The Doctrine of Public Dedication of Private Property
in Quebec Civil and Statute Law
How secure is the right to own private property? Articles 406
and 407 of the Civil Code have frequently been declared to be the
fundamental provisions of law which provide people with the abso-
lute rights of usus, abusus, and fructus. It is therefore believed that
one possesses the absolute right to use his property in any manner
whatsoever, provided that no law or by-law is violated and that there
is no intent to cause damage or annoyance to another.’ From a
reading of Article 407 of the Civil Code it appears that a property
owner will be protected from expropriation without due and just
indemnification. However, the doctrine of public dedication has
crept almost unnoticed into the civil law system of Quebec, thereby
contributing to the erosion of the once sanctified notion of absolute
ownership. While it is true that the concept of public dedication has
not been used in any major way for a number of years, certain recent
developments have indicated that the provisions of law, both statute
,and otherwise, permitting expropriation without compensation will
soon be revived. For example, in 1960 the Charter of the City of
Montreal was revised,2 but the section empowering the City to gra-
tuitously acquire lands open to the public for ten years was omitted
from the revision. The following year, this newly consolidated Charter
was amended in order to correct the error, in spite of the fact that
this power had apparently been dormant for a lengthy period of
time.3 Today, Article 36 (a) of the Charter of the City of Montreal
reads as follows:
Streets, lanes, highways and public squares continuously open to the public
for ten years or more in the city or any territory annexed thereto, shall
be considered to all intents and purposes the property of the city when
the following formalities have been observed:
1. By resolution of the executive committee, the city shall approve one
or more plans showing the area and the site and giving the description
of all streets, lanes, highways or public squares, or any part thereof, for
which it wishes to avail itself of the provisions of this article.
1 See for example, Drysdale V. Dugas, (1896-97), 26 S.C.R. 20; Canada Paper
Co. v. Brown, (1922), 63 S.C.R. 243; Brodeur v. Choini~re, [1945] C.S. 334.
2 Charter of the City of Montreal, 1960, 8-9 Eliz. II, S.Q. 1959-60, c. 102.
3 An Act to amend the Charter of the City of Montreal, 9 Eliz. II and 9-10
Eliz. II, S.Q. 1960 and 1960-61, c. 97, s. 3.
McGILL LAW JOURNAL
[Vol. 15
2. The original of such plans shall be deposited in the archives of the
public works department of the city and a copy certified by a land surveyor
shall be deposited in the registry office of Montreal.
3. The city clerk shall publish twice in the Quebec Official Gazette,
with an interval of at least three and not more than four months between
each publication, a notice containing
a. the full text of this article;
b. a summary description of the streets, lanes, highways and public
squares concerned;
c. a statement to the effect that the plans provided for in paragraph 1
have been approved and deposited according to paragraphs 1 and 2.
4. The notice provided for in paragraph 3 shall, during the month
following each of its publications
in the Quebec Official Gazette, be
inserted in a French daily newspaper and in an English daily newspaper
published in Montreal.
All rights which might be claimed by third parties respecting the
ownership of the site of the said streets, lanes, highways and public squares
appearing on the plans so deposited shall be extinguished and prescribed
if not exercised by action before the competent court during the year
following the last publication in the Quebec Official Gazette of the notice
above provided for.
At the expiry of such delays, the city shall cause to be registered
against every piece of land concerned a notarial declaration establishing
the fulfilment of the formalities provided for above and such document so
registered shall constitute to all intents and purposes conclusive proof of
the fulfilment of such formalities. The registrar must accept the deposit
of the plans and register the above-mentioned notarial declaration.
The fact that for over ten years a street, lane, highway or public
square has been described and recorded in the register contemplated
in
article 36, or forms part of the plans and resolutions contemplated
in
article S7, shall be conclusive proof that such street, lane, highway or public
square has been open to the public for over ten years.
The city cannot avail itself of the provisions of this article with
respect to land on which it has collected any taxes during the ten preceding
years.
