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A West Kootenay farming couple has lost a bid to get a strip of former railway land turned over to them by the province for farming purposes.
“There was an element of recklessness and willful blindness on the part of the plaintiffs. They proceeded with the purchase of (the land) when their survey clearly showed the existence of the railway corridor,” B.C. Supreme Court Justice Dennis Hori said in an April 5 decision after a Kamloops trial.
Plaintiffs Timothy Jon Fox and Faye Kathleen Fox own a 33-acre parcel of farmland within the Agricultural Land Reserve (ALR) in the West Kootenay.
A 99-foot-wide strip of old railway corridor land owned by B.C.’s Ministry of Forests, Lands, Natural Resource Operations and Rural Development bisects part of the property.
The couple resides on the land and uses their property and the railway corridor for raising livestock. They have also built structures on the corridor.
The province claimed that future use of the corridor might include its use as a transmission corridor for utilities or a public trail.
After receiving trespass notices from the province in 2014 and 2016, the Foxes have asked the court to move the railway corridor closer to an eastern boundary of their land in exchange for another piece of property.
An 1899 survey delineated the corridor’s boundaries and granted it to the Nakusp and Slocan Railway (NSR), which operated a railway between Nakusp and Sandon. No railway currently operates within the corridor.
The Canadian Pacific Railway (CPR) became the corridor’s owner around 1957 when it took over the assets of the NSR. CPR transferred the title to the province in 1995.
Of the NSR’s 57-kilometre line between New Denver and Nakusp, approximately 12 kilometres pass through the ALR.
The province applied to the Agricultural Land Commission (ALC) for an order authorizing non-farm uses for those 12 kilometres.
The ALC denied the province’s application.
However, the NSR rail line remains Crown land, and the province intends to continue to allow public use of the Crown land as it has historically done.
Before the 2003 purchase of the land, Timothy had survey work done and believed the rail corridor was included in the title to the property.
After the first trespass notice arrived, the plaintiffs asserted their belief that the property was theirs. The province took no further action until the 2016 notice was issued.
“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. In weighing the balance of convenience, the plaintiffs’ conduct in forming their belief is relevant,” the ruling stated
