A West Kootenay couple’s bid to keep land for farm use despite a provincial railroad right of way has been rejected by the B.C. Supreme Court.
Timothy Jon Fox and Faye Kathleen Fox own a 33-acre parcel of farmland within the Agricultural Land Reserve in the West Kootenays. A narrow strip of land approximately 99-feet-wide that is part of a historical railway that bisects the Foxs’ parcel from its northern boundary to the southern boundary.
The railway corridor is currently owned by the B.C. Ministry of Forests, Lands and Natural Resources. It once operated as the Nakusp Slocan Railway and was subsequently owned by Canadian Pacific Railways before being transferred to the province. No railway currently operates on the line.
Despite conducting a survey on the land prior to purchase that showed the railway corridor bisecting the parcel, the couple believed the railway was historical and no longer used, therefore they believed they owned the land. However, the province intends to use the railway as a multi-use trail and may use it for utility infrastructure in the future.
On July 18, 2014, the province issued a trespass notice to the couple demanding they cease occupying the railway corridor. The couple had been using land within the railway corridor to graze livestock and had built both a pig barn and a fence within the rail’s right of way. The estimated cost of removing the pig barn is $33,500 and the value of the fence is estimated at $70,000.
After receiving the notice, the couple disputed the province’s claim to the railway as crown land. The province took no further steps to enforce the trespass notice and did not reply to the couple’s dispute.
Assuming that meant the matter was settled, the couple proceeded to build a horse barn in the right of way in 2015. The estimated value of the barn is approximately $81,400.
They received a second trespass notice in 2016, requiring them to remove the fences and structures, cease occupying and using the land, and open any gates that may prevent access to the line.
After receiving the second notice, the couple offered to move the corridor closer to the eastern boundary of their parcel, but that was rejected by the Agricultural Land Commission.
The couple claims that without the use of the railway corridor they will not be able to continue their livestock operation. However, the province contends that maintaining ownership of the railway is in the public interest.
B.C. Supreme Court Justice Dennis K. Hori wrote that although the couple sincerely believed their parcel included ownership of the former railway, their belief was based on a failure to properly inquire about the status of the land.
“The plaintiffs may have assumed that they had the right to occupy the Railway Corridor, but such an assumption was not based upon any representations or assurances by the province,” he wrote.
“The plaintiffs may have had an honest belief that the railway corridor was their property, but they formed that belief in the face of contrary information that they could have easily verified by further inquiry.”
Justice Hori concluded that the province maintains ownership of the rail line and dismissed the couple’s claims for relief.