to a one chain wide exception to the grant along the south and west boundaries. The meaning of the dashed lines is not explained on the plan by words or a colour like brown, or in the words of the Crown grant. [42] The fact this Crown grant includes a right to resume up to 20% of the parcel granted for road purposes, a common feature of such grants, makes it indistinguishable from one for a quarter section in a township surveyed without any road allowances. [43] As Mr. Fenning comments about Township 12, "This layout resembles that of a Township which has a one chain road reserve between the Sections but not forming part of the Sections". By "forming part" I take him to mean "encroaching on" or "within not between" the 640 acre Sections. [44] Viewed from the perspective of the Registrar presented with the

application to register the Crown grant in 1884, it was just as likely the dashed lines were mistakenly drawn on the annexed plan as it was the red colouring was mistaken. Indeed, in light of the fact the colouring conformed to the description of the parcel as "160 acres, more or less" and the absence of any explanation on the face of the documents presented for registration as to the significance of the dashed lines, the Registrar might have viewed it as more likely the dashed lines were drawn in error. [45] In any event, even assuming the Registrar regarded the documents as disclosing an anomalous or suspicious grant of a full 160 acre S.W. quarter section, he could potentially have done two things, register or refuse to register. [46] The Registrar decided to register in 1884. There is no evidence he was negligent in doing so. The Registrar did not prepare the Crown grant or the plan annexed to it. There was nothing on the face of those documents which necessarily disclosed any mistake. There is no evidence the Registrar knew, ought to have known or was statutorily obliged to concern himself with the layout of road allowances for Township 12 or to satisfy himself the Crown grant was in conformity with that layout. [47] The plaintiffs' counsel referred to sections 13 and 57 of the Land Act RSBC 1996 c.

245. Section 13 provides: 13(1) In a disposition of Crown land under this or a former Act in which a portion of the land is designated as a road in the instrument evidencing the disposition or in a map or plan attached to it, unless there is express provision in the instrument to the contrary, the road is deemed to be, (a) in the case of a disposition made before January 3, 1997, 20.1168 m in width, being 10.0584 m on each side of the centre line of the travelled portion of the road, and (b) in the case of a disposition made after January 2, 1977, 20 m in width, being 10 m on each side of the centre line of the travelled portion of the road. (2) No part of the road referred to in subsection (1) passes to any person under the instrument. [48] Section 57 provides: 57 If Crown land is disposed of by Crown grant and the map or plan attached to the grant shows a road coloured, outlined or designated in a colour other than red, no part of the road passes to the grantee, and, unless there is express provision in the grant to the contrary, the road is deemed to be, for a grant issued (a) before January 3, 1977, 20.1168 m in width, and (b) after January 2, 1977, 20 m in width. [49] I find s. 57 does not assist the plaintiffs for four reasons. [50] First, on the plan annexed to the Crown grant the "road" which the plaintiffs allege was excepted by reference to the dashed lines on the

plan is not "coloured other than red", it was coloured red. [51] Second, although the alleged "road" was "outlined or designated" in a colour other than red, that is black, there is no basis for inferring black ink was intended to distinguish the area outside the dashed line as excepted from the Crown grant because black ink was used for all lines on the plan and so has no particular significance. This is particularly so where brown was used to colour the road allowance exceptions on the two contiguous quarter sections. [52] Third, as already noted, there is no use of the word "road" on the plan or in the language of the Crown grant in reference to an exception from the Crown grant. [53] Fourth, the area coloured red includes the whole 160 acres of the quarter section in conformity to the language of the Crown grant. [54] For these same reasons, s.13 of the Land Act does not assist the plaintiffs. No land is expressly "designated as a road" either in the "instrument" or "in a map or plan attached to it". [55] Plaintiffs' counsel referred to three cases for the proposition that "if an error is made in the colouration of the Crown grant that error may be corrected". [56] In Rotter v. Canadian Exploration Ltd., [1961] 33 W.W.R. 337, the Supreme Court of Canada held that the presumption or rule of construction that a grant bounded by water extends ad medium filum aquae prevails