A similar provision is found in the Quebec Cities and Town Act,4
as well as in numerous other statutes dealing with municipal corpo-
rations. The effect of these laws has been to give modified statutory
expression to the common law doctrine of public dedication of real
property.
Common law dedication consists of the appropriation of land
by an implied “gift” from its owner to the public as represented by
a municipal corporation. Roads, lanes, parks, playgrounds, recreation
areas, wharfs, harbours, and market-places have been the objects of
dedication, with the result that it is now generally accepted that
4 R.S.Q. 1964, c. 193, s. 430.
No. 1]
NOTES
any
immoveable capable of use for public purposes may be
dedicated. Where the owner of land makes use of it in such a way as
to invite the public to use its facilities and to consider the land as
its own, then he is deemed to have forfeited his title to it. 5 In order
for these effects to occur, the owner must not merely have tolerated
the presence of the public on his property, but he must have had the
intention to render it to them. 6 This intention will be irrebuttably
proven where he has left his property open to the public for its
unrestricted use, and has set aside those parts of the lots for parks
and streets according to a registered subdivision plan7 Secondly, the
public must have accepted this gift by making actual use of the land
and the facilities located thereon. It is only when both of the afore-
mentioned conditions have not been met that the proprietor will be
able to claim with facility that he did not intend to dedicate the
immoveable in question.
The principle of public dedication differs from the rules and
substance of acquisitive prescription in several important respects.
The operation of dedication does not necessarily depend upon a lapse
of time, but rather is based upon the implied intention, and in some
cases the deemed intention of the owner of land. The notes of Mr.
Justice Mignault as reported in Lord. v. La Ville de Saint-Jean 8 serve
as an illustration of this submission:
De plus, alors que, pour la prescription, il faut que la possession ait dur6
pendant une p~riode fix~e qui peut 6tre interrompue, l’abandon ou destination
pour l’usage du public est complet et d6finitif d6s son acceptation, et sans
que la possession du public ait dur6 pendant une p6riode d4termin~e
a priori.9
Nor does dedication depend upon the good or bad faith of the parties.
It exists independently of any motive other than the intention to
make a gift to the public, and frequently this intention is simply
construed from the facts placed before the courts. Finally, dedication
differs from extinctive prescription in that it is not designed to be
5 See for example, Piette v. St. Maurice Light & Power Co., (1907), 13 R. de J.
237.
6 Corporation of the Township of Onslow v. MeCough, (1906), 30 C.S. 256.
7 Proudhon, Traitg de domaine public, vol. 2, p. 183; Childs v. La Cit6 de
Montrial, (1890), 13 L.N. 355; Rhodes V. Pgrusse, (1909), 41 S.C.R. 264;
Storey V. Cook, (1904), 26 C.S. 203. However, see contra, Warmington V. La
Ville de Westmount, (1895), 8 C.S. 44, (1898), 7 B.R. 234, where the Court
as a question of fact could find no animus dedicandi on the part of the owner
of the land, nor acceptance by the municipality since it had levied taxes upon
the property, hence indicating that it had not yet acquired title.
8 (1921), 61 S.C.R. 535.
9 Ibid., at p. 546.
McGILL LAW JOURNAL
[Vol. 15
a device enabling a possessor in bad faith to assert his claim to
property against the rightful owner who may be deemed to have
forfeited his land due to his negligence in not protecting his title,
or to his prolonged inaction. Although a person who has used a tract
of land as owner, and has fulfilled the other requirements of Article
2193 1o of the Civil Code may eventually be vested with title to it,
in spite of the fact that the registered proprietor has merely tolerated
his presence during the prescriptive period, it will be seen that one
can not lose his rights of ownership when he has merely tolerated
the presence of the public upon his land. Due to the fact that dedi-
cation is a concept entirely distinct from prescription, Article 2220 11
of the Civil Code will be inapplicable since it deals solely with ques-
tions of prescription. Its provisions will not shield an owner from
those claims of a municipality which result from the valid operation
of the rules of dedication, and in any event, Article 2220 is clearly
intended to operate in favour of public authorities operating or
maintaining the facilities therein enumerated.
