COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., BORINS AND FELDMAN JJ.A.
BETWEEN:
THE COOK’S ROAD MAINTENANCE ASSOCIATION on behalf of itself and all other owners of lands in Lots 9 and 10, Concession 1, Township of Marmora, County of Hastings, and Lots 8 and 9, Concession 1, Township of Belmont, County of Peterborough, obtaining access to their properties on the north shore of Crowe Lake by way of a road known as Cook’s Road
William E. Baker for the Appellant
Plaintiff (Respondent)
- and -
CROWHILL ESTATES AND THE ATTORNEY-GENERAL OF ONTARIO
Robert J. Reynolds for the Respondent
Defendant (Appellant)
HEARD: August 14 and 15, 2000
On appeal from the judgment of Mr. Justice A. de Lotbinière Panet dated April 19, 1999.
1The issue in this appeal is whether a portion of a road, known as Cook’s Road (the “road” or “Cook’s Road”), which passes over a large parcel of land owned by the appellant, had been dedicated as a public road or highway by a predecessor in title to the appellant. The appellant is the owner of a trailer camp. The respondent Association (“the cottagers”) asserted that Cook’s Road is a public road because a previous owner of the appellant’s land, Laughlin Hughes (“Mr. Hughes, Sr.”), had dedicated the road to the public about 40 years ago. The road is the only vehicular access which the cottagers have to their seasonal homes.
2Following a trial, Panet J. declared the road to be a public road. It is my opinion that the trial judge came to the wrong conclusion. As I will explain, the evidence was clear that Mr. Hughes, Sr. did not dedicate the road to the public. To the contrary, he gave his permission to the cottagers to use the road for the purpose of obtaining access to their cottages. Given that this evidence resolved the status of the road, it was unnecessary for the trial judge to decide whether the evidence of the use of the road supported the inference that Mr. Hughes, Sr. had dedicated it to the public. However, as I will explain, this evidence fell far short of supporting such an inference.
BACKGROUND
3This litigation is the latest chapter in a dispute between adjoining landowners regarding the status of that part of Cook’s Road which passes over a large parcel of land owned by the appellant, Crowhill Estates, which operates a trailer park on its land. The members of the respondent, The Cook’s Road Maintenance Association (the “Association”), who are referred to in these proceedings as “the cottagers”, own seasonal residences in a subdivision to the west of the appellant’s land and for almost four decades have used Cook’s Road as the only means of obtaining access to their residences. Although Cook’s Road merges with a municipally maintained public road known as Big Island Road to the east of the appellant’s land, it terminates at the western boundary of the subdivision in which the seasonal residences are situated. Thus, Cook’s Road leads only to the cottagers’ subdivision where it becomes a dead end road.
4The disputed portion of Cook’s Road was owned by Laughlin Hughes from 1933 until his death in 1964, and by his son James Hughes (“Mr. Hughes, Jr.”), from 1964, until he sold it in 1975 as part of the larger parcel of land, to Robert Starr. In 1975, the entire parcel of land was transferred by Mr. Starr to Crowhill Estates Limited, which transferred it in 1977 to the appellant, which is owned by Mr. Starr. For many years the province of Ontario took the position that the appellant’s land which Mr. Hughes, Sr. had acquired in 1933, was Crown land and that Cook’s Road was a public road. However, the province abandoned this position in 1978.
5In 1958, Harry Cook purchased the property to the west of the appellant’s land with a view to developing a cottage subdivision. In about 1958 or 1959 Mr. Cook entered into an arrangement with Mr. Hughes, Sr. which permitted him to improve and maintain Cook’s Road for the purpose of providing suitable vehicular access to the cottages which he intended to build. This arrangement continued in various forms from that time until Mr. Starr purchased the land from Mr. Hughes, Jr. in 1975. Throughout the intervening years, the 60 or so cottage owners maintained the road over which Mr. Hughes, Sr. and Mr. Hughes, Jr. permitted them to have uninterrupted and unimpeded access to their seasonal homes, as did their visitors and trades people. The municipality in which the disputed portion of Cook’s Road is situated has never taken any responsibility for its maintenance. Since at least 1970 to the present, the parcel of land on which the road is situated has been assessed for municipal tax purposes, and its owner, from time to time, has paid the municipal taxes that were levied on it.
