An irregularly-shaped piece of land within a large plan of
subdivision, named Lake Shore Promenade (the
"Promenade"), was dedicated to the
Township of Oro (the "Township") in
1914. Over the years following the dedication, neighbouring
property owners built private structures on the Promenade, with the
Township's full awareness. The Township brought an action
seeking a declaration by the court that the Promenade is
municipally owned. The landowners sought ownership of parts of the
Promenade by reason of long-time possession.
Justice Howden of the Ontario Superior Court of Justice held
that the dedicated land is owned by the Township. The Court
rejected the landowners' adverse possession claim. Justice
Howden explained that "land acquired by a municipality and
used for public purposes is held in trust for the benefit of the
public and cannot be lost, or the municipality's title
extinguished, by reason of ordinary acts or omissions within the
meaning of the law of adverse possession." This conclusion was
reached despite the Township not having exhibited any consistent
responsibility toward the use of the land. However, the Court found
that longstanding private structures could likely be retained.
Because the structures have been in place on parts of the Promenade
for decades and the Township, knowing of their existence, never
asserted its rights as owner, the Township was found to have
acquiesced to their continuance.
Justice Howden clarified the law in relation to possessory title
in determining that under no circumstances can landowners
successfully initiate a claim of adverse possession of municipally
owned land. Caution should be exercised by landowners to ensure
structures are not built on municipally dedicated lands due to a
municipality's ability to successfully found an ownership claim
in the land decades, or even centuries, later.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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