57 Roads

CASE LAW

Map or Plan “Annexed” to Crown Grant

A map or plan “annexed” to a Crown grant within the meaning of s. 57 need not be physically attached to the grant provided that the plan is clearly identifiable and is referred to as going to determine the extent of the grant. Similarly, the effect of s. 57 is not intended to be limited to cases where a road actually exists at the time of the making of the Crown grant. It extends to all cases in which any road allowance is shown, regardless of whether the allowance is designated as a “road” or “proposed road”. Finally, a grant should be taken to convey the area of land described by the legal description as illustrated on the plan referred to, whatever the area may prove to be. The acreage mentioned in the Crown grant in this case, which was greater than the area remaining in the parcel once the road allowance was accounted for, was not definitive of the area granted. There was no ambiguity in the grant once it was read in association with the plan and the requirements of s. 57 (British Columbia v. Hilyn Holdings Ltd., 1991 CanLII 2397 (BC CA), reversing in part 1989 CanLII 5270 (BC SC)). Note that the reference in s. 57 to a map or plan “annexed to the grant” was changed to “attached to the grant” in the 1996 consolidation of British Columbia statutes.

No Evidence or Intention to Dedicate a Road

By Crown grant, a quarter-section of 160 acres “more or less” was conveyed to one of the defendants. The plan annexed to the grant showed the entire quarter-section coloured in red, including a narrow strip of land along the full length of the west and south boundaries enclosed within the plan by a parallel dashed line. The registrar accepted and registered the grant in 1884. The grant was consistent with the plan annexed to it, and the survey lines on the ground (that is, the parcel described in the grant) was the size and in the location it was represented to be. The strip of land along the west and south boundaries was subsequently subdivided and sold as two parcels. The municipality acquired one of the parcels and dedicated its parcel as a public road. The plaintiffs, owners of a lot adjoining remaining Parcel A, applied for a declaration that Parcel A was also a road. In dismissing the plaintiffs’ action, the court found that the words “road” or “road allowance” did not appear in the grant or on the plan annexed to it; that the defendants never manifested any intention to dedicate Parcel A as a road in any of their subsequent subdivision plans for other parts of the section. The court also found that there was no evidence successive owners of Parcel A permitted more than casual passage or the expenditure of public money and thereby concluded that Parcel A could not be a public highway under s. 4 of the Highway Act (now s. 42 of the Transportation Act) (Kirkpatrick v. Parkinson (Public Trustee of), 2001 BCSC 902).

The Court of Appeal found that, while the trial judge arrived at a correct result in concluding that parcel A could not be a public highway, he erred in his approach. When lands are described, as in this case, by a reference, either expressly or by implication, to a plan, the plan is considered to be incorporated with the deed, and the contents and boundaries of the land conveyed, as defined by the plan, are to be taken as part of the description. When a grant contains words that might create doubt or uncertainty, resort must be had to the plan to resolve the uncertainty. Where doubt remains after examining the grant, the survey is determinative. In this case, the words “160 acres more or less” are not definitive of the grant and reference to the annexed plan does not resolve the uncertainty. The best evidence before the court was the surveyor’s field notes, which referred to the disputed area as a road allowance. Thus the road allowance was within the grant. However, as the Crown had never elected to resume the road allowance, it was never converted from a road allowance to a public road either by exception from the grant or by the operation of s. 4 of the Highway Act (now s. 42 of the Transportation Act) (Kirkpatrick v. British Columbia (Registrar of Land Titles), 2002 BCCA 669).