6However, the situation changed after Mr. Starr, and his successors in title, acquired the land. In about 1979 or 1980 the appellant began to obstruct and interfere with the cottagers’ access to their residences over Cook’s Road. This resulted in an action commenced on October 30, 1980 by the respondent’s predecessor Association seeking, inter alia, a declaration that Cook’s Road was an access road within the meaning of the then recently enacted Road Access Act, S.O. 1978, c. 16 (now R.S.O. 1990, c. R. 34) and an injunction restraining the present appellant, Mr. Starr and Crowhill Estates Limited from impeding or interfering with the cottagers’ access over Cook’s Road to reach their cottages.
7The parties settled this action, resulting in a settlement agreement that was signed on January 29, 1982 by the appellant and the 81 cottagers who were members of the Association at that time. Subsequently, the agreement was assigned to the present Association. By the terms of the agreement, the parties agreed that the disputed portion of Cook’s Road was an access road as defined in s. 1(a) of the Act, assigned responsibilities for the repair, upkeep and maintenance of the road and made provisions for its closure only as permitted by the Act. In addition, it was agreed that a sign be posted at the road’s “main gate” in the following form:
NOT A PUBLIC ROAD
This road is for motor vehicular access to Lots 8, 9, 10, 11 and 12, Concession 1, Marmora Township, and Lots 8 and 9, Concession 1, Belmont Township, by the owners or occupants thereof or their invitees, and is not for Public usage.
We were advised by counsel that the sign was posted in 1982 and, at the time the appeal was argued, continued to be posted.
8It appears that the 1982 agreement did not resolve the situation between the appellant and the cottagers who, in 1991, commenced the proceedings that have resulted in this appeal, even though the action did not come to trial until March 8, 1999. In this action the cottagers claimed multiple relief. However, for the purposes of this appeal it is necessary to refer only to their claim for a declaration that Cook’s Road is a public road, or in the alternative, a declaration enforcing the terms of the argeement of January 29, 1982. It was expressly pleaded by the cottagers that if the road was not declared to be a public road, then it was an access road within the meaning of the Road Access Act in respect to which the appellant had “no right to obstruct access . . . to the properties” of the cottagers. In so pleading, the cottagers repeated the claim that they had asserted in their 1980 action.
9A case management conference conducted on June 16, 1998 by Byers J. resulted in an order defining the primary issue for trial to be: “Whether the road is a public road.” In addition, Byers J.’s order provided:
- If it is found that the road is not a public road, then the parties agree that an injunction should issue enforcing the 1982 Agreement pleaded by the parties, binding on the Plaintiff class and the Defendant.
REASONS OF THE TRIAL JUDGE
10The trial judge recognized correctly that before there could be a declaration that Cook’s Road was a public road, it was necessary that he find: first, that an owner of the land on which the road is situated had formed the intention to dedicate the land to the public as a public road, or highway; second, that the intention was carried out by the road being thrown open to the public; and, third, that the road was accepted by the public. He also recognized that where there was no direct evidence of dedication by an owner of the land, continuous use of the road over a long period of time by members of the public could lead to an inference of the dedication of the road as a public road.
11The trial judge reviewed a considerable body of evidence concerning the use of the road dating back to 1940. However, the primary evidence on which he relied related to the use of the road and its maintenance from the time Mr. Cook acquired the land for his subdivision in 1958 or 1959 until Mr. Hughes, Jr. sold the parcel of land on which the road is situated to Mr. Starr in 1975. He referred to evidence indicating that the road was considered by many people to be a public road on the basis of the position taken by the province of Ontario, which it withdrew in 1978, that it was situated on Crown land. He made the following findings of fact:
“. . . that by 1978 there was an intention to dedicate the roadway to the public as a public road.”
“. . . that by 1978 there has been an acceptance by the public of the dedication of the subject road as a public road.”
No finding was made respecting who formed the intention to dedicate the road to the public, when the intention was formed, or when it was carried out. These omissions are reflected in the formal judgment of the court by which it was declared that “the road running over the lands of the defendant had become a public road by the year 1978”.
