Adam Bramburger
Beaver Staff
Questions over the ownership of a well-travelled seasonal roadway sparked debate at Stone Mills Township council Monday and at the end of the night, nothing was resolved.
Donald Fenwick and Dieter Eberhardt from the Lennox and Addington Ridge Runners Snowmobile Club appeared before council to discuss a roadway in Camden East running from Bethel Road northeast around the edge of Varty Lake that separates two parts of Lot 30 on Concession 2.
“This roadway has been used by the snowmobile club for 49 years and that’s continuous. Without exaggerating, we can say there’s a minimum of 1,000 sleds a year that use that passage to Harty Lake,” said Fenwick. “Varty Lake is land-locked except for that piece of land. We’re concerned about removing access when it’s been used for a long time.”
The question of public access came forward when landowner Theo Nibourg looked into selling a homestead on the lake. A portion of the roadway is deeded on his property, while landowners Peter and Jane Good also have title to a portion of the roadway on their property.
According to the township’s deputy clerk, Roger Hogan, Nibourg’s lawyer contacted him Feb. 5 this year to seek opinion if the municipality would accept title to the portion of the property that includes the roadway — a decision Eberhardt said he understood was prompted by potential owners raising concerns about liability for people using the roadway. Hogan said he gave some thought to the proposal, but e-mailed back that he saw no value for the township to accept the lands.
Hogan said after shortly after making that decision, he heard allegations about closing a municipal road allowance and that property owners would be denied access to their lands.
“Firstly, it’s not a municipal road allowance, secondly, nothing is being closed, and thirdly nobody is being denied access,” he said.
Eberhardt, a surveyor by trade, set out to make a case he didn’t believe he’d have to make.
“Over the past 100 years or as long a that road has been there, it’s been used and no one’s really questioned anybody’s use of that road,” he said before referencing the potential sale as a trigger.
Eberhardt indicated he believes there is plenty of circumstantial evidence to suggest the road was a township road. It divides the east and west halves of Lot 30 and it is exactly 40 feet wide, matching the original road allowances in Camden Township.
“That road was put there for a reason,” he said, adding the curved nature of the road might suggest a road allowance in lieu of the roadway that continued into the lake. Eberhardt also argued the road may have been developed under statute labour, where prior to the advent of a township roads department, citizens were required to work on communal roads. If that was the case, title lies with the municipality.
In his presentation, Eberhardt suggested the township does maintain 100 metres of the road off Bethel Road. He also supported his claims by sharing an anecdote from a previous landowner that wanted to fence the land in the 1980s to keep illegal hunters and dumpers off it, but was told by Camden East councillors that it was a public access road for properties and Varty Lake.
He also suggested that the Lennox and Addington Ridge Runners received legal permission from the township in 2002 to use the road for trails, showing they had title to the road.
Councillor Doug Davison made that motion then and said he supports the club’s contention that the township should adopt the road.
“It’s been a road as long as I can remember and I’m 70 years old — 71 going on 72. I rode it since I joined the snowmobile club in 1970, he said. “This road has been in consistent use since 1970, that I know of. I’m also aware not many years ago Mr. Nibourg discussed with a member of council he wanted to build a year-round house. We would maintain the road, but council said it’s a non-maintained road.”
Hogan disagreed with the suggestion the path is a municipal road allowance, stating he thought the idea was “ludicrous.” He said the township has other lot lines and concession lines crossing Varty Lake, including eight open road allowances. None of them moved off the line. He said he’s yet to come across a municipal road allowance with a bend in it.
Even if he could accept that theory, Hogan said there’s the matter of title.
“If that being the case, how come the township doesn’t have title? There’s no evidence this is a municipal road allowance. It is entirely located on private lands. The only way it could be passed as a municipal road was if it was a forced road or one where statute of labour was done on it or was done on it.”
Hogan also contested the idea of dedication and acceptance of municipal land. An owner could designate the land for public use, but the township would have to have something indicating it accepted responsibility and it would have to do maintenance.
He also suggested that if council were to maintain the road, and if it accepted the southern part of the road, it might have to accept the northern part as well. That might mean spending $100,000 per kilometre and up to $500,000 to bring it up to standard.
Eberhardt suggested he had a legal opinion based on the Municipal Act that Stone Mills could actually designate the road allowance as an unmaintained road used at one’s own risk. He said that might take the liability off the landowners and the township.
Ultimately, Hogan said it’s up to council on how to proceed.
“I’m not taking any decision away from council. The decision to accept or not accept is a political decision. All I said at the time is the municipality has no advantage in accepting this.”
Deputy reeve John Wise didn’t want to make that decision, nor did his fellow councillors.
“I don’t think we’re going to resolve this tonight,” Wise said. “We’re in a situation that has legal implications, we have two well-presented, completely opposite opinions, and i’m going to need more information and, perhaps, legal advice. I think we have to wrap this up for now.”
Councillors accepted Fenwick and Eberhardt’s presentation without further comment.