over a registered plan which outlines in red a parcel boundary delineated by stakes at the "top of the river bank -- the line of perennial vegetation", where the parcel is "said to be bounded ... by a river". [57] The precise language of the original Crown grant considered in Rotter is not set out in the judgment of the Supreme Court of Canada. It is described by Locke J at p.338 as including no reservation "of the beds of any rivers or streams". This is the equivalent in this case of the Crown grant to Mr. Parkinson including no express language excepting road allowances. [58] No case cited by counsel suggested that evidence of the layout of road allowances for Township 12 as apparently intended by the initial surveyor is equivalent to the ad medium filum aquae presumption. The "natural" boundary of a quarter section, which is somewhat analogous to the presumed ad medium filum aquae boundary of a parcel bounded by a river, is the section boundary, not a line one chain inside it, where no express reservation is made in the language of the original Crown grant for a road allowance. [59] HMTQ and AGBC v. Perry Ridge Water Users Association el al 2000 BCSC 940 at paragraph 41 states the proposition that "where there is conflict between the description of land in the registry or elsewhere and what was intended to the (sic) conveyed or taken "on the ground" the situation on the

ground prevails", citing MacDonald v. Knudsen (1928), 40 B.C.R. (C.A.) 25 at 34-35. [60] In the MacDonald case the description of the parcel in the registered instrument did not correspond to the area surveyed on the ground because the survey was misplaced by 33 feet. Here, assuming a road allowance was correctly surveyed "on the ground" at the time of the original Crown grant, there is no evidence the Crown was statutorily or otherwise mandated to except it from the Crown grant. [61] The evidence the Crown intended to except the road allowance is set out at paragraphs 14-22 above. I have already found it is inconclusive. The Crown grant to Mr. Parkinson conveyed a 160 acre parcel located and described precisely and correctly in the Crown grant which was consistent with the plan annexed to it and consistent with the survey lines "on the ground" which delineated the 160 acres of a quarter section. In other words, the parcel described in the Crown grant was the size and in the location it was represented to be. Accordingly, the MacDonald and Perry cases have no application. [62] In British Columbia v. Hilyn Holdings Ltd. (1989) 64 D.L.R. (4th) 95 (B.C.S.C.) affirmed in part (1991), 78 D.L.R.(4th) 27 (B.C.C.A.), a survey plan of a township prepared in 1889 and filed in the Nelson land title office included what was described as a "proposed road" coloured in brown which contained

2.73 acres. The original Crown grant was for 19 36/100 acres, "more or less" "coloured in pink" on the annexed plan. That plan was the same as the filed one on which the proposed road was coloured brown. Without the 2.73 acres of the proposed road the area granted was 16.6 acres. [63] The court, relying in part on s. 54 of the Land Act R.S.B.C. 1979, c. 214, which is the predecessor of s. 57 referred to in paragraph 48 above, found that proposed road was not conveyed by the original Crown grant. [64] The court also referred to Re Land Registry Act (1913), 13 D.L.R.

790. The facts of that case are unfortunately unclear from the terse report. However, it applied Re W.C. Ward and the Victoria Water Works, (1874) 1 B.C.R. 114. [65] In Ward the court decided that a Crown grant of "that parcel said to contain 329 acres, more or less, and numbered sections 49, 50, 63 and 64 on the official plan" included the 24 1/4 acre area of Beaver Lake, wholly contained in section 49, since it was not expressly excluded by the language of the Crown grant. [66] The judgment in Ward does not explain how a grant of four sections, normally 2560 acres, was only 329 acres. Nevertheless, the court found the area of the lake was conveyed by the Crown grant notwithstanding the fact that 329 acres was the size of the parcel without the 24 1/4 acres of Beaver Lake. [67] Hilyn is authority that a part of a parcel coloured other than red is not conveyed, even if its area is apparently included in the acreage description of the parcel in the Crown grant. [68] Ward is authority that submerged land apparently excluded from the acreage description of the parcel in a Crown grant is nevertheless conveyed if it is within the boundaries of the official plan of a section included in the description and not otherwise expressly excluded by the language of the Crown grant or colouration of an annexed plan. [69] Neither the Hilyn nor the Ward case assists the plaintiffs in this case,

since both are clearly distinguishable on their facts. Here the acreage description and the part of the plan coloured red correspond exactly. [70] Nothing on the face of the Crown grant but the dashed lines could imply an intention to exempt a road allowance. The dashed lines are less persuasive than the outline of the lake in Ward because the area they delineate is not reflected in the acreage description of the parcel in the Crown grant. [71] I conclude that the original Crown grant to Mr. Parkinson transferred the fee simple to the entire 160 acres of the S.W. quarter section of Section 16 to him without exception for any road allowance and that it was validly registered in 1884. I find no road was created by exception from the Crown grant to Mr. Parkinson. Was Parcel A created a public road by dedication? [72] The plaintiffs' counsel argued in the alternative that if Parcel A was not a road by virtue of exemption from the Crown grant it had subsequently become a road in one of three ways: by dedication by deposit of a plan, by common law dedication, public use and acceptance or by virtue of s. 4 of the Highway Act. [73] Counsel for the Registrar and Attorney General advised the court his clients supported the plaintiffs' application for a declaration there was a road on Parcel A, either by reason of common law dedication or pursuant to the Highway Act. Counsel for these