12I interrupt my review of the reasons of the trial judge to observe that his failure, or inability, to find when and by whom the road had been dedicated is troubling. Although, as pointed out in Vol. 21, Halsb., 1981, at p. 53, where there is satisfactory use of a road by the public, its dedication to the public may be inferred even though there is no evidence to show who was the owner of the road at the time of the alleged dedication, the position taken by the cottagers should have enabled the trial judge to make an express finding as to when the road had been dedicated, and by whom. It was the cottagers’ position that Mr. Hughes, Sr. had dedicated the road to the public consequent to the agreement he had reached with Mr. Cook in 1958 or 1959 and that the subsequent use of the road by the public supported the finding that Mr. Hughes, Sr. had dedicated the road to the public at, or about, that time. Considering the position of the cottagers together with the findings of the trial judge which are reviewed below, it is my view that the only reasonable interpretation of the trial judge’s finding that “by 1978 there was an intention to dedicate the roadway to the public as a public road” is that it was Mr. Hughes, Sr. who intended to dedicate the road to the public in about 1958 or 1959, subsequent to which the road had been accepted as a public road by members of the public. Indeed, as only Mr. Hughes, Sr. and his son owned the road between 1933 and 1975, no person other than Mr. Hughes, Sr. or his son could have dedicated it.
13Moreover, the position of the cottagers defines the evidence that is relevant to whether Mr. Hughes, Sr. had dedicated the road for the use of the public. As the starting point necessarily must be 1958 or 1959 when the cottagers say that Mr. Hughes, Sr. decided to dedicate the road as a public road, it follows that any evidence of the use of the road before that time is irrelevant to Mr. Hughes, Sr.’s intention and cannot be used to infer an intention to dedicate the road to the public after that time. Similarly, the province’s position, which it abandoned in 1978, that the road was Crown land has limited relevance to the formation of an intention by Mr. Hughes, Sr. to dedicate his land to the public in 1958 or 1959. If it was, at that time, apparently public land, although owned by him, not only would there not be any purpose in dedicating it to the public, he would not have had the capacity to do so. Moreover, the evidence demonstrated that for many years, until the province changed its position in 1978, Mr. Hughes, Sr. had been engaged in a dispute with the province in which he insisted that he was the owner of the land over which the road passes, and that the land was not Crown land.
14With these observations in mind, I turn to the evidence which the trial judge took into consideration in respect to whether the public had accepted Mr. Hughes, Sr.’s alleged dedication of the road as a public road. There is no doubt evidence that prior to 1960 the road had been used as a wagon trail by people who were hunting, cutting wood, fishing and hiking and, it would seem, that Mr. Hughes, Sr. made no effort to stop them from using it. However, the evidence was that subsequent to that time, as a result of what the cottagers say was Mr. Hughes, Sr.’s dedication of the road, that the nature and extent of the road’s use changed, as did its improvement and maintenance.
15With respect to the use made of the road from about 1960 to 1979, the trial judge made a number of findings, the first of which was as follows:
Until 1979, there was no interference in the use of Cook’s Road by anyone and people and vehicles passed freely on this road. The users of the Cook’s Road during this period included the owners of the cottage properties, prospective property owners, the guests of the cottagers, truckers and other equipment contractors involved in the construction of these cottages and the delivery of construction material, the normal commercial suppliers to these cottages, together with hunters, fishermen and skidooers and that all of these passed freely and without obstruction or restriction over the Cook’s Road. The evidence of the plaintiff’s witnesses is that the subject road was generally considered to be a public road over Crown land. [Emphasis added.]
16Subsequently, the trial judge made a similar finding:
I conclude that the subject road was open and used as a wagon trail by the public in the 1940’s, and with increasing use became open and passable by automobile by the late 1950’s. After Mr. Cook began developing cottage properties, the subject road together with the balance of the Cook’s Road was improved by way of grading and gravelling in the 1960’s and from that time to 1978. Mr. Cook sold lots and cottages were built on the Cook property and by 1978 most of the cottage lots on the Cook land had been built. Throughout this period, there was an increasing use of the subject road by cottagers, their guests, contractors involved in building of the cottages, suppliers of materials for the building of the cottages, prospective purchasers of the lots, sightseers and hunters and fishermen and all of these in increasing frequency throughout these years. I find that until 1979, the public had free, unrestricted and uninterrupted access of the subject road while passing through to the area closer to Crowe Lake and that there were no signs which indicated any restriction and limitation to the free and open use of the subject road. I also conclude from the evidence that there was a general impression that this was a public road running over Crown land. During this period, the province of Ontario took the position that this was Crown land and that the subject road was a public road running over this land. [Emphasis added.]