The ordinary meaning of the words employed in Article 583 12 of
the Code appears to allow for the acquisition of title to land by the
operation of public dedication as it is stated that ownership may be
procured by the “prehension or occupation” of property. These terms
do not refer to prescription since this method of obtaining rights is
separately enumerated elsewhere in the Article. In any event, it is
submitted that Article 583 C.C. is enumerative, and hence is capable
of liberal interpretation. Therefore, even if one can argue that public
dedication is not specifically included in Article 583 C.C., he cannot
also maintain that this omission precludes the existence of the notion
of dedication in the civil law of Quebec.
It is submitted that Article 404 13 of the Code also allows for the
operation of public dedication. The wording of this provision can only
be given full meaning if this view is accepted, notwithstanding this
article’s French origin. Furthermore, each section of the Code must
1oArt. 2193 C.C. provides: “For the purposes of prescription, the possession
of a person must be continuous and uninterrupted, peaceable, public, unequivocal,
and as proprietor.”
“1 Art. 2220 C.C.: “Roads, streets, wharfs, landing-places, squares, markets
and other places of like nature, possessed for the general use of the public,
cannot be acquired by prescription, so long as their destination has not been
changed otherwise than by tolerating the encroachment.”
2 Art. 583 C.C.: “Ownership in property is acquired by prehension or occupa-
1
tion, by accession, by descent, by will, by contract, by prescription, and otherwise,
by the effect of law and obligations.”
13 Art. 404 C.C. reads: “The property of municipalities and other corporations
is that to which or to the use of which those bodies have an acquired right.”
No. 1]
NOTES
be read in conjunction with every other section and be given its
meaning as a part of the entire framework of the law. In this case,
special attention must be given to Article 399 of the Code 14 where
it is stated that public property is regulated by administrative law.
Since the doctrine of public dedication is a part of British adminis-
trative or public law, then it must apply in Quebec, in virtue of this
article, until such time as its operation is specifically excluded by
statute. No such exclusion exists. Article 407 C.C. 15 cannot be said
to be such an exclusion since it deals with expropriation, a concept
entirely apart and distinct from dedication as it concerns the forcible
taking of property for public use, not the “voluntary” cession of
property for public benefit. The rule of Article 776 of the Code
requiring gifts inter vivos to be executed in notarial form has been
held not to affect the operation of dedication in Quebec law.’6
The Supreme Court of Canada has, in at least three different
instances, discussed the problem of whether the rules of common
law dedication do apply in the Quebec Civil Law system. 17 However,
at no time did the Court mention that the reasons for its findings
rested upon the type of analysis which has been made above. It was
in these cases that the earlier jurisprudence, which had considered
as almost self-evident the fact that common law dedication did apply
in Quebec, was questioned and reviewed.’ 8
14Art. 399 C.C. states: “Property belongs either to the Crown, or to munici-
palities or other corporations, or to individuals.
That of the first kind is governed by public or administrative law.
That of the second is subject, in certain respects as to its administration,
its acquisition and its alienation, to certain rules and formalities which are
peculiar to it. As to individuals, they have the free disposal of the things
belonging to them under the modifications established by law.”
15 Art. 407 C.C.: “No one can be compelled to give up his property, except
for public utility and in consideration of a just indemnity previously paid.”
l6Michaud v. La Cit6 de Montrial, (191), 30 B.R. 46, confirmed on appeal
(1923), S5 B.R. 295 (P.C.), [19231 3 D.L.R. 487, (1123), 129 L.T. 417; Mignerand
dit Myrand v. L6gari, (1880), 6 Q.L.R. 120; Guy v. The City of Montreal, (1880),
3 L.N. 402; The Town of Westmount v. War-inington, (1900), 9 B.R. 101. See
contra the notes of Brodeur, J., in Lord v. La Ville de Saint-Jean, (1921), 61
S.C.R. 535, at pp. 541-542. This opinion, as seen in the discussion of the position
of the Supreme Court supra, is, it is submitted, erroneous.
i 7 Harvey v. Dominion Textile Co.,
(.1917-1.9), 59 S.C.R. 508; Gauvreau V.
