Some cottagers in Haliburton gain access to their cottage properties by a road over another person’s private property. The road may have started long ago, when an owner, in a neighbourly spirit, permitted a cottager to cut across the owner’s private property as a convenience. Time passes, and cottage development increases with many cottagers using the road. The cottagers may now have the illusion that the private road is, in fact, a public road because of all the traffic. Indeed, cottage associations have litigated this very issue in the courts. Some have won, some have lost.
To prove that an erstwhile private road is a public road, there are three ancient legal principles involved. A road becomes a public road by reason of the dedication of the road by the owner of it as a right of passage for the public. “Dedication” means that the owner of the road has either said in so many words, or acted in such way, that the public may infer that the owner was willing that the public should have this right of passage. There must be an intention by the owner to dedicate the road. Often, this is difficult to prove by direct evidence because the original owner is long since dead so this issue is usually proven by circumstantial evidence only, such as the mere fact of the road’s existence for a long period of time.
In addition to dedication and intention, the public must show an acceptance of the road as a public road. Factors which may prove this issue are whether public money has been spent on the road for maintenance and repairs and whether the road has been removed from the assessment rolls of the township where the road is situated. If the title to the road has remained in the name of the present owner and predecessors in title and they have paid the taxes on it, cottagers and their associations may lose the case in court rather than win it.