17After finding that there had been “a very significant increase” in the use of the road in the 19 years following the permission that Mr. Hughes, Sr. had given to Mr. Cook “to the development and improvement” of the road and its use by the cottagers, the trial judge concluded:
The next question is to determine whether there has been sufficient acceptance by the public to constitute a public road. On the evidence before me, I find that the road was used by the public openly, continuously and without interruption by members of the public. I find on the evidence that the subject road was used openly and as of right. The road was used not only by owners of cottages, but contractors, suppliers, prospective purchasers and sightseers. In addition, there is evidence of the use of the road as early as the 1940’s. I conclude therefore that by 1978 there has been an acceptance by the public of the dedication the subject road as a public road. [Emphasis added.]
18The trial judge noted that it was common ground that the road had not been accepted by the municipality in which it was situated as a public highway or a public road. As well, although the trial judge made reference to the action commenced in 1980 by the respondent’s predecessor and to the terms of the agreement of January 29, 1982, by which that action had been settled, he gave no effect to the terms of the agreement in his finding that Cook’s Road was a public road. In particular, he apparently did not consider it to be relevant to the issue before him that the parties had agreed that it was an access road within the meaning of the Road Access Act and that they had agreed to the posting of a sign at the entrance to the road reading: “Not a public road”, which sign remained in place at the time of the trial.
ANALYSIS
19In my view, the trial judge’s declaration of Cook’s Road as a public road is neither sustainable by the legal principles that apply to the dedication of public highways, nor by the evidence.
20Based on the respondent’s position at trial, Panet J. was required to decide whether Mr. Hughes, Sr. had formed, and carried out, an intention to dedicate the road to the members of the public for their use as a public road. This was an issue that could be decided by direct evidence, or by circumstantial evidence of use of the road by the public capable of supporting the inference that Mr. Hughes, Sr. had dedicated the road as a public road and that it was accepted as such by the public. As I will explain, not only does the evidence fail to support the finding that Mr. Hughes, Sr. had dedicated the road as a public road, the evidence supports the opposite finding that he had made the road available for the private use of the cottagers to enable them to gain access to their cottages in exchange for Mr. Cook’s undertaking to improve and maintain the road. Moreover, the evidence does not support the trial judge’s finding that the road was used by the public during the relevant time period.
21As I will explain, the trial judge appears to have misapprehended the evidence as well as the appellant’s position. Although the appellant’s position was that Mr. Hughes, Sr. had dedicated the road as a public road when he entered into an agreement in about 1958 or 1959 with Mr. Cook to permit the cottagers to use the road for gaining access to their cottages in exchange for Mr. Cook developing and maintaining the road, this agreement is inconsistent with an intention to dedicate the road as a public road. The undisputed evidence, supported by the use that was made of the road after 1958 or 1959, was that the owner of the road had merely given permission to the cottagers to use his road to obtain access to their cottages. In reality, the road was, and continues to be, a private driveway for the use of the cottagers, over which a minimal amount of public use might have been tolerated. This is borne out by the trial judge’s finding that between 1960 and 1979 the dominant use of the road was by the cottagers, their trades people and their guests. Thus, the dominant use of the road was precisely what Mr. Hughes, Sr. intended when he reached his agreement with Mr. Cook.
22The legal principles that apply to the creation of a public highway by dedication are of ancient origin and are comprehensively set out in Halsb., supra, at p. 46 et seq. The basic principles are found at pp. 47-48:
Doctrine of dedication and acceptance. A road or other way becomes a highway by reason of the dedication of the right of passage to the public by the owner of the soil and of an acceptance, that is, user, of the right by the public. “Dedication” means that the owner of the soil has either said in so many words, or so conducted himself as to lead the public to infer that he meant to say, that he was willing that the public should have this right of passage. From the moment that a dedicated way has been accepted there is a right of passage by the public.
Intention to dedicate. Dedication necessarily presupposes an intention to dedicate. The intention may be expressed in words or in writing, but is more often a matter of inference.
Acceptance by the public. Both dedication by the owner and user by the public must occur to create a highway otherwise than by statute. User by the public is a sufficient acceptance; it is not necessary that the way should be adopted as repairable or maintainable at the public expense.
