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What Is a Public Highway?
Keith M. Jones
Keith M. Jones
Keith M. Jones
Keith was born in Simcoe and is a founding partner in the firm. His experience in real estate in Norfolk County gives him the leading edge on all real estate issues.

With the dominance of the automobile in our society, we take for granted our right to pass over roads and highways without giving it much thought. However, if you are an adjoining land owner, the right of passage over a road can be more than an annoyance. Property values can be affected by rights which exist or rights which people think exist over roads and highways.

The general rule is that the public has the right of access and to travel over a public highway. The Municipal Act provides that a public highway is one which is owned and maintained by a public authority, be it the Federal or Provincial Government, or a Municipality. The highway is a common and public highway that includes a street and any bridges, and includes what is often referred to as the road allowance, being the untravelled portion of the road.

Such a highway gives all members of the public the right to "pass and re-pass".

Section 261 of the Municipal Act defines what constitutes a public highway. This section starts with the exception that public highways are not highways that have been "stopped up according to law". It defines public highways as an allowance for roads made by Crown surveys, all highways established under authority of the statute, all roads upon which public money has been spent for opening them, all roads passing through Indian lands, all roads dedicated by the owner of the land for public use, and "all alterations and deviations of and all bridges over any such allowance for road" as being common and public highways.

A brief review of each category is needed.

In the 1800's, this part of Southern Ontario was the subject of Crown surveys which laid out many of the Township and Concession roads which we travel daily. However, it was rare to have such a Crown survey of the towns and villages. Highways created by a Municipality under the Municipal Act, or by the Province of Ontario under its many statutes, are deemed to be highways.

The next category is much more difficult. The fact that public monies may have been spent on a road is not necessarily mean it is a public highway. To do so would amount to expropriation without compensation. There must be dedication by the owner. This is often problematic, if there is no written form of dedication to conclusively prove this. A number of cases have relied on presumed dedication through acts of the owners.

More on that in a moment.

Roads that pass through Native reserves are affected by Federal legislation going back to the British North America Act of 1867. Suffice it to say, these roads have special status.

The final and most difficult, and highly litigated, area, are roads created by dedication of the land owner. If there is a clear intention by an owner of land to dedicate it to a Municipality, and there is clear acceptance of that dedication by a Municipality, then the maxim "dedication + acceptance = ownership" applies.

However, it is often not that clear, either on the owner's dedication or the Municipality's acceptance. Many Court battles have been fought over roadways leading to cottages, where the cottage owners want the Municipality to be responsible for maintenance and snow clearing. The Municipality often doesn't want to have anything to do with these "cottage roads" and do everything to avoid accepting responsibility. However, everyone has a long memory when it comes to a township's friendly snow plough operator who just "helps out" by a neighbourly act of snow ploughing.

However, the law in Ontario at this point is that more than just trivial work or occasional maintenance is needed to show that a Municipality has accepted a road. The dedication of the owner, if not specific, can be presumed if there has been long use of the property for road purposes.

When it comes to subdivisions, the Surveys Act is very clear. Every road allowance, highway, street, lane, walk, and "common" shown on a Plan of Subdivision is deemed to be a public road, highway, street, lane, walk and "common". Upon registration of the Plan, the public is deemed to own the streets and lanes as described on a registered Plan.

Although the Municipality owns it, it is under no obligation to maintain it and members of the public who use it do so at their own risk. The Municipality can simply take title without either opening or closing the street or lane or road.

And speaking of closing, that is a matter for another article.

Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.

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