parties did not accept that such a declaration implied that title to the road vested in the Crown, as counsel for Westminster Savings contended. [74] Counsel for the plaintiffs did not press the argument there had been a dedication by deposit of a plan. However, he argued that deposit of subdivision plans 1017 and 1556A in 1911, both signed by Mr. Parkinson and plans 22259E and 2996 in 1917, both signed by the Official Administrator of his estate, even if they did not constitute dedication, were evidence of Mr. Parkinson's (or his representative's) intention that the road be dedicated. [75] Plan 1556A shows a "road" on part of the Parcel A. The rest of Parcel A is not depicted on that plan. Plan 2996 shows a "road" on the whole of the Parcel A [76] An alternate explanation for the depiction of roads on these plans is that the surveyors who prepared these plans did so not on instructions to effect a dedication, but in a manner consistent with what they understood was the layout of Township 12, unaware that the Crown grant to Mr. Parkinson had not excepted the surveyed road allowances. [77] If that is so, neither Mr. Parkinson nor the administrator of his estate addressed his mind to the question of dedicating the road, because the plans they signed depicted road allowances the surveyors and they mistakenly understood were already in place. [78] On the whole of the evidence

before the court I find this explanation is the proper inference to be drawn, that is, that neither Mr. Parkinson nor his estate administrator manifested an intention to dedicate roads by signing these subdivision plans. [79] In Maple Ridge (District) v. New Westminster Registrar of Land Titles (1994), 86 B.C.L.R. (2d) 359 (C.A.) at paragraph 17, the Court of Appeal summarized the requirements for establishment of a highway at common law as follows: The manner in which land may become a highway at common law is explained in Cubitt v. Maxse (Lady Caroline) (1873), L.R. 8 C.P. 704; Tottenham Urban District Council v. Rowley, [1912] 2 Ch. 633 (C.A.): and Bailey v. Victoria (above). The requirements for establishment of a highway at common law are a "dedication" by the owner, which may be by word, deed or course of conduct, followed by "acceptance" by the public, which occurs when public use is made of the land so dedicated. In some of the reported cases dedication by the owner has been inferred from the fact of free public use of the land as a road over a substantial period of time with the owner's knowledge, from which acquiesence can be inferred. Where there has been express dedication, however, there is nothing in the cases to suggest that lengthy public use is necessary in order to constitute "acceptance", and thereby to establish the dedicated land as a public highway. That

happens as soon as there is any clear use by the public of the dedicated right of way. [80] For the reasons in paragraphs 77 and 78, I find there is no evidence from which an express dedication by Mr. Parkinson or his estate administrator can be inferred. For a "word, deed or course of conduct" to effect a dedication, the word, deed or course of conduct must be the action of a person acting with an understanding of the significance of that word, deed or course of conduct, not the action of a person with a mistaken understanding of the true state of title. [81] There is evidence of public use of the area included in Parcel 26819F as reinstated in 1991. Indeed the whole north-south portion and parts of the east-west portion were paved and used as public thoroughfares maintained by the municipality for an extended period before the municipality acquired title to them by purchase from the Public Trustee in 1997. [82] There is also evidence of some public use of Parcel A, which the municipality did not acquire. [83] The fact of free public use of the land as a road over a substantial period of time cannot however lead to an inference of dedication by the owner in this case, for the same reason dedication cannot be inferred from word, deed or course of conduct. [84] That is, the public use cannot have been with the owner's knowledge. While Mr. Parkinson or his estate administrator

may have known of the public use, they did not acquiesce with knowledge that the public was using Mr. Parkinson's land. They mistakenly believed the land had been excepted from the original Crown grant as a public road. So their acquiescence was not an informed one, from which an inference of dedication may be made. [85] I find that none of the area in the Parcel 26819F and therefore none of Parcel A became a public road by dedication. Is Parcel A a public highway under s.4(1) of the Highway Act? [86] Section 4(1) of the Highway Act states: 4(1) If public money has been spent on a travelled road that has not before then been established by notice in the Gazette or otherwise dedicated to public use by a plan deposited in the land title office for the district in which the road is located, that travelled road is deemed to be and is declared to be a public highway. [87] In order to find that Parcel A is a public highway under s. 4(1) the court must be satisfied that "public money has been spent on [Parcel A as] a travelled road". [88] I infer from the facts that Parcel A was not paved and not acquired by the municipality that it has not been used as a public road in the same way as the rest of Parcel 26819F. [89] The reason for that is disclosed in paragraph 4 of Mr. Dick's affidavit sworn March 30, 2001: This property has never been used as a road or highway during the time that