23As pointed by Meredith J.A. in Macoomb v. Town of Welland (1907), 13 O.L.R. 335 at 345 (C.A.), the question is whether the owner of the property has made a gift of it to the public for the purpose of a highway. As Meredith J.A. stated at p. 345:
That question is one purely of fact. Nearly all the cases of this character, which come before the Courts, have to be determined upon circumstantial evidence only; no direct evidence is available. The owners who were supposed to have dedicated were sometimes unknown, and often long since dead. In such cases it is not difficult to infer, from the mere fact of the existence of the way, the exercise of the right of public passage over it, for such a length of time and in such a manner that it must have been with the knowledge of the owner, that its existence was actually based upon a dedication by him; unless there is outweighing evidence to the contrary.
24In Bailey v. The City of Victoria (1920), 1920 CanLII 367 (SCC), 60 S.C.R. 38 at 53 Duff J. described the conditions to be satisfied to establish the existence of a public highway through dedication by the owner of private property:
For this purpose two concurrent conditions must be satisfied, 1st, there must be on the part of the owner the actual intention to dedicate, (Folkstone v. Brockman), and 2nd, it must appear that the intention was carried out by the way being thrown open to the public and that the way has been accepted by the public (Attorney General v. Biphosphated Guano Co.).
25In considering the same issue in Baldwin v. O’Brien (1917), 40 O.L.R. 24 at 60 (C.A.) Rose J. noted:
. . . In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is clearly settled that there must be an intention to dedicate; there must be an animus dedicandi, of which the user by the public is evidence, and no more; and a single act of interruption by the owner is of much more weight, upon a question of intention, than many acts of enjoyment:” Poole v. Huskinson, 11 M. & W. 827; Mann v. Brodie, 10 App. Cas. 378, at p. 386. [Emphasis in original.]
“In most of these cases dedication . . . is proved by user. But user is but the evidence to prove dedication: it is not user, but dedication, which constitutes the highway; therefore, what always has to be investigated is whether the owner of the soil did or did not dedicate certain land to the use of the public: Attorney-General v. Esher Linoleum Co. Limited, [1901] 2 Ch. 647, 650. [Emphasis added.]
26In a more recent case, Reed v. Town of Lincoln (1974), 6. O. R. (2d) 391, this court considered the principles governing the dedication of privately owned property as a public highway. Addy J. had found that neither a farmer, nor her predecessors in title, had dedicated the only access to the farm and a summer camp as a public highway: 1973 CanLII 731 (ON SC), [1973] 3 O.R. 969 (Ont. High Ct.). In my view, there are features of the Reed case which have application to the circumstances of this appeal.
27Writing on behalf of this court, at p. 395 Martin J.A. commenced his analysis by observing that whether a road has been dedicated by a previous owner as a public highway is a question of fact, and by referring to the same conditions to be satisfied to establish the creation of a public highway by dedication as stated by Duff J. in Bailey, supra. He pointed out that as there was no direct evidence of dedication by a previous owner of the land the position taken by the Town of Lincoln was that dedication should be inferred, inter alia, from the user by the public of the road in dispute.
28In a passage which has particular application to the circumstances of this appeal, Martin J.A. continued at p. 396:
The defendant was required to prove an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as a public highway. No inference of dedication, of course, arises from the use of the road in dispute by persons travelling to and from the camp, since such user is pursuant to the exercise of the camp’s right to the use of the private road which the owners of the Reed farm were obliged to afford them. The evidence establishes that virtually the only vehicular traffic on the road in dispute is of this character. Evidence of the use of the road by the public is merely evidence from which the intent to dedicate may be inferred (per Lord Kinnear in Folkestone Corp. v. Brockman, at p. 352). Such an intention ought not to be too readily inferred from the use by members of the public of a road traversing private property in a rural community, especially in a locality where the normal system of roads did not develop. In these circumstances the owner of the property may well, in a neighbourly spirit, permit local residents to use a way across it for their convenience without having any intention of dedicating the road as a public highway. The inference of neighbourly tolerance is the more likely when dedication is sought to be established at a period when the area is in a relatively early stage of its development: see Dunlop v. Township of York (1869), 16 Gr. 216 at pp. 222-3; Macoomb et al v. Town of Welland (1906), 13 O.L.R. 335 at p. 340; Taylor v. Clanwilliam, 1924 CanLII 475 (MB CA), [1924] 4 D.L.R. 218, [1924] 2 W.W.R. 1153, 34 Man. R. 319.
