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Statutory rights of way in British Columbia
J. Bruce Melville

At common law, an easement is an interest in land which provides certain rights to use the land of another for a specific purpose. It does not provide rights of exclusive possession. Easements are frequently used to provide rights of access or the right to install pipe-lines or drainage works. An essential requirement of a common law easement is that the interest must benefit another parcel of land and the interest cannot be personal in nature. The land encumbered by the easement is referred to as the servient tenement. The land which benefits from the easement is referred to as the dominant tenement.

The expression "right of way" is often associated with easements. However, the concept of a right of way does not have a specific common law meaning and the term is not always used consistently. In some cases, it is used in the same context as an easement. In other cases, it describes fee simple ownership of a strip of land.

One of the shortcomings of the easement, particularly for modern public utilities, has been the requirement for a dominant tenement. Many public utilities have installed thousands of miles of pipe-lines or transmission or telecommunication lines to serve thousands of customers. Identifying which specific parcels of land benefit from an easement can be a difficult challenge that serves no real purpose.

In British Columbia a statutory variation on the common law easement has been in use since 1945. This interest, presently known as a "statutory right of way", allows the creation of an interest similar to an easement without the need for a dominant tenement. This type of interest in land is available only to a restricted class of user, generally government and its agencies and public utilities.

The applicable legislation is found in the present-day Land Title Act and its predecessor, the Land Registry Act. Prior to 1945, the term "right-of-way" was defined in the Land Registry Act. However, this definition did not modify common law easement requirements in any way and it was broad enough to include both easements and fee simple interests.

The statutory right of way concept was introduced by the 1945 amendments to the Land Registry Act. This legislation initially utilized the term "right-of-way" but it was modified to "statutory right-of-way" when the Land Registry Act was repealed and replaced by the Land Titles Act in 1978. This change more accurately reflected the purely statutory nature of the concept. A further minor amendment occurred with the 1979 statute revisions when the hyphens were dropped. Since then the concept has been known as a "statutory right of way".

Another aspect which has changed over the years is the location where these statutory rights can be exercised. Initially the rights could only be obtained "over land". However, this was expanded in 1946 to "over or under land" and further expanded to "on, over, or under land" in 1951.

In 1945, a "right-of-way" was available only for the benefit of municipalities and primarily for water, drainage and sewerage purposes. However, the legislation has been amended numerous times to modify and expand both the purposes and the types of users for whom it is available. In 1978, the list of available purposes was both expanded and simplified at the same time by allowing a "statutory right-of-way" to be used for any purpose necessary for the operation and maintenance of the grantee's undertaking.

Table 1 below summarizes the changes in the available purposes and the list of eligible users. Extracts from the Land Title Act, the Land Registry Act and the amending statutes pertaining to statutory rights of way may be viewed by clicking on the links in Table 2.

Table 1

Purposes and eligible users

Date Purposes Eligible users
1945-03-28
  • conveyance of water
  • drainage
  • disposal of sewage
  • other purpose
  • municipality
1946-04-11
  • conveyance of water
  • drainage
  • disposal of sewage
  • carrying pipes, wires, or transmission-lines
  • railway
  • any rights of a like nature
  • municipality
  • Crown
  • improvement district
  • railway
  • public utility company
1951-04-18
  • laying, placing, and maintaining drains, ditches, pipes, transmission-lines, or wires for the conveyance, transmission, or transportation of water, electric power, forest products, oil or gas, or both oil and gas, or the disposal of sewage
  • constructing, maintaining, or operating any railway, street-railway, or tramway
  • erecting and maintaining any pole-line, wood or timber chute
  • any right-of-way of a like nature
  • any purpose necessary for the operation and maintenance of the undertaking
  • municipality
  • Crown
  • improvement district
  • railway
  • public utility company
  • pulp or timber company
  • company authorized to transport oil or gas, or both oil and gas
1961-03-27
  • laying, placing, and maintaining drains, ditches, pipes, transmission-lines, or wires for the conveyance, transmission, or transportation of water, electric power, forest products, oil or gas, or both oil and gas, or the disposal of sewage
  • constructing, maintaining, or operating any railway, street-railway, tramway, or aerial tramway
  • erecting and maintaining any pole-line, wood or timber chute
  • any right-of-way of a like nature
  • any purpose necessary for the operation and maintenance of the undertaking
  • municipality
  • Crown
  • improvement district
  • railway
  • public utility company
  • pulp or timber company
  • company authorized to transport oil or gas, or both oil and gas
1967-03-23
  • laying, placing, and maintaining drains, ditches, pipes, transmission-lines, or wires for the conveyance, transmission, or transportation of water, electric power, forest products, oil, or gas, or both oil and gas, or solids as defined in the Pipe-Lines Act, or for the disposal of sewage
  • constructing, maintaining, or operating any railway, street-railway, tramway, or aerial tramway
  • erecting and maintaining any pole-line, wood or timber chute
  • any right-of-way of a like nature
  • any purpose necessary for the operation and maintenance of the undertaking
  • municipality
  • Crown
  • improvement district
  • railway
  • public utility company
  • pulp or timber company
  • company authorized to transport oil or gas, or both oil and gas, or solids as defined in the Pipe-Lines Act
  • smelting company
1968-04-06
  • laying, placing, and maintaining drains, ditches, pipes, transmission-lines, or wires for the conveyance, transmission, or transportation of water, electric power, forest products, oil, or gas, or both oil and gas, or solids as defined in the Pipe-Lines Act, or for the disposal of sewage
  • constructing, maintaining, or operating any railway, street-railway, tramway, or aerial tramway
  • erecting and maintaining any pole-line, wood or timber chute
  • any right-of-way of a like nature
  • any purpose necessary for the operation and maintenance of the undertaking
  • right to flood land
  • municipality
  • Crown
  • improvement district
  • railway
  • public utility corporation
  • pulp or timber company
  • company authorized to transport oil or gas, or both oil and gas, or solids as defined in the Pipe-Lines Act
  • smelting company
  • statutory agent of the Crown
  • regional district
1971-04-02
  • laying, placing, and maintaining drains, ditches, pipes, transmission-lines, or wires for the conveyance, transmission, or transportation of water, electric power, forest products, oil, or gas, or both oil and gas, or solids as defined in the Pipe-Lines Act, or for the disposal of sewage
  • constructing, maintaining, or operating any railway, street-railway, tramway, or aerial tramway
  • erecting and maintaining any pole-line, wood or timber chute
  • any right-of-way of a like nature
  • any purpose necessary for the operation and maintenance of the undertaking
  • right to flood land
  • public rights of passage with or without vehicles
  • municipality
  • Crown
  • improvement district
  • railway
  • public utility corporation
  • pulp or timber company
  • company authorized to transport oil or gas, or both oil and gas, or solids as defined in the Pipe-Lines Act
  • smelting company
  • statutory agent of the Crown
  • regional district
1978-06-29
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipe-Lines Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • any other person designated by the Minister of the Environment
1979-07-27
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipe-Lines Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • any other person designated by the Minister of Lands, Parks and Housing
1980-05-17
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipeline Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • any other person designated by the Minister of Lands, Parks and Housing
1992-07-03
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • local improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipeline Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • local trust committee under the Islands Trust Act
  • any other person designated by the Minister of Lands, Parks and Housing
1997-04-01
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • local improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipeline Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • local trust committee under the Islands Trust Act
  • any other person designated by the Minister of Environment, Lands and Parks
1999-03-31
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • local improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipeline Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • local trust committee under the Islands Trust Act
  • Greater Vancouver Transportation Authority
  • any other person designated by the Minister of Environment, Lands and Parks
2003-10-23
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • local improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipeline Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • local trust committee under the Islands Trust Act
  • Greater Vancouver Transportation Authority
  • any other person designated by the minister
2007-11-30
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • local improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipeline Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • local trust committee under the Islands Trust Act
  • South Coast British Columbia Transportation Authority
  • any other person designated by the minister
2010-10-04
  • any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood
  • municipality
  • the Crown, a Crown corporation or agency
  • local improvement district
  • railway corporation
  • public utility
  • pulp or timber corporation
  • pipeline permit holder as defined in section 1 (2) of the Oil and Gas Activities Act
  • smelting corporation
  • regional district
  • water-user's community
  • mining corporation
  • local trust committee under the Islands Trust Act
  • South Coast British Columbia Transportation Authority
  • any other person designated by the minister

