Decision No. 642-R-2000

October 16, 2000

File No. R 8050/437-001.50

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APPLICATION

On April 26, 2000, Walter Westlund filed with the Canadian Transportation Agency (hereinafter the Agency) an application to change the classification of an existing crossing at the above-noted location to a private crossing, as described in section 102 of the Canada Transportation Act (hereinafter the CTA).

Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until October 15, 2000.

BACKGROUND

Mr. Westlund previously approached a predecessor of the Agency, the Canadian Transport Commission (hereinafter the CTC), respecting this crossing. At the time of his initial contact with the CTC, the legislation which applied to railway crossings was the Railway Act, R.S.C., 1970, c. R-2 (hereinafter the Railway Act, 1970). Crossing classifications that existed under the Railway Act at that time have changed under the CTA, and some clarification may be in order. The Railway Act distinguished between two types of railway-roadway crossings, "highway" and "farm". The term "highway" was defined as including any public road, street, lane, or other public way of communication. Accordingly, instances where a highway traversed a railway line were known as "highway crossings". Highway crossings required approval from the Agency's predecessors. "Farm crossings" involved situations where a person whose land was traversed by a railway line needed to cross the line for farm purposes. The legislation provided that a railway company "shall make crossings for persons across whose lands the railway is carried, convenient and proper for the crossing of the railway for farm purposes" (section 212 of the Railway Act, 1970). These "farm crossings" also involved regulatory approval only where a landowner and a railway company could not agree as to the statutory requirement for the crossing. A third classification of crossings existed although they were not formally referred to by the Railway Act. These were known as private crossings and they fell outside of the jurisdiction of the Agency's predecessors. Such crossings were arrangements between a landowner and a railway company, and were subject to "private crossing agreements" between those parties. While the Railway Act did not formally refer to private crossing agreements, the legislation did provide that in the absence of such private agreement, the Agency's predecessors were, on application, entitled to order the construction of a suitable farm crossing (section 213 of the Railway Act, 1970).

However, these classifications have changed with the repeal of the Railway Act and the enactment of the CTA. The CTA now provides for three types of crossings, "road", "quot;, ", "quot;utility" and "private". A "road crossing" is defined as meaning the part of a road that passes across, over or under a railway line, and includes a structure supporting or protecting that part of the road or facilitating the crossing. A "private crossing" is not formally defined in the legislation, but it is referred to in sections 102 and 103 of the CTA. Section 102 provides that if an owner's land is divided as a result of the construction of a railway line, the railway company shall, at the owner's request, construct a suitable crossing for the owner's enjoyment of the land. Thus, a "private crossing" founded in section 102 of the CTA is akin to a "farm crossing" under section 212 of the Railway Act, 1970. Section 103 of the CTA, akin to section 213 of the Railway Act, 1970, provides that if a railway company and an owner of land adjoining the company's railway do not agree on the construction of a crossing across the railway, the Agency may order the company to construct a suitable crossing for the owner's enjoyment of the land. Under the existing legislation, railway companies and landowners may continue to enter into private crossing arrangements outside of the jurisdiction of the Agency as was possible under the Railway Act 1970. Thus, care must be taken to avoid confusing today's "private" crossings (under the CTA), with crossings that are effected by "private crossing agreements". In an attempt to avoid confusion with the terminology under the former legislation, we shall refer, in this Decision, to arrangements outside of Agency jurisdiction as "private agreements for crossings".

In the case at hand, Mr. Westlund indicates that his land is severed by a portion of the Canadian National Railway Company's (hereinafter CN) Fraser Subdivision, such severance isolating a small parcel of his land, a feed lot north of the railway and south of provincial Highway No. 16. Access to this parcel was formerly afforded by the highway crossing at mileage 1.53 of the Fraser Subdivision, which was authorized to be constructed by the Board of Railway Commissioners for Canada Order No. 28632 dated August 6, 1919.

As part of a project which included extending its yard at McBride, British Columbia, CN applied to the CTC, for authority to close the crossing at mileage 1.53. By Order No. WDR 1984-00124 dated June 22, 1984, the CTC granted CN leave to close the crossings at mileages 1.53 and 0.67, and to construct a new public crossing at mileage 1.18.

