2021 ONSC 3215
COURT FILE NO.: CV-19-00000061-0000
DATE: April 29, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRIAN FORRESTER
Applicant
Mark A. Fendley, Counsel for the Applicant
- and -
TOWNSHIP OF DRUMMOND/NORTH ELMSLEY
Respondent
Roberto Ghignone, Counsel for the Respondent Township of Drummond/North Elmsley
-and-
PEDER JENSEN KROGH and MAIDA ELIZABETH MURRAY
Respondents
James D. Wilson, Counsel for the Respondents Peder Jensen Krough and Maida Elizabeth Murray
HEARD: October 27, 2020
REASONS FOR DECISION
JAMES, J.
[1] This Application seeks a declaration that the passage and registration of by-law 108 enacted in 1890 by the then Corporation of the Township of Drummond, now the Township of Drummond/North Elmsley, established a road that ought to be open to the public.
[2] The Applicant owns a parcel of land composed of Part of Lot 2, Concession 10, Township of Drummond, now in the Township of Drummond/North Elmsley (the “Township”). This parcel is bisected by the Mississippi River. A portion of the Applicant’s land lies on the north side of the river and is effectively landlocked, with water access only.
[3] The Respondents Peder Krogh and Maida Murray own a large parcel on the north side of the river, consisting of Part of Lots 1, 2 and 3, Concession 11 in the same Township. The road which the Applicant says was established by by-law 108, traverses the Krogh/Murray lands. These Respondents oppose the Application.
[4] The Respondent Township also opposes the Application on several grounds and so its interests are aligned with the interests of the co-Respondents.
[5] For the reasons that follow, I have determined that the Application should be dismissed.
The Township Minutes 1883-1899
[6] In February 1883, John Christie and Thomas Murphy petitioned the Township for a new road to be opened across Lots 2 and 3 in the 11th Concession.
[7] Council responded by appointing James Shaw and George Cunningham to investigate the cost of establishing the proposed new road, including the preparation of a proper survey. This survey was subsequently referred to as the Morris survey of 1883.
[8] At the meeting of Council on August 28, 1883 John Morris, P.L.S. submitted a report and sketch of the new “McIlquham Road”. I find that the reference to the McIlquham Road refers to the same road that council had requested Messrs. Christie and Murphy to investigate. This road is also sometimes referred to as the “McCalmond road”. References to both roads are often tied to the Morris survey which figures prominently in the municipal records for this part of the Township. I find that it is unlikely that there was more than one road planned to traverse the area in question although it is clear that there were several other roads in other areas of the Township.
[9] Between 1883 and 1888 the Township endeavoured to acquire the land necessary to construct the road and purchased parcels from some private owners. It appears that the Township was unable to agree with Mr. McIlquham on a price for a portion of the McIlquham property.
[10] At the meeting on December 15, 1888 Council received a report “on the proposed new road across Lots 1, 2 and 3 in the 11th Concession” that indicated that Mr. McIlquham was in favour of building the road according to the Morris survey but the parties owning the land required for the road had not all agreed yet as to the right of way. Note the inclusion of Lot 1 in the discussion which was not referred in the 1883 petition.
[11] At the meeting on May 28, 1889 Council received a report that “they had examined the 11th line opposite the McIlquham land and found it would be impossible to make a road in the line as there is now more than 10 feet of water in some places”.
[12] At the same meeting, Thomas Murphy and Alex McCalmond advised Council that if the new McIlquham road was established across Lots 1, 2 and 3, they would give the right of way free across their land and would pay half the cost of the right of way across Mr. McIlquham’s farm.
[13] Also at the May 28, 1889 meeting, Council appointed David McLaren to examine the bridge constructed by Alex McCalmond on the “new road across Mr. McIlquham’s land” and prepare a report.
[14] At the meeting of September 24, 1889 council appointed an arbitrator to arbitrate on the right of way for a road access across Mr. McIlquham’s land in lieu of the area set out in the Morris survey.
[15] By December, 1889 a right of way over the McIlquham land was finalized and a notice was published of a proposed by-law with respect to the creation of a new road.
[16] At the meeting on February 18, 1890 Council passed by-law 108 “authorizing the opening of a line of road across Lots Number one, two and three in the 11th concession of Drummond”. The by-law contained a metes and bounds description that concluded with the words “as surveyed and laid out by John Morris, P.L.S. and dated July 24, 1883.” This by-law was registered in the County of Lanark land registry office on March 11, 1890.
[17] At the meeting on April 8, 1890 Council authorized a payment of $25 to Mr. McCalmond “for making a new bridge on the new McIlquham road” and $50 to Mr. McLaren for repairing “McIlquham’s bridge”.
[18] At the meeting on August 18, 1890 Council approved the granting of an assignment to Alexander McCalmond of the claim of the Township for $12.50 against James Monahan for his share of the expense of opening up the forced road across Lots 1, 2 and 3 in the 11th Concession.