Pag, (1920), 60 S.C.R. 181; Lord v. Laville de Saint-Jean, (1921), 61 S.C.R. 535.
1′ See for example the following cases where the applicability of the rules of
common law dedication was accepted without detailed logical reasoning: Guy V.
The City of Montreal, (1880), 3 L.N. 402; Mignerand dit Mayrand v. Lggar6,
(1880), 6 Q.L.R. 120; De la Chevrotiare v. La Cit6 de Montrdal, (1886), 12 A.C.
149; Childs v. La Cit6 de Montrial, (1890), 13 L.N. 355; The Town of Westmount
V. Warminton, (1900), 9 B.R. 101.
McGILL LAW JOURNAL
[Vol. 15
Chief Justice Fitzpatrick, in Harvey v. Dominion Textile Co.,1″
held that common law rules of dedication did operate in Quebec, but
his reasoning, as will appear from the extract of his notes to be
quoted, lacked logical substance.
Were it not for the judgment of the Court of Queen’s Bench in Mignerand
dit Myrand v. L5gar6, (1880), 6 Q.L.R. 120, I would be disposed to doubt
that the principle of dedication as applied in English law is known to the
civil law, and to hold that, in the absence of statute, the right of road in
Quebec must be based upon the fact of user by the public, as a matter
of right, for the full period of the long prescription, thirty years. … But
the rule in Mignerand dit Myrand v. Ligar6 has been adopted and followed
in Quebec Courts so universally and for such a length of time that it must
now be accepted as definitely fixing the law and I feel bound to hold that a
public right of way may be constituted in Quebec by direct or indirect
dedication. 20
The foregoing passage illustrates Chief Justice Fitzpatrick’s re-
luctance to deny the effect of dedication in Quebec because of its
general acceptance in previous decisions of lower courts, an accept-
ance which, in Chief Justice Fitzpatrick’s opinion, was contrary to
law. However, his remarks proved to be the commencement of a long
line of opinions on the subject.
Mr. Justice Anglin, in Gauvreau v. Pag6,2′ became the next to
rule that dedication could exist in Quebec law:
While I incline to the view that it is sufficiently established that under
the law of Quebec a highway may be created by dedication,
la
Chevroti~re v. Citj de Montrial; Mignerand dit Myrand v. L6gar6; Rhodes
V. Pgrusse; Harvey v. Dominion Textile Co.); I am clearly of the opinion
that the evidence in this case falls short of what would be necessary to
establish the existence of the necessary animus dedicandi on the part of
the plaintiff or his predecessors in title.22
Mr. Justice Anglin therefore accepted the principle of dedication
on the grounds that ample authority permitted him to do so, but he
did not discuss any other reasons for his stand.
(Do
An argument against the existence of dedication in Quebec law
was set forth by Mr. Justice Brodeur in the Pagg case, but it was
expressed without reference to the Code, and without an analysis
similar to that made in the earlier paragraphs of this work.
S’il n’y avait aucune disposition formelle dans nos codes sur la mati~re,
je comprendrais la force de l’opinion que la “dedication” peut 6tre invoque.
Mais les corporations municipales sont r6gies, comme je l’ai d6ja dit, par
les lois affectant les individus; et elles n’ont pas d’autres privileges que
19 (1917-18), 59 S.C.R. 508.
20 Ibid., at pp. 509-510.
21 (1920), 60 S.C.R. 181.
22 Ibid., at p. 183.
No. 1]
NOTES
leur sont reconnus
formellement par la
ceux qui
loi et les droits
incompatibles avec une disposition de nos lois ne sauralent 6tre r6clam~s
par elles. 23
He erroneously assumed that dedication is a concept which is
repugnant to the provisions of the Code. Furthermore, he had not
considered the wording of Article 399 C.C. which opens the door to
the applicability of English public law in the Quebec legal framework,
and more particularly in the field of municipal law. It is only in
the later case of Lord v. La Ville de Saint-Jean,24 that Brodeur, J.,
implied that the opinion he had previously expressed rested upon
Article 776 of the Code.