In November 1984, Mr. Westlund applied to the CTC pursuant to section 212 of the Railway Act, 1970, (section 215 of the Railway Act, R.S.C., 1985, c. R-3 [hereinafter the Railway Act, 1985]) for a farm crossing at mileage 1.53 of the Fraser Subdivision. The Regional Director of the Railway Transport Committee of the CTC, by letter dated January 14, 1985, advised Mr. Westlund that he could either request a farm crossing pursuant to section 213 of the Railway Act, 1970 (section 216 of the Railway Act, 1985), or apply to the railway company for a private agreement for a crossing, i.e. an arrangement outside of the terms of the effective legislation. In March 1985, Mr. Westlund submitted an amended application, requesting a farm crossing pursuant to section 213 of the Railway Act, 1970. There is no documentation on file respecting the disposition of the application, and no order was issued by the CTC. In 1986, Mr. Westlund subsequently entered into a private agreement with CN for a crossing at mileage 1.53. As part of this agreement, Mr. Westlund sold approximately 0.30 hectares at the southeast portion of the crossing to CN in exchange for the initial construction cost of the private crossing. CN charged Mr. Westlund an annual licence fee for the crossing.

In October 1996, Mr. Westlund was advised by CN that in respect of the subject private agreement for a crossing, CN would be instituting an annual maintenance fee in addition to the regular licence charge. The maintenance fee amounted to more than 300 percent of the annual fee Mr. Westlund had been paying.

By registered mail dated April 28, 2000, CN advised Mr. Westlund that as no payment had been received since 1997, the crossing agreement would be cancelled and the crossing would be removed as of May 30, 2000. The private agreement for a crossing was cancelled by CN and the crossing planks were removed. The crossing was subsequently restored in June 2000 by CN, pending the resolution of this dispute.

POSITIONS OF THE PARTIES

Mr. Westlund indicates that his property is divided as a result of the railway line and that he is the registered owner of the land on both sides of the right of way. He indicates that the crossing is essential for his use and enjoyment of the property, and he is therefore entitled to a private crossing pursuant to section 102 of the CTA. Mr. Westlund also requests that as he is in arrears for payments due to the increase in CN's annual fees, the Agency's designation of the crossing as a private crossing be made retroactive in order to cancel the amount owing to CN. He adds that the fee increase is unreasonable as the crossing has not been maintained and is rotting out.

CN maintains that this matter has already been ruled upon by the CTC and that there has been no change in facts or circumstances which would warrant altering that ruling. CN contends that this crossing is a private crossing by agreement, and that the agreement should be honoured.

On July 26, 2000, the Agency requested further information from both parties. Mr. Westlund submitted a copy of the Title for the S.E. 1/4 of DL 3542, which indicated that it was already divided by the railway when the entire quarter section was purchased by a Mr. Anderson from the Crown in 1943, and that a crossing existed at that time. The land was then transferred to a Mr. Schneider, who subsequently sold the land in its entirety to the current owner, Mr. Westlund, in 1979. Mr. Westlund reiterated the necessity for the crossing as he conducts agricultural activities on both sides of the railway and as it is both risky and illegal to use Highway No. 16 to transport hay bales.

In its response, CN points out that the Abstract Title for the S.E. 1/4 lot 3542 indicates that when the Crown sold the land in 1943, it was sold in its entirety "save and except the right of way of the Grand Trunk Pacific Railway being part of Lot Two thousand and seventy six (2076)", i.e., the railway right of way. CN argues that by reason of the right of way, which was sold by the Crown to the Grand Trunk Pacific Railway in 1921, the subsequent purchase of S.E. 1/4 lot 3542 in 1943 was in two parts on either side of the railway. As the railway line did not sever the land owner's property, CN argues that the location does not meet the criteria for a crossing under section 102 of the CTA.

ANALYSIS AND FINDINGS

Section 102 of the CTA provides that:

If an owner's land is divided as a result of the construction of a railway line, the railway company shall, at the owner's request, construct a suitable crossing for the owner's enjoyment of the land.

