Q: I own land in British Columbia on both sides of a railway track. I would like a road crossing across the track so that I can easily access my land. There once was such a crossing, say some of the old-timers in the area. The railway refuses a crossing. What are a farmer’s rights in such a situation?
A: Section 102 of the Canada Transportation Act provides that “if an owner’s land is divided as a result of the construction of a railway line, the railway company shall, at the owner’s request, construct a suitable crossing for the owner’s enjoyment of the land.”
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Section 103 of the act provides that if the railway and the landowner do not agree on the construction of a crossing across the track, “the agency, on the application of the owner, may order the company to construct a suitable crossing if the agency considers it necessary for the owner’s enjoyment of the land.”
The agency referred to is the Canadian Transportation Agency. Unless both sides agree to an extension, the agency must rule on a formal request for a crossing within 120 days of receipt. The agency can be contacted in Ottawa at 888-222-2592. At the website www.cta-otc.gc.ca, you can find the publication Guide to Private (Farm) Crossings of Railways and also rulings that have dealt with farm crossings. Search under “rulings” to find farm crossing situations that have been dealt with in the last 15 years.
An agency spokesperson told me that based on past rulings, the agency has generally ruled that if a rail line divides a farmer’s land, she is entitled to a crossing built at the railway’s expense. However, if a farmer subsequently acquires land on the other side of the track, the agency will often rule in her favour, but she will be required to pay the cost of building the crossing. Each situation is considered on a case-by-case basis.
The Canadian Transportation Agency deals with national rail lines such as CN and CP. Of course, there are also provincial lines. In B.C., from where you write, the provincial Railway Act provides that “a company must make crossings for persons across whose land the railway is carried, convenient and proper for the crossing of the railway for farm purposes.”
B.C.’s act also says the provincial minister responsible for railways can order a railway company to provide a suitable crossing if the minister considers it necessary. The minister can specify terms and conditions under which the crossing will be built and maintained. There is also legislation in other provinces dealing with various short lines.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