I have owned it. The middle part of the property is low lying and is flooded with water throughout the year. The western and eastern parts of the property are very steep with grades up to 33%. Attached to and marked Exhibit "B" to this my affidavit is a true copy of a portion of a topographical map prepared for the District of Maple Ridge on Sept. 12, 2000. The subject property is highlighted in yellow. [90] Counsel for the plaintiffs argued that since parts of Parcel 26819F, had been used as a travelled road and had public money expended on them before Parcel A was subdivided, Parcel A thereby became a public highway. In his written submission in reply to Westminster Savings, however, counsel acknowledged this argument was valid only if the court accepted that Parcel 26819F became a road by dedication. [91] Since I have found Parcel 26819F did not become a road by dedication, I must to consider whether the evidence demonstrates that Parcel A, not Parcel 26819F, was a travelled road on which public money was expended and is therefore a public highway. [92] That evidence is in the form of affidavits from persons, including the plaintiffs, who own or resided on property near Parcel A. The relevant parts of that evidence which are reliably referable to Parcel A and not other parts of Parcel 26819F is as follows. [93] Mr. Otto Hafeli's deposed that he "many times personally saw our

friends and neighbours using this road allowance when horse back riding and hiking" and that in 1953 or 1954 a logging contractor used part of Parcel A for access to log his parents' property which then adjoined Parcel A. [94] Mr. Richard and Mrs. Mabel Russell, who were the plaintiffs' predecessors in title, deposed that in 1989 a crew of municipal workers did some surveying and clearing along the "full southern boundary" of their property. They also deposed that at the time municipal employees told them this was a road allowance. [95] The plaintiff Mr. Kirkpatrick, deposed that in 1993 to 1995 he drove a truck on Parcel A "the length of our property without difficulty" several times, that contractors he hired used Parcel A to access part of his property in 1994 and that he had seen boys on Parcel A west of his property "a few times" between 1993 and 1995. [96] Mr. David Motick deposed certain hearsay he heard between 1945 and 1947 from a now deceased Mr. Mattson about cattle being driven "along the 112th Avenue road allowance". I give this evidence no weight. [97] This evidence does not persuade me that Parcel A has ever been used as a "travelled road" or that any significant sum of public money has been spent on Parcel A for purposes of improving or maintaining it as a travelled road. [98] In Whistler Service Park Ltd. v. Normway Industries Ltd. [1990] the Court of Appeal

considered s. 4 of the Highway Act. [99] Craig JA (Taylor JA concurring) stated at p.6: I agree with the view of Macdonald, J. that it is sufficient that the owner permit a road on his land to be "travelled", and permit significant expenditures of public funds to be made on it in order that s.4(1) apply. [100] Locke JA, in separate concurring reasons, stated at p. 7: As the statute was apparently not intended to codify the common law but to provide another method of creating a highway, the legislators have taken two of the most obvious indicia of intention to dedicate and acceptance - travel and expenditure of public money and stated that proof of these alone would establish a highway. In my opinion, however, not only to be in harmony with the common law, but because the three subsections of s.4(2) demand it, it could never have been intended that proof of only casual expenditure or passage would be sufficient. In each case the burden of proof in Dunstan must be met, and the evidence must be of so substantial a nature and demonstrate such circumstances as to remove any suspicion that an expropriation without compensation is taking place. [101] The evidence establishes no more than "casual expenditure or passage" in this case, if it establishes that. More importantly, there can be no inference in this case that the owner of what later became Parcel A ever permitted travel or

significant public expenditures on Parcel A or indeed Title 26819F for the same reasons expressed in paragraphs 77 and 78 above on the issue of dedication. [102] Accordingly, I find Parcel A is not a public highway pursuant to s.4(1) of the Highway Act. [103] The plaintiffs' application is dismissed with costs on Scale 3 to Westminster Savings and Mr. Dick. I make no award of costs for or against the Registrar or the Attorney General. "E.R.A. Edwards, J." The Honourable Mr. Justice E.R.A. Edwards