It has repeatedly been held by the Agency and its predecessors that the right to a section 102 (formerly section 212 of the Railway Act, 1970) private crossing arises when the railway traverses the lands of an owner in such a way to leave a parcel of his land on each side of the railway. The continuation of that right is dependent upon continued ownership of the parcel of land on either side of the railway. However, if there is severance of the title to the two parcels the right to a section 102 private crossing is lost. Coyne, in Railway Law of Canada, Canada Law Book Co., Toronto, 1947, states at page 349 (with respect to section 272, Railway Act, S.C., 1927, c. 170 - later section 212 of the Railway Act, 1970):

The right arises under this Section when the railway is carried across the lands of an owner in such a way as to leave a parcel of his land on each side of railway. The right is lost upon the complete severance of the title to the two parcels: Hillhouse v. CPR, 17 C.R.C. 427, 20 D.L.R. 907. There is no such complete severance of the title, and therefore the right to a crossing is not lost, if the owner of the two parcels, in conveying one of them, reserves a right of way over it, or grant a right of way over the other parcel: Ibid T.H. & Ry v. Simpson, 8 C.R.C. 464, 170 O.L.R. 632. Where the title of the two parcels has been completely severed, the subsequent acquisition of both parcels by a purchaser does not entitle him to a crossing under section S. 272: O'Brien v. C.P.R., 21 C.R.C. 197.

Further, MacMurchy and Denison in The Canadian Railway Act 1903, Annotated, Canada Law Book, Toronto, 1905, state at page 305:

[w]here the owner of lands on both sides of a railway being in enjoyment of a crossing, sells the land on one side to another without reserving a right of way over the crossing, neither the vendor nor purchaser may use the crossing and the company is entitled to close it up (...) .

Also, in Crozier v. Canadian Pacific Ry. Co. (1923), 28 C.R.C. 157 (B.R.C.), the Board of Railway Commissioners for Canada, a predecessor of the Agency, ruled that a right in respect of a farm crossing is not a right related to the time of construction or to the individual owning land when the railway was constructed, but it is a right which runs with the land and is not affected by a lapse of time. Thus, so long as common ownership of the land on either side of the railway line continues, the right to a crossing also continues.

In the case at hand, the Agency notes that the title for the right of way, parcel no. 2076, across SE 1/4 lot 3542, was transferred by the Crown to the Grand Trunk Pacific Railway in 1921 which had constructed the line in 1913. In 1943, the Crown sold the land to Mr. Anderson in its entirety except part on DL 2076, which was the right of way property transferred by the Crown to the Grand Trunk Pacific Railway in 1921. The SE 1/4 lot 3542 was subsequently sold to Mr. Schneider and thence, in 1979, to Mr. Westlund with the express exclusion of the Grand Trunk Pacific Railway right of way being part of Lot Two thousand and seventy six (2076).

Thus, since SE 1/4 lot 3542 was first acquired by Mr. Anderson with the express exclusion of the Grand Trunk Pacific Railway right of way being part of Lot Two thousand and seventy six (2076), the existence of the railway pre-dated Mr. Anderson's ownership of the land. Accordingly, the Agency finds that Mr. Westlund is not entitled to a section 102 private crossing.

The Agency notes that Mr. Westlund has requested that the Agency's decision be made retroactive in order to cancel his payments that were required under his private agreement for the crossing with CN. As the Agency finds that Mr. Westlund has no entitlement to a section 102 private crossing, the issue of retroactivity is moot.

Based on the information on file, the Agency notes that the private agreement for a crossing entered into between Mr. Westlund and CN was cancelled as of May 30, 2000. Subsection 103(1) of the CTA provides that if a railway company and an owner of land adjoining the company's railway do not agree on the construction of a crossing across the railway, the Agency, on the application of the owner, may order the company to construct a suitable crossing, if the Agency considers it necessary for the owner's enjoyment of the land. Subsection 103(2) of the CTA provides that the Agency may include in its orders, terms and conditions governing the construction and maintenance of the crossing. Based on the evidence on file, the Agency is of the opinion that a crossing is necessary to Mr. Westlund for the enjoyment of his land. As such, Mr. Westlund, if he wishes to retain the use of the crossing, may apply to the Agency for a crossing pursuant to section 103 of the CTA. With respect to the terms and conditions governing the construction of the crossing, the Agency notes that, in this case, the crossing was originally constructed at Mr. Westlund's expense and has now been restored by CN to a functional condition. With respect to the terms and conditions governing the maintenance of the crossing, the Agency could determine what would be a reasonable annual maintenance fee for the crossing. Alternately, Mr. Westlund may enter into a new private agreement for a crossing with CN.

CONCLUSION

In light of the foregoing, the Agency hereby dismisses the application of Mr. Westlund.