The facts
This case involves a "rails to trails" conversion. Frequently, when railroad lines are abandoned public recreational trails are developed on the former railroad right of way. However, sometimes the new land use meets with opposition and legal challenges result. This is one of those cases.
The Railroad Act, 1871 (S.P.E.I. 1871, c. 4), enacted by the Legislature of Prince Edward Island in 1871, before union with Canada, authorized the construction of a railroad through Prince Edward Island and the expropriation of land for this purpose. When Prince Edward Island became part of Canada in 1873, the Terms of Union provided that the railroad would become federal property. After union, the federal government assumed responsibility for completing construction. It operated the railroad and later discontinued it. From 1923 to 1989 the railroad was actually operated by Canadian National Railway (CNR), a federal crown corporation. However, the land continued to be owned by the federal government. All railway operations were officially abandoned by 1989.
In 1994 title to part of these former railroad lands was transferred to the Province of Prince Edward Island. The provincial Trails Act, R.S.P.E.I. 1988, c. T-4.1, came into effect in 1995 which provided for the establishment and operation of trails on Crown lands for recreational use and enjoyment. Subsequently, the province promoted public recreational use of the former CNR right of way under the name "Confederation Trail". This trail has also been incorporated into and promoted as part of a national network of trails known as the "Trans Canada Trail".
Five of the eight respondents were owners of land adjacent to the Confederation Trail. Their lands were remainder parcels left behind after the railway right of way was expropriated in 1874. The respondents were farmers with active operations on their lands. One operated a dairy farm. Another had a beef operation. A third raised beef, silver fox and mink. In each case the farms which they owned had been severed by the railway takings in 1874.
In 1998, some of the Respondents blockaded the trail with logs, excavations and barbed wire fences. They harassed and threatened trail users and government employees. As a result the province applied to the court for an injunction intended to halt these activities.
Issues
The primary issue was the nature and extent of the province's current title to the Confederation Trail lands. However, a number of sub-issues were considered by the court: whether the original 1874 expropriations were valid, whether the railway had acquired a fee simple title or merely an easement, whether upon abandonment of railway operations title to expropriated lands reverted to the former owners and whether the transfer of title to the province in 1994 was valid.
The court was also required to consider the conduct and intentions of each of the eight respondents.
Decision
The court held that the original expropriations were valid, having been carried out by the province pursuant to the Railroad Act, 1871, even though expropriation occurred in 1874, after Canada had assumed responsibility for the railway.
The court also found that the province had acquired a fee simple title to the lands in 1874. One of the respondents cited a number of American case law authorities to support an argument that the province had only acquired an easement. However, the court observed that American and Canadian law and practice on that issue is quite different.
The court also found that the province's title was not conditional upon continued operation of the railway and the adjacent landowners had no legal right to recover title to the railway lands upon abandonment of railway operations.
As for the 1994 transfer of title back to the province, the court had more difficulty. The effect of this transaction was complicated by the fact that the federal government transferred title initially to the CNR which transferred title to the province a few days later. By 1994 the CNR no longer operated any railways in the province so a question arose as to whether it was within the CNR's corporate powers to acquire title to this land. Notwithstanding this uncertainty the court concluded that the province had a sufficient interest in the land to seek the injunction requested.
After consideration of the conduct and intentions of each respondent, the court imposed an injunction against four of the eight respondents.
Comment
The court observed that none of the respondents were opposed to trail development in general. Instead, the respondents were lobbying for the right of adjacent landowners, especially farmers, to get back former railway property upon cessation of railway operations. The strategy of physically obstructing users of the trail undoubtedly generated publicity for their cause. However, this case determined that there was no such legal right. In fact, Canadian expropriation statutes generally provide few if any reversionary rights to former landowners (or their successors in title) after an expropriation is completed. The court chided the respondents for relying too heavily on American jurisprudence when they took the position that their constitutional property rights were being violated by the province's actions. It pointed out that property rights are not protected by the Canadian Constitution.
An interesting point that is mentioned in the decision is that abandonment of railway operations is not the same thing as abandonment of expropriated lands. When the CNR formally ceased operations in 1989, this was the result of a statutory process under the National Transportation Act, 1987, R.S.C. 1985, c. 28 (3rd Supp.). The respondents appear to have advanced an argument that formal abandonment of railway operations automatically triggered rights in their favour under the expropriation legislation but this was rejected.
The respondents also raised some concerns relating to severance of their farm properties by the right of way. Severance is a common impact from right of way acquisition. However, compensation is normally paid to compensate for it. Subsequent land transactions on a remainder parcel will take the impact into account. On Prince Edward Island, the effects of severance were further mitigated during the period while the railway was operating by virtue of provisions in the provincial Railway Act. This legislation imposed an obligation on the railway to provide and maintain fences, gates and farm crossings.
Unfortunately for the respondents, once the railway operations ceased, the benefits of the Railway Act were no longer available and the Trail Act did not impose the same obligations on the trail operators. On the other hand, the terms under which the right of way lands were restored to the province in 1994 required the province to maintain and respect all farm crossings. At the hearing, the province agreed that the existing farm crossings were inherent rights of adjacent landowners. Nevertheless, this was not a complete answer to the respondents' concerns because it did not properly address crossing safety issues. For example, one respondent drove his herd of dairy cattle across the right of way four times each day. For the safety of both cattle and trail users, it was essential that the right of way be blocked by a gate while crossings were taking place. The Railway Act had required the CNR to provide such gates but the Trail Act did not.
During submissions, the court heard a number of landowner concerns about possible impacts to adjacent lands from recreational use of the right of way. The concerns included vandalism, loss of privacy, decrease in property values, unsanitary behaviour of trail users, use of herbicides and stone dust, increased risk of fire and trespass. Most of these concerns are specific to recreational trail use of the right of way. If the right of way had been expropriated specifically for recreational trail uses rather than railway uses, these landowner concerns would have been factored in to the compensation award under the heading of injurious affection. It is unlikely that compensation paid following the 1874 expropriation would have reflected these impacts because recreational uses would not have been contemplated at that time. However, the court found that these concerns were not relevant to the injunction application.
Subsequent to the decision in this case, four of the land owners brought a separate action against the Province in an attempt to force the Province to install and maintain fencing, gates and farm crossings on the Confederation Trail adjacent to their properties. Although they achieved some success at trial [2002] EXLAW 1, most of the gains were later set aside on an appeal by the Province [2003] EXLAW 18.
I selected this case for comment because of the interesting facts and issues that are very thoroughly considered in the decision. These issues are not unique to Prince Edward Island and in fact have arisen in many other provinces as other "rails to trails" projects are pursued.
For another case which considers the legal status of an old railway right of way following abandonment of railroad operations, see my case comment on a subsequent New Brunswick case, Vihvelin v. St. John (City), (2000), 71 L.C.R. 109. In that case, it was found that upon abandonment, title to the right of way lands reverted to the original title from which the lands had been taken. The different results are totally dependent upon the wording of the legislation in effect at the time when the railway rights of way were expropriated.
The province was represented at the hearing by Roger B. Langille, Q.C. and Laura A. Kell. All of the respondents appeared on their own behalf.
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