The evidence with respect to the nature of the user of the road in dispute was conflicting but, considered as a whole, was consistent with the use of the road by local residents for their convenience, by neighbours and friends and by hunters and sightseers, with the tacit permission of the owners: see Bateman and Bateman v. Pottruff, [1955] O.W.N. 329 at pp. 332-3. [Emphasis added.]
29Martin J.A. added that a municipality’s acceptance of a road as a public road, the expenditure of money for its maintenance and its exemption from assessment are factors from which the dedication of the road as a public road may be inferred. He went on to say at p. 399:
The lands now claimed by the defendant as a public highway were not entered on the assessment roll as exempt and taxes continued to be collected with respect to them. The assessment of the lands and the collection of taxes with respect to them is inconsistent with the contention of the defendant that it had accepted the road in dispute as a public highway. [Emphasis added.]
30At p. 402 Martin J.A. concluded:
The defendant in the instant case was required to assume the burden of proving that a predecessor in title of the registered owner had divested himself of his property rights by carrying out an intention to dedicate the road in dispute to the public use. The existence of such an intention on the part of a predecessor in title of the plaintiff, in the circumstances detailed in the evidence, involved an unlikelihood and the learned trial Judge did not err in holding that cogent or substantial evidence was required to overcome the unlikelihood of the existence of such an intention on the part of a previous owner. [Emphasis added.]
31In my view, the trial judge’s declaration of Cook’s Road as a public road is neither sustainable by the evidence, nor by the legal principles that he purported to apply. As Rose J. stated in Baldwin, supra, at p. 60, the central question in a case like this is always whether the owner did or did not dedicate the land to the use of the public. The cottagers were required to assume the burden of proving that Mr. Hughes, Sr., a predecessor in title of the appellant, had divested himself of his property rights by dedicating, or making a gift of, the road to the public. As pointed out in Reed, supra at p. 402, cogent or substantial evidence was required to overcome the unlikelihood of an intention on the part of Mr. Hughes, Sr. to divest himself of his property rights. In my view, such evidence was absent.
32Had the trial judge not misapprehended the evidence, the proper conclusion on the evidence that he should have reached was that Cook’s Road had not become a public road by dedication. In my view, the only reasonable conclusion arising from the agreement reached by Mr. Cook and Mr. Hughes, Sr. in 1958 or 1959 was that it was Mr. Hughes, Sr.’s intention to retain ownership of the road and to permit the cottagers to use it to gain access to their cottages in exchange for Mr. Cook’s agreement to develop and maintain the road. Thus, on the evidence, the clear intention of Mr. Hughes, Sr. was not to make a gift of his land to the public, but, to the contrary, to permit the owners of cottages in Mr. Cook’s subdivision to use the road as the only means available to them to obtain vehicular access to their cottages. In short, the evidence was that Mr. Hughes, Sr. had given the cottagers permission to use the road. Indeed, this intention finds support in the trial judge’s finding that subsequent to 1960 the dominant use of the road was made by the cottagers, their trades people and their guests, with insignificant use made by hunters and fishermen, and in his additional finding that Mr. Cook and, after his death, the cottagers maintained and repaired the road. Moreover, I note that the authorities indicate a landowner’s permission given to specific individuals to use a road does not justify an inference of dedication of the road to the public: Halsb., supra, at p. 55.
33To use the words of Martin J.A. in Reed, supra, at p. 396, what took place in 1958 or 1959 and the years that followed was an exercise of “neighbourly tolerance” by Mr. Hughes, Sr. in permitting the cottagers to use his private road to obtain access to their homes.
34Although this conclusion is sufficient to set aside the result reached by the trial judge, in my view, there are additional reasons for doing so.
35Even if the agreement between Mr. Cook and Mr. Hughes, Sr. is considered as capable of giving rise to an inference that Mr. Hughes, Sr. intended to dedicate the road as a public road, the trial judge erred in applying the evidence of the cottagers’ use of the road in support of such inference. The trial judge was of the view that use of the road by the cottagers, their trades people and their guests – which constituted its dominant use – constituted use of the road by members of the public. As pointed out in Reed, supra, at p. 396, the trial judge was not entitled to equate use of the road by the cottagers, who had received Mr. Hughes, Sr.’s permission to use it, with use of it by the public. The use of the road by members of the public which may be relied on to support an inference that the road had been dedicated as a public road must be independent of its use by members of the user class seeking a declaration that it had been dedicated for public use. On the evidence, the cottagers and their trades people and their guests are not members of the public for the purpose of raising an inference of dedication.