[19] At the meeting on November 11, 1890 council appointed David McLaren and James Shaw to examine the “11th concession line from Lot no. 3 to the town line between Drummond and Bathurst with a view to opening up the said road for public travel and also to consider the advisability of making a new bridge across the Mississippi River at that point” and to make a report to council.
[20] At the meeting on December 15,1890 Messrs. McLaren and Shaw reported to Council that they had “examined the 11th line from Lot 3 to the point where it crosses the river and it is in fair shape except for a soft piece near Mr. McCalmond’s and as to building a bridge across the river they think it would be too expensive at the present as it would require a bridge at least 240 feet in length and would have to be maintained and kept in repair by Drummond council.”
[21] From 1890 until 1899 the evidentiary record respecting the road in question is sparse.
[22] The Council Minutes of May 30, 1899 record that the Township had retained E.J. Wilkie P.L.S. to locate the McCalmond road on the Morris survey but he was unable to do so.
[23] A review of the Township Minutes from this period discloses numerous requests by landowners for accommodations and contributions in relation to various road improvements throughout the Township. Road maintenance and development was clearly a large part of the everyday business of Council. Notable by its absence is the lack of evidence of expenditures to develop the McIlquham road.
[24] Also clear is that a portion of this part of the Township was low-lying marshland. One proposal called for a drainage scheme to open 20,000 acres of wetland for agricultural uses.
Mr. Wilkie’s Investigation
[25] Mr. Wilkie wrote to Council on May 16, 1899. He advised that he had met with the Reeve and Clerk of the Township at the site of the “McAlmond road” across the front of lots 2 and 3 in the 11th Concession. Again, I find that it is more likely than not that this is a reference to the road which is the subject of this Application, sometimes referred to as the McIlquham road.
[26] Mr. Wilkie was unable to re-establish Morris’s line for the road. A portion of Mr. Wilkie’s letter is indecipherable but suggests that he attempted unsuccessfully to align the Morris plan with an existing bridge. He said that J.H. Moore O.L.S. had staked a road leading to the bridge and recommended that instead of attempting to establish the Morris line across a low-lying area, it would be preferable to adopt Moore’s line. He noted that in order to do so, it would be necessary to acquire a piece of property from John Tullis to connect from the “11th Concession line allowance” to the “stone road”, which I take to be a reference to an existing road.
Township Minutes After the Passing of By-Law 108
[27] At the meeting on January 8, 1900 Council decided to retain the services of a surveyor to lay out the McCalmond road from the angle at the old mill to Monahan’s lot where it connects with the 11th line by following the Morris survey as near as possible, to purchase a strip of land from John Tullis if necessary to connect with the bridge and to have all obstructions removed off the said road so that it will be free for public travel. I find that this note is a follow up to the discussion at Council about the need for some surveying from May of the previous year.
[28] At the meeting on February 10, 1900 Mr. Wilkie presented a “very neat plan of the new McCalmond Road” for Council to consider.
[29] At the meeting on June 26, 1900 Thomas Murphy complained to Council that Alex McCalmond had placed a fence across the new McIlquham road and had ploughed and planted where the road had been. Mr. Murphy said that he was determined to take action against the Council if they do not keep the road open for public travel. Sometime later, the date is unclear, Mr. McCalmond appeared before Council in response to the complaint and said that he was certain that the road did not follow the Morris survey.
[30] Council Minutes in the ensuing years occasionally refer the “McCalmond road”, sometimes in the context of a dispute regarding the road or for permission to fence off portions of it.
[31] In the Minutes of the meeting on February 2, 1909 the Reeve reported to Council that he had made a site visit to the section of road where various ratepayers had requested that John Tullis be allowed to fence the 11th Concession “at the marsh” and put a gate at the Stone road. At the same meeting, Mrs. McIlquham objected to the proposed fencing. The Reeve recommended that council “move slow in the matter and leave it over for further consideration”.
The Investigation by the Current Clerk Administrator, Cindy Halcrow
[32] No copies of the Morris survey from 1883 can be found in the Township records or the land registry office.
[33] Ms. Halcrow was able to locate four deeds that referenced what appears to be the road in question, all dated in 1889 and 1890. She was not able to establish whether the Township acquired all the land necessary to construct the road.
[34] Other than a copy of by-law 108 and the Township Minutes from the period from 1880 to 1909, the Township records do not disclose evidence of the existence of the road. There is no reference to the road in current zoning and assessment maps. It is not included in the Township’s roads classification by-law, by-law 2002-77.
[35] The Township records do not disclose whether public money was spent maintaining the road.
Position of the Applicant
[36] The Applicant says that the passing and registration of by-law 108 which describes with certainty the boundaries of the road was sufficient to create a valid “highway” that continues to the present time, irrespective of its state of repair.
[37] The road has not formally been closed. The maxim, “Once a highway, always a highway” applies.
