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HomeMy WebLinkAboutWD-50-98 . i THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON x~~!5t~'X~::s[~~x REPORT Date: OCTOBER 5, 1998 File #-TOo bE: Res.#GPA ~5f7 -'7Y By-Law # Meeting: COUNCIL Report #: WD-50-98 File #: C.08.12.01 Subject: STATUS OF THE "MAST ROAD" Recommendations: It is respectfully recommended to Council the following: 1. THAT Report WD-50-98 be received for information; and 2. THAT Mr. and Mrs. Stapleton and Joan Anderson be provided with a copy of Report WD-50-98. REPORT 1.0 ATTACHMENTS No.1: Correspondence from Bill and Shirley Stapleton 2.0 BACKGROUND 2.1 The matter of ownership of the property known as "Mast Road" in Lots 11 and 12, Concession 7, former Clarke Township has been an issue due to the fact that the lands are shown on maps and legal documents as a "travelled road" and there is a history of public use. Correspondence dated September 4, 1998 from Bill and Shirley Stapleton (Attachment No.1) was considered by Council at its meeting of September 14,1998. In summary, Mr. and Mrs. Stapleton claim the property known as Mast Road is privately owned by them. At the same meeting on September 14, 1998, a delegation by Joan Anderson was heard by Council expressing concern regarding ownership of the subject lands and that the owners RECVCLED I':t'\ PAP1ER PAPER '<:!::1 RECYCLE THIS IS PRINTED ON RECVCLED PAPER 1 I U 1 REPORT NO.: WD-50-98 PAGE 2 had recently restricted access and use of the road. She requested that the issue be settled and that Mast Road be declared a public access road so that all residents may again enjoy the beauty of nature and freedom to explore the Ganaraska Forest. Council, at its meeting of September 14, 1998, passed Resolution C-677-98, as follows: "THAT the correspondence dated September 4, 1998 from Mr. and Mrs. Bill Stapleton regarding the travelled road between Lots 11 and 12, Concession 8, former Township of Clarke known as the "Mast Road", be received; THAT the correspondence be referred to the Director of Public Works for preparation of a report, including the legal opinion previously received on this matter, to be submitted to the General Purpose and Administration Committee; and THAT Mr. and Mrs. Stapleton and Joan Anderson be advised of Council's decision." 3.0 REVIEW AND COMMENT Status of the "Mast Road" In 1995, Dennis Hefferon, Solicitor, was requested to provide a legal opinion regarding the status of the lands knows as "Mast Road". Mr. Hefferon was specifically requested to examine the question whether the travelled road described as the "Mast Road" in Lots 11 and 12, Concession 8, former Township of Clarke is a public highway, title to which is vested in the Municipality by reason of it having been dedicated as such by the owner of it at some time in the past and accepted as such by members of the public or by the Municipality on their behalf. Mr. Hefferon's opinion, as stated in his response dated March 8, 1995, is as follows: "In my opinion, for the reasons expressed in detail below, no portion of the travelled road in 11 LJ 2 REPORT NO.: WD-50-98 PAGE 3 question, whether it is located within Lot 11 or Lot 12, Concession 8, as a matter oflaw has been dedicated to the public as a public highway and accepted as such, either by members of the public or by the Municipality acting on their behalf. No portion of it is an original road allowance or is it shown on a registered plan of subdivision. Therefore, in my opinion all portions of the travelled road in question are located on private property. Portions of the southerly section appear to be subject to prescriptive easements in favour of certain of the abutting owners who have constructed houses." Request for Signs The subject "Mast Road" is private property, therefore placement of signs would be at the discretion of the owner. 4.0 CONCLUSION The Solicitors' opinion clearly states that the subject travelled road known as "Mast Road" is private property. Therefore, the Municipality has no jurisdiction over the lands. If the owners in the area still wish to pursue the matter of access over these lands to and from the Ganaraska Forest, it is suggested that this is a civil matter which should be left to the private property owners concerned to resolve. Respectfully submitted, Reviewed by ~~ Stephen A. Vokes, P. Eng., Director of Public Works JCO*SA V*ce 30/09/98 1 I U 3 REPORT NO.: WD-50-98 PAGE 4 Pc: Mr. & Mrs. Bill Stapleton 4352 Concession Road 8 Kendal, ON LOB I EO Joan Anderson 4398 Concession Road 8 R.R. # I Kendal, ON LOA I EO 1 I LJ 4 ~ ,-, I , COUNCIL DIRECTION Hr. S, Mrs. Bill 4352 Concession Kendal, OntaL'io (905) 983-8221 Sept 4, 1998 0-10 tS~nl!~'riON ' !~~i~.~..._.'""~ ; I !\C'lf C\I, ':.../--mrt"T-~;,f; I.. ~~~~~I~~~"~ i C :s Te- l-- i Clerks office Municipality of Clarington 40 Temperance Street Bowmanville, Ontario LIC 3A6 . . ~... ~.~._.' .....~.L'IOr". i Attention: ~....._...,..,.. ~'l,....._........,.~........,....t ~'_"."".""H' . ~.... ....,.....,....,_...-....... j""" .-:......47 ~._....~' t:ll~...{[iI..,:~...~....,... . Joan Anderson and others and Mr. and Mrs. Willi~l"\UnJ,. Stapleton and the Travelled Road between Lots 11 and 12 ;..Corrc~-s'S;f.6T1'~fF;.';~~... Cl arke, in C 1 aringt on known as the "Mas t Road" and a 1 so the forced fire road branching therefrom to the Ganara~ka Mayor Hamre and Members of Council Re: In response to a letter we received on Aug 30. 1998 from Joan Anderson, James and Laura Savage, Marion Hamilton, Nellie Martin, Joyce Boudreau, Ray and Karen Christopher and a second letter with affidavits dated Sept. 1, 1998 from W. Kay Lycett, LLB.,Q.C. we would like to submit the following: We have consulted the tuwn representatives on numerous occaSSlons with regard to ownership and controlled access to the above mentioned lands. You will find documentation in the municipality's ?ub:j Works' Dept. files that, in the opinion of not one but two of ~'_l-le tOhffl solicitors over tr-~e ye2,rs, t1-.LF.: p:rC)~>t=. t.y iJ-~ qlJest.iorl i:-:~ p{i\i;.~!- and therefore :i.S not a mattE::: :0:: the :Tlunicipality. ;:::-:a::",'>.:'~~ of ~ette::s in reference: 1) dated Jul 25,1988 from David J.D. Sims to W.A. Evans, Esq. with copies to D. Hamre, D. Patterson, and H. Elliott 2) dated Mar 14, 1995 to William Stapleton from Walte~ h. Evans. P. Eng. with caples to Mayor D. nalTl-~'-e and \,,~. """ St.oc}~well. C.A.O. With regard to the historic Mast Road. It has over the years evolved into a year round creek which Mr. Dennis Hefferon observed when he did his examination of the above mentioned properties ir: 1995. With this natural ecological development it has made the old Mast Road and surrounding area environment.ally sensitive which subsequently has resulted in the Ganaraska Conservation Authority closing this portion of land. There are already two designated accesses to the Gana::aska