La d6fenderesse pr6tend qu’il y a eu dedication (abandon) du terrain
en litige… J’ai d6jb exprim6 longuement mon opinion h ce sujet dans
la cause de Gauvreau v. Pag6 et j’en suis venu A la conclusion que la
doctrine de dedication du droit anglais n’est pas en force dans [le] Qu6bec
et qu’un abandon d’immeuble h titre gratuit ne pouvait pas se faire sans
titre, vu qu’un acte portant donation entre vifs doit 6tre notari6 et porter
minute h peine de nullit6 (art. 776 c.c.).
However, Mr. Justice Brodeur’s view as expressed in Gauvreau v.
Pag6 and in Lord v. La Ville de Saint-Jean basically resulted from
his disapproval of the Privy Council’s judgment in De la Chevroti~re
V. La Cit6 de Montr&al,25 a judgment which was then binding upon
the Supreme Court, and which clearly decided in favour of the
applicability of common law dedication in Quebec. It
is most un-
fortunate that no other studies of this problem were conducted by
other members of the Supreme Court in the Lord and Pagg decisions.
In fact, Mignault, J., actually refused to deal specifically with this
problem in the Pag6 case,2 6 but a complete reading of his notes can
only lead one to conclude that he saw the principle of dedication as
being an integral part of the civil law of Quebec. Finally, in his
dissenting opinion in the Lord decision, Duff, J., stated abruptly
and without setting forth any reasons:
I have not been able to convince myself that the principle of dedication
as understood in common law is a part of the law of Quebec. 27
The preceding analysis of the three Supreme Court decisions of
Harvey v. Dominion Textile, Gauvreau v. Pagg, and Lord v. La Ville
de Saint-Jean reveals that the weight of authority favours the opinion
that common law dedication forms a part of Quebec law. Only
Brodeur and Duff, JJ., have categorically held the contrary view.
23 Ibid., at p. 190.
24 Supra, n. 8, at pp. 541-542.
25 (1886), 12 A.C. 149.
2 6 Supra, n. 21, at p. 199.
27 Lord v. La Ville de Saint-Jean, supra, n. 24, at p. 536.
McGILL LAW JOURNAL
[Vol. 15
Although it is true that the judges maintaining the applicability of
dedication in Quebec may not have based their decisions upon flawless
reasoning, it is submitted that until a Supreme Court judgment
specifically reversing their stand is rendered, dedication will operate
in Quebec as a matter of law. Meanwhile, property owners would be
most unwise to act as if the doctrine of dedication did not apply,
and not to take measures to prevent the untramelled use of their
property by the public.
The burden of proving that in a particular fact situation dedi-
cation has occurred will lie upon the party which claims the dedica-
tion. Laurent expressed this rule in the following manner:
I1 faut que la commune prouve que le chemin est public. Le fait que les
habitants ont pass6 par le chemin ne suffit pas pour qu’il soit public,
puisque le passage peut n’6tre qu’un passage de servitude, c’est;h-dire de
toldrance. 2s
The notes of Mr. Justice Anglin in the Harvey case further illustrate
the difficulty of proving dedication.
Long continued user by the public is only evidence of the intention to
dedicate. Its value depends on the circumstances… Abandonment or dedica-
tion to the public will not be lightly presumed.
Viewed most favourably to the defendant, the facts here in evidence
are as consistent with an intention not to dedicate as with an intention to
dedicate: and that will not suffice. 29
It would therefore appear that dedication will only operate where
a proprietor has committed certain unequivocal acts displaying, or
deemed to display, his intention to cede his property. 0 Merely per-
mitting or tolerating the public to pass over a private approach to
a store or residence will not in itself constitute such an unequivocal
act.31 The party alleging dedication will have to prove it by some
positive evidence where the facts do not give rise to presumptions
which fulfill the requirements of being “graves, pr6cises, et concor-
dantes”. 32 The proof that there is heavy traffic upon the land will
not in itself create a presumption favouring dedication. 3 However,
2 8 Laurent, F., Principes de Droit civil, 5th ed., vol. 8, No. 218, p. 269.