[38] Evidence from G.A. Smith, O.L.S. suggests that the location of the road can be established.
[39] There is visual evidence of a historical road in the area.
[40] No facts have been adduced to suggest that the road was subject to a claim of adverse possession.
[41] The Township has an obligation to maintain the road.
[42] The public has an unfettered right of passage along the route of the road.
Position of the Respondents, Krogh and Murray
[43] These Respondents state that there is no evidence of a road having previously existed on their property and that considering the alleged road would traverse approximately 1100 meters of their property, one would expect some evidence of the road to be visible.
[44] The land registry documentation for their property does not refer to a road.
[45] Some of the area where the road is supposed to have existed is now either under water or environmentally sensitive wetlands.
[46] An aerial photograph of the area taken in 1926 does not provide evidence of a road.
[47] In the circumstances of this case, the mere passage of by-law 108 was not effective in establishing a public highway.
Position of the Respondent Township
[48] The Township contends that the highway described in by-law 108 was never built.
[49] The Township never acquired all the land necessary to build the highway.
[50] There is no modern record of the existence of the road.
[51] The land in question is now regulated by the Mississippi Valley Conservation Authority and environmental and hydrologic impact studies would need to be prepared to assess the environmental consequences of developing a road through the area.
Discussion and Analysis
[52] The Council Minutes suggest to me that in the 1880s and 1890s there was considerable community interest in developing a road across Lots 1, 2 and 3 in the 11th Concession. A survey for the proposed road was prepared and land was acquired by the Township to build the road in question. There is evidence to support the view that at least some portions of roadway were opened for public passage. I am prepared to assume for the purposes of this Application that at least some portions of the road in question were constructed and that public passage occurred.
[53] There is also evidence that portions of the road did not follow the original survey and this caused friction at times between landowners as to where the road was supposed to be. There is a reference in the municipal record to a forced road in the area which I understand to be a publicly travelled road that deviates from the planned route, sometimes onto private property, due to an obstacle. The presence of a forced portion of road or deviations from the Morris survey may explain why some local farmers had disagreements about the road. Certainly, there is ample evidence that some sections of the proposed road were wet and marshy which would complicate road construction.
[54] The case of Meaford (Municipality) v. Grist, 2013 ONCA 124 involved a by‑law from 1854 that was “discovered” in 2004. The by-law purported to establish a public road along a stretch of lakeshore on Georgian Bay. The by-law contained a metes and bounds description. It was not registered. The municipality brought an action against the present-day owners of the land for a declaration that the land in question constituted a public highway and that the Respondent owners were trespassers. The court concluded that the mere passage of the by-law was inadequate to establish a road and that certainty of description of the location of the road was a necessity.
[55] In my view, this Application must fail due to a lack of certainty regarding the location of the road.
[56] Also, there is no modern record that the road ever existed as contemplated by by-law 108.
[57] It is not clear that all the necessary land was acquired by the Township.
[58] The survey purporting to lay out the road has been lost so there is no reliable record of where the road was supposed to be. No reliable visual record of what once may have been a publicly travelled road exists. Photographs from selected locations presented on behalf of the Applicant are ambiguous. An aerial photograph from 1926 does not provide evidence of a road.
[59] In addition, there are contemporaneous records that indicate the original Morris survey was problematic. The Morris survey bearings were reported to be inaccurate. The survey was already seven years old when the by-law was passed. Mr. Wilkie recommended abandoning part of the Morris survey in favour of a survey by Mr. Moore. There were disagreements among landowners whether the road was faithful to the original plan and what alterations were appropriate.
[60] Although there is good reason to doubt that the road followed the Morris survey, assuming that it did, the Applicant has not established through expert evidence that the original metes and bounds description can still be identified and plotted.
[61] The Applicant has not demonstrated that there is sufficient evidence to permit the preparation of a modern legal description or plan of survey. In this regard I note that the affidavit of Wendy Moncrieff, a law clerk in the employ of the solicitor for the applicant, includes information from Tony Smith, a provincial land surveyor. Attaching hearsay evidence to an affidavit prepared by a law firm employee, presumably to protect the source of the information from cross-examination, has very little, if any, probative value and I attach no weigh to this evidence.
Disposition
[62] The Application is dismissed.
[63] If the parties are unable to agree on the issue of costs, the Respondents may deliver costs outlines and draft bills of costs within 15 days, and the Applicant shall have 15 days to respond.
Justice Martin James
DATE RELEASED: April 29, 2021
2021 ONSC 3215
COURT FILE NO.: CV-19-00000061-0000
DATE: April 29, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BRIAN FORRESTER
Applicant
- and –
TOWNSHIP OF DRUMMOND/NORTH ELMSLEY
Respondent
Respondent
-and-
PEDER JENSEN KROGH and MAIDA ELIZABETH MURRAY
Respondents
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: April 29, 2021