There is not the drama of Gunfight at the O.K. Corral. However, a case in Calgary’s Court of Queen’s Bench is instructive for private landowners who may wish to build something on their own initiative on Crown land.
A case in Calgary’s Court of Queen’s Bench has pitted a renowned local ranching family against the Municipality of Rocky View. At issue is the future of a private runway the family built in the early 1970s. Although the air strip is mostly on land the ranchers own, part of it crosses a provincial road allowance that is under the direction of the Municipality. The case is that of CL Ranches Ltd. V Rocky View, 2021 BQB 504 (CanLII), https://canlii.ca/t/jgsqh.
CL Ranches (CLR) is a 15,000-acre spread about 25 kilometres west of Calgary’s present city limit. The Copithorne family owns the acreage, which has expanded over the decades from when it was a few hundred acres of windswept Prairie grassland. An Irish immigrant named Richard Copithorne from Cork, inspired by tales of his brother John who had emigrated to Calgary four years before, arrived in the dusty frontier town in the spring of 1887. After working several months as a labourer, Richard had saved up enough money to buy a team of horses, a wagon, and some supplies, then headed west to meet John. They set up a homestead together and settled in for the winter.
The brothers got into mixed farming, churning their own butter and hauling it into Calgary several hours away to sell or trade for provisions. They eventually earned enough money to buy a herd of Durham cattle; by 1895, Richard was on his own and had registered the CL brand, which endures to this day.
CL Ranches has a reputation as an efficient operation that combines the best practices of modern animal husbandry, genetic science and cross-breeding to yield strong, healthy cattle that are raised naturally without hormones. However, there is another aspect of the family business that has put the Copithorne ranch on the radar of film and television producers, directors and location scouts around the world. There is a frontier town that has served as the set for countless gun fights and saloon brawls for the past two decades, in productions that include Lonesome Dove, Heartland and Hell on Wheels.
The private landing strip probably would have remained under the radar had the county’s Municipal Planning Commission (MPC) not been asked to approve the subdivision of a neighbouring landowner, Raymond and Patricia Nicholl. The Nicholls had applied to the MPC for a development permit to allow them to subdivide a quarter section of land into two 80-acre parcels and then give 80 acres to their son to build a house. The problem that arose was the road allowance which ran between two parts of the property owned by the Copithornes. The Municipality was prevented from building a road by the presence of the Copithornes’ landing strip. The Copithornes’ made an application for a judicial review of the MPC decision to permit the subdivision and subsequent construction of a road. The matter was to be set down for a hearing in late 2021. However, the Copithornes made an application for a preliminary interlocutory injunction that would put a halt to the proceedings pending a final determination of the matter.
In order to succeed with the application for an injunction, based on a test set out by the Supreme Court of Canada in RJR-Macdonald v. Canada, 1994 CanLII 117 (SCC), the Copithornes’ as applicants had to establish three things: i) there is a serious issue to be tried; ii) the applicants would suffer irreparable harm if the injunction were not granted; and iii) the balance of convenience supported granting the injunction. The Queen’s Bench justice who heard the application had no problem finding a serious issue to be tried. However, on the other grounds, he saw no need to grant an injunction. Among other questions, a private landowner has no right to acquire an interest in public lands by way of a property doctrine known as adverse possession.
The justice took note of the fact that the Copithornes had entered into a licensing agreement with the Municipality of Rocky View many years before to permit them to use the road allowance for purpose of letting their cattle graze there, and no other purpose, certainly not the construction of a runway. The presiding judge alluded to the applicants being the authors of their own misfortune in building a runway on Crown land. To allow the applicants to benefit from their actions would be illogical as it would in effect be permitting a trespass to continue. Moreover, it would be contrary to the public interest in constraining the Municipality from developing the neighbouring parcel of land and constructing a service road.
Although a final determination of the matter remains to be seen, the Queen’s Bench decision to deny an interlocutory injunction may be regarded as a foreshadowing of what is to come.
By Brian Seaman, LL.B.