2 Harvey v. Dominion Textile Co., supra, n. 19, at p. 525.
3OLa Cit6 de Montrial v. Kerry, (1920), 29 B.R. 242.
31Harvey v. Dominion Textile Co., (1917-19), 59 S.C.R. 508, (1916), 25 B.R.
294; Gauvreau v. Pagg, (1920), 60 S.G.R. 181; The Corporation of the Township
of Onslow v. McGough, (1906), 30 C.S. 256; Walsh v. La Corporation de Casca-
pediac, (1898), 7 B.R. 290.
32An example of the rigid evidentiary requirements appears in Corporation
of Saint-Martin v. Cantin, (1879), 2 L.N. 14.
33 Alain v. Cit6 de Ldvis, (1930), 68 C.S. 314; Kearns v. The Corporation of
the Township of Low, (1923), 35 B.R. 54; Grenier v. La Corporation de Saint-
Elzdar, [1953] C.S. 11.
N’,o. 1]
NOTES
if the owner of the land has maintained it and a public authority
has not undertaken that task at the time when dedication is alleged
to have occurred, then the party invoking dedication will be permitted
to prove that the owner had the intention to dedicate. 34
Although the common law rules of dedication have required that
the owner have a voluntary intention to dedicate, certain Quebec
jurisprudence has held property to be dedicated where a by-law or
homologated line prevented a person from completely using his land
or enclosing it. In Piette v. St. Maurice Light and Power Company,3 5
it was held that the owner of a lot who built a sidewalk when so
obliged by a municipal by-law was presumed to have accepted the
line between the sidewalk and his land as being the line between
his land and the public road. The public was held to have been
justified in considering the sidewalk as a part of the road, and the
owner was presumed to have abandoned a strip of land separating the
sidewalk and the road by dedication.
Since dedication is a gratuitous disposition of property, it was
held at common law that the rules pertaining to gifts .and alienations
generally would apply. For example, the law would not support a
claim that dedication had occurred where the purported “dedicator”
had no power to alienate. 36 At the time of the alleged dedication,
the “dedicator” had to be the absolute owner, in fact and in law,
of the land, and some decisions went so far as to dismiss an action
to have property declared to have been dedicated where the owner
had granted another a real right in his property.3 7
The “offer” made by an owner to the public, either by declaring
his intention to dedicate or by opening the land to public use, will
have to be “accepted” during the lifetime of the proprietor.3 8 The
jurisprudence indicates that the existence or non-existence of dedi-
cation will be a consideration of fact, to be determined in the ordinary
manner from the circumstances viewed as a whole.3 9 Thus, although
one of the main requirements of dedication is that the public be given
34 B61anger V. La Corporation de la Paroisse de Saint-Thuribe, (1920), 57 C.S.
193, (1920), 58 C.S. 1 (Ct. of Rev.); Grenier V. La Corporation de Saint-Elzar,
[1953] C.S. 11.
35 (1907), 13 R. de J. 237, also applied in Ville de Jacques-Cartier V. Lamarre,
[.1959] B.R. 175.
36 C.P.R. v. The City of Vancouver, (1890-93), 2 B.C. 306.
37 Fitzgibbon v. The Corporation of the City of Toronto, (1865), 25 U.C.Q.B.
137.
38La Citg de Montreal v. O’Flaherty, (1916), 49 C.S. 521.
39 Geoffrion v. Montreal Park and Island Railroad Co., (1901), 20 CS. 559;
Scalan v. La Cit6 de Montreal, (1900), 17 C.S. 363.
