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Apr 15, 2013
A&B Successful in Precedent-Setting Municipal Law Case
Christopher J. Williams and Jody E. Johnson, with assistance from Piper Morley, successfully represented the Township of Oro-Medonte in its application at the Superior Court of Justice to determine the status and ownership of the Lake Shore Promenade. In a precedent-setting decision dated March 7, 2013, Justice Howden clarified the law in relation to possessory title and found that there can be no adverse possession against municipal land whether used as a highway or for any other public purposes.
In Oro-Medonte (Township) v. Warkentin, Justice Howden established a new test to determine whether lands held by a municipality are immune from claims of neighboring landowners based on prescriptive rights or adverse possession. This two-pronged test requires that: (i) the land was purchased by or dedicated to the municipality for the use or benefit of the public, or for the use or benefit of an entire subdivision as well as the public at large; and (ii) since its acquisition by the municipality, the land has been used by and is of benefit to the public.
Justice Howden found that there was an intention to dedicate the land as a public highway but, on a technical point related to the width of the road in certain places, the municipality had no authority to accept the road. However, there was a finding of implied acceptance and Justice Howden found that it was accepted as municipal land for the use and enjoyment of all. As a result, Justice Howden found that the Township of Oro-Medonte met the requirements of this test and that there could be no adverse possession against this municipal land. A trial was ordered to determine whether specific structures constructed on the lands were subject to laches. There is no appeal of Justice Howden's decision.