36Moreover, dedication ought not to be inferred if the user, as in this case, can be explained on other grounds. As explained by Romer J. in Stoney v. Eastborne RDC (1926), 90 J.P. 57 at 58, a presumption of dedication based on use of a road is only to be resorted to in order to explain use of the road that is not otherwise capable of reasonable explanation. Although an appeal was allowed in Stoney: [1927] 1 Ch. 367 (C.A.), no appeal was taken from this portion of Romer J.’s judgment. I have previously referred to the explanation for the cottagers’ use of the road. Where, as in this appeal, the circumstances indicate that the cottagers’ use of the road was expressly permissive, this contradicts an intention to dedicate the road for public use.
37In addition, there was abundant evidence that Mr. Hughes, Sr. did not dedicate Cook’s Road as a public road:
- The municipality in which the road is situated did not accept it as a public road.
- The municipality has never maintained or repaired the road.
- The road has never been removed from the assessment rolls.
- Title to the road has remained in the name of the respondent and its predecessors in title, who have always paid municipal taxes levied on it.
- Mr. Hughes, Sr. consistently took the position that the road was his private property, and not Crown land, throughout his lengthy dispute with the province of Ontario.
- In the 1982 settlement of the 1980 action the respondent’s predecessor and the appellant agreed that the road is an access road within the meaning of the Road Access Act.
- The parties further agreed in 1982 to post a sign that states that the road is “not a public road”, that it is “not for public usage” and that it is for motor vehicular use by the cottagers or their invitees.
38This evidence is inconsistent with the respondent’s contention that Mr. Hughes, Sr. had dedicated the road as a public road. Not only is the evidence inconsistent with an intention to dedicate the road to the public, it confirms the use and maintenance of the road by the cottagers consequent to the agreement reached by Mr. Cook and Mr. Hughes, Sr.
39As I have pointed out, the position taken by the respondent cottagers’ association in respect to the road in this action is inconsistent with the position taken by its predecessor association in its 1980 action. Not only was that action based on the position that the road is an access road within the meaning of the Road Access Act, the 1982 settlement agreement between the predecessor association and the appellant confirmed that the road is an access road and not a public road, and that the cottagers enjoyed access over the road under the provisions of the Act. To accept that the road was a private road in 1982 is not only inconsistent the position taken in the present action, commenced nine years later, that the road is a public road, but is contrary to the terms of the contract arising from the settlement into which the respondent’s predecessor entered with the appellant in 1982, and which was assigned to, and is binding upon, the respondent cottagers. Moreover, in the 1980 action it was open to the cottagers to assert, in the alternative, that the road is a public road, but they failed to do so.
40Although I would allow the appeal, it must be recognized that the cottagers are not without a remedy. Their remedy is to be found in the Road Access Act and the terms of the 1982 settlement agreement. As pointed out in paragraph 4 of his order of June 16, 1998, the case management judge, Byers J., said that if it was found by the trial judge that the road was not a public road, the parties were in agreement that an injunction was to issue to enforce the 1982 agreement.
41The previous action was commenced less than two years after the November 24, 1978 proclamation of the Road Access Act. The legislature intended the Act to relieve against the precise situation which the cottagers were encountering in 1980 as a result of the appellant’s attempts to impede their use of the road. When the government introduced the legislation on June 1, 1978, the Minister responsible for it stated in Hansard at p. 3015:
Hon. Mr. McKeough: Later today I will be pleased to introduce the Road Access Act for first reading. It is modelled on a private member’s bill introduced last fall by my colleague, the hon. member for Parry Sound (Mr. Maeck), who sought to prevent the arbitrary closing of private roads, especially in cottage country where owners or tenants are totally dependent on these roads for access to their property.
42“Access road” is defined as follows in s. 1(a) of the Act:
“access road” means a road located on land not owned by a municipality and not dedicated and accepted as, or otherwise deemed at law to be, a public highway, that serves as a motor vehicle access route to one or more parcels of land;
Section 2(1) prevents the construction or the placing of a barrier or other obstacle over an access road that prevents all road access to one or more parcels of land, except in the circumstances stipulated in the Act.
43In Deluca v. Paul Guiho Trucking and Construction Ltd. (1984), 1984 CanLII 2188 (ON CA), 46 O.R. (2d) 634 at 639, Thorson J.A., on behalf of this court, described the purpose of the Act in this way:
Rather, it seems to me, the main or principal purpose of the Act is to avoid the problems, including the very real risks of violence to persons and property, which are so often encountered in disputes involving these kinds of roads, by making it an offence in the first place, punishable by a substantial fine, for any person to obstruct an access road in circumstances where to do so would have the result of preventing access to other lands by those for whom the road serves as a motor vehicle access route.
See, also, Whitmell v. Ritchie (1994), 1994 CanLII 858 (ON CA), 20 O.R. (3d) 424 (C.A.).
44No doubt when the cottagers commenced their action in 1980 they did so in the realization that the Road Access Act provided the solution to their problems. They were, of course, correct. In signing the 1982 settlement agreement, the appellant must have recognized the application of the Act to Cook’s Road and the cottagers statutory right to use the road to obtain access to their cottages. Nothing has changed since 1982. The Act continues to be in force, and the 1982 settlement agreement remains in effect.
CONCLUSION
45Although it is difficult to feel any sympathy for the appellant given the problems it has caused the cottagers for more than two decades, it is necessary to be mindful of the fact that Cook’s Road is situated on private land. It is privately owned by the appellant. To declare a private road to be a public road will extinguish the property rights of its owner. It is a very serious step, therefore, for a court to declare an individual’s private property to be public property. Property rights are to be respected. No doubt this underlies the admonition of Martin J.A. in Reed, supra, at p. 402, that before the court can find that private property rights have been extinguished by dedication cogent or substantial evidence is required. The Road Access Act, with which the appellant must comply, does not affect its property rights, but subjects its property rights to the cottagers use of the road to gain access to their homes.
46To summarize, this was not a case in which the question of dedication fell to be proved on circumstantial evidence arising from the use of Cook’s Road by members of the public. There was direct evidence that Mr. Hughes, Sr. agreed to permit the cottagers owning seasonal homes in Mr. Cook’s subdivision to use his private road to obtain access to their homes in exchange for Mr. Cook’s undertaking to develop, repair and maintain the road. That the dominant use of the road in the years subsequent to this agreement was by the cottagers, their trades people and their guests, and that the road was maintained and kept in repair by Mr. Cook until his death and, thereafter, by the cottagers, provides strong confirmation of the terms of the agreement. Moreover, the substantial weight of the other evidence which I have reviewed, as well as the cottagers’ 1980 action and the terms of the 1982 agreement by which it was settled, is contrary to any intention by Mr. Hughes, Sr. to divest himself of his property and to dedicate it to the public. As the direct evidence was contrary to the dedication of the road as public road, there was no need for the trial judge to consider whether evidence of the use of the road by the public led to an inference of its dedication. In any event, as I have explained, the only evidence of use which the trial judge could properly consider indicated that at the relevant time there was minimal use of the road by members of the public.
47The trial judge’s decision did not depend on his assessment of the credibility of the witnesses or the weight given to the evidence, but on his apprehension of the evidence. In such circumstances, where the trial judge has misapprehended and misapplied the evidence, this court is entitled to interfere and substitute the decision that he ought to have made: Courts of Justice Act, R.S.O. 1990, c.C.43, s. 134(1)(a); Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (C.A.); Stein v. The Ship “Kathy K” (1975), 1975 CanLII 146 (SCC), 62 D.L.R. (3d) 1 (S.C.C.).
48I would, therefore, allow the appeal, set aside the judgment of Panet J. and order that the action be dismissed. Pursuant to the order of Byers J., the case should be remitted to the trial judge for the purpose of issuing the injunction enforcing the agreement of January 29, 1982 which the parties have agreed should issue in the event that the court should find that Cook’s Road is not a public road. In the circumstances, there will be no costs of the trial or the appeal.
RELEASED: February 7, 2001
(signed) “S. Borins J.A.”
(signed) “I agree R. R. McMurtry C.J.O.”
(signed) “I agree K. Feldman J.A.”