McGILL LAW JOURNAL
[Vol. 15
unrestricted use of the land,40
the courts will not support the
contention that public user by itself creates a presumption of the
owner’s animus dedicandi.41 Frequently the courts will clearly ra-
tionalize that the facts indicate a public user which was merely
casual and desultory, even though it would appear on the whole
that dedication had in fact occurred. 42 Dedication will be deemed not
to have taken place where the testimony of members of the general
public sufficiently reveals that it was common knowledge that the
land was private property.43 It is submitted that these examples of
the reluctance of courts to permit the easy proof of dedication serve
as an important safeguard of private rights. Were it not for these
rules, it would be possible for the public to make a strong argument
in favour of dedication of land where cars are freely parked for
unlimited lengths of time by anyone so desiring, or where vacationers
stop at certain roadside areas for picnic lunches or to camp because
those particular locations just happen to be pleasant spots.
Statutes dealing with municipal corporations frequently provide
that the city may accept the land which is gratuitously ceded to it;
for example, Article 957 of the Charter of the City of Montreal states:
The City is authorized to accept the gratuitous cession of any land required
for the opening or widening of a street or lane.
In De la Chevroti~re V. La Cit6 de Montreal,44 a decision rendered by
the Privy Council before the enactment of what is now Article 957 of
the Charter of the City of Montreal, Lord Fitzgerald discussed the
question relating to which public body could accept the dedication:
The Canadian law agrees rather with the law of Scotland, which is founded
on civil law, namely, that when a street or road becomes a public highway
the soil of the road is vested in the Crown if there is no other public
trustee, or, if there is a corporate body that fills the position of trustee,
then it is in that corporate body in trust for the public use. 45
Although the foregoing dictum confuses Quebec and Canadian law,
it would appear that it pronounces the law on the problem of which
40 Plante v. La Corporation de Princeville, (1919), 55 C.S. 210; La Corporation
do Cartierville v. Jasmin, (1920), 58 C.S. 490; Nolin v. Gosselin, (1915), 24 B.R.
289; Corporation de Saint-Pierre v. Corporation de Notre-Dame-du-Lao, (1933),
71 C.S. 302.
41 La Cie des Chars Urbains de Montreal v. Les Commissaires du Havre do
Montreal, (1915), 24 B.R. 503.
42 See for example, Corporation du Canton de Stanstead v. MacPherson, [1949]
B.R. 449, at p. 452.
4 3 Harvey v. Dominion Textile Co., (1917-19), 59 S.C.R. 508; La Muniaipalit6
de la Paroisse do Saint-Hubert v. David, (1919), R.L. n.s. 413; Alain V. Cit6 do
Ldvis, (1930), 68 C.S. 314; Cantin v. Martineau, [1960] C.S. 154.
4 4 Supra, n. 25.
45 Ibid., at p. 159.
No. 1]
NOTES
body is deemed to accept on behalf of the public those lands which
have been dedicated, no other decision relating to this problem having
been rendered. However, regardless of which corporate entity will
be said to have accepted the dedication, no formal means of accept-
ance will be required and free use of the property by the public
will constitute sufficient acceptance. 46
There will be a problem concerning the applicability of the
common law rules of dedication where statutes setting forth particu-
lar enactments regulating the express or implied cession of land
by its owner to the public are in effect. Examples of this type of
statutory provision are to be found in the Charter of the City of
Montreal,47 and in the Cities and Towns Act.45 When will the statute
prevent the operation of common law dedication? At common law
the failure of a public authority to fully comply with the statutory
requirements for dedication did not preclude that authority from
contending successfully that the common law rules had operated and
hence the land was then public. It was, therefore, held that unless
the very terms of the statute excluded the common law rules, then
those rules continued to apply and the statute merely created an
alternate method of bringing private property into the public do-
main.40 No Quebec decision has specifically dealt with the foregoing
question, but it is submitted that Quebec courts, if faced with the
problem of reconciling common law dedication and statutory dedica-
tion, would follow the reasoning of the common law jurists, the rules
of statutory interpretation of Quebec law being similar to those of
the common law. One may, therefore, conclude that common law
dedication will not apply only where it is expressly excluded, or
where by necessary implication it can be shown that the enactment
of the statute was intended to operate as a complete replacement of
the common law rules.
Where a party invokes dedication by reason of some statute, then
a court will rule that statutory dedication has occurred only where
each and every formality of the statute has been observed. The
slightest deviation from the requirements of the invoked legislation
will cause the absolute nullity of the dedication. 0 However, it is
submitted that a null statutory dedication should not preclude the
4OChilds v. La Citg de Montrial, (1890), 13 L.N. 355.