Table 2

Legislation

Date Amending statute Consolidated statute
1921-04-02 Land Registry Act, S.B.C. 1921, c. 26  
1924-11-03   Land Registry Act, R.S.B.C. 1924, c. 127
1937-06-30   Land Registry Act, R.S.B.C. 1936, c. 140
1945-03-28 Land Registry Act Amendment Act, 1945, S.B.C. 1945, c. 42 Land Registry Act, R.S.B.C. 1936, c. 140
1946-04-11 Land Registry Act Amendment Act, 1946, S.B.C. 1946, c. 36 Land Registry Act, R.S.B.C. 1936, c. 140
1949-02-07   Land Registry Act, R.S.B.C. 1948, c. 171
1951-04-18 Land Registry Act Amendment Act, 1951, S.B.C. 1951, c. 42 Land Registry Act, R.S.B.C. 1948, c. 171
1961-01-01   Land Registry Act, R.S.B.C. 1960, c. 208
1961-03-27 Land Registry Act Amendment Act, 1961, S.B.C. 1961, c. 33 Land Registry Act, R.S.B.C. 1960, c. 208
1967-03-23 Land Registry Act Amendment Act, 1967, S.B.C. 1967, c. 23 Land Registry Act, R.S.B.C. 1960, c. 208
1968-04-06 Land Registry (Amendment) Act, 1968, S.B.C. 1968, c. 22 Land Registry Act, R.S.B.C. 1960, c. 208
1971-04-02 Land Registry (Amendment) Act, 1971, S.B.C. 1971, c. 30 Land Registry Act, R.S.B.C. 1960, c. 208
1978-06-29 Land Titles Act, S.B.C. 1978, c. 25 Land Titles Act, S.B.C. 1978, c. 25
1979-07-27 Ministry of Lands, Parks and Housing Act, S.B.C. 1979, c. 20 Land Titles Act, S.B.C. 1978, c. 25
1980-05-17   Land Title Act, R.S.B.C. 1979, c. 219
1992-07-03 Miscellaneous Statutes Amendment Act, 1992, S.B.C. 1992, c. 77 Land Title Act, R.S.B.C. 1979, c. 219
1997-04-01   Land Title Act, R.S.B.C. 1996, c. 250
1999-03-31 Greater Vancouver Transportation Authority Act, S.B.C. 1998, c. 30 Land Title Act, R.S.B.C. 1996, c. 250
2003-10-23 Sustainable Resource Management Statutes Amendment Act, 2003, S.B.C. 2003, c. 66 Land Title Act, R.S.B.C. 1996, c. 250
2005-01-20 Land Title and Survey Authority Act, S.B.C. 2004, c. 66 Land Title Act, R.S.B.C. 1996, c. 250
2007-11-30 Greater Vancouver Transportation Authority Amendment Act, 2007, S.B.C. 2007, c. 41 Land Title Act, R.S.B.C. 1996, c. 250
2010-10-04 Oil and Gas Activities Act, S.B.C. 2008, c. 36 Land Title Act, R.S.B.C. 1996, c. 250
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