47 Supra, n. 3.
48 Supra, n. 4.
49A similar view was taken by the Court in: Pedlow v. The Corporation of
the Town of Renfrew, (1900), 31 O.R. 499. American decisions also support this
position, as seen in: Smith V. City of Hollister, (1958), 238 S.W. 2d. 457.
0 Williams v. The City of Montreal, (1921), 59 C.S. 354.
McGILL LAW JOURNAL
[Vol. 15
court from ruling that the dedication is valid by the common law
rules, if those rules continue to operate.
There are numerous practical consequences which arise from
the admissibility of the doctrine of dedication into Quebec law. For
example, if a person were to fall because of icy pavement and then
sue the supposed owner of the land for a large sum, the owner who
is insufficiently insured could try to escape liability on the grounds
that he was not the proprietor of the pathway, the road being a
public passage to which he had lost title by public dedication and
whose maintenance was the responsibility of the municipality. A
second possible situation exists where a person parks his car on a
lot, only to find that it has been damaged by ice which has fallen
from the roof of a neighbouring building. The owner of the car will
be unable to recover if he had been at fault by trespassing upon the
land, and had parked there without permission, but he may attempt
to show that he had parked on a lot which had become public property
by the rules of dedication, and that he therefore had a right to be
present thereon. 1 Finally, one who has a paved strip in front of
his building may be unable to claim indemnification from a govern-
ment authority which decides to widen a road, and then incorporates
that paved strip or the land on which it is situated into the new road.
The government may be able to successfully contend that the owner
had had the intention to dedicate that strip, and that the public had
used it. The public authority may have little difficulty in showing
that the presence of that strip was not necessary for the conducting
of the commercial activities of the building, or to serve as an approach
to the building, and hence the pavement had been built solely to
benefit the public. Thus, the public authority will attempt to reduce
expropriation costs by a careful reliance on the doctrine of dedica-
tion. This is not a far-fetched possibility: expropriation costs have
become so prohibitive that government will soon find itself com-
pelled to seek opportunities to obtain land gratuitously, or to build
arguments which force proprietors to settle for inadequate compen-
sation for their land, rather than engage in lengthy litigation and
risk a complete loss of their case.
Proprietors should not rely upon the fact that in the past the
courts have been loath to freely apply the doctrine of dedication; the
law is presently being interpreted by judges who are becoming
more and more concerned with the public need, and are less bent
upon protecting the rights of a few individual proprietors. As has
been demonstrated, the decision that dedication has occurred is pri-
51 Bouliaite v. Le Siminaire do Quebec, [1960] C.S. 167.
No. 1]
NOTES
marily the result of an evaluation of facts; therefore, the personal
biases of a judge are apt to have a greater influence upon the result
of the -litigation then if that result was to be derived from a strict
application of absolute, clear, and unequivocal principles of law.
It is easier to appeal a judgment which misinterprets or misapplies
law than it is to appeal a ruling on pure questions of fact, these
matters of fact being generally left to the appreciation of the lower
court judge. Since the acts of the proprietor constitute one of the
determining factors in establishing the intention to dedicate, the
proprietor should periodically interrupt public use of his land in
order to display his lack of animus dedicandi. He should also erect
signs and take such other measures as are necessary or appropriate
to inform the public that they are on private property. He should
indicate that he is merely tolerating the presence of the public, and
where possible, as in the case of shopping-centre parking lots, the
owner should close the facilities to the public during non-business
hours. The foregoing measures, it is submitted, will serve to protect
the title of the owner from loss due to the effect of public dedication,
regardless of the period of time the public has used the property,
because the owner has committed acts which are unequivocally indica-
tive of his intention to retain his private rights.52
Simon SCHWARTZ*
52 This principle is illustrated in: McGinnis v. LUtourneau, (1891), M.L.R. 7
C.S. 278.
* B.C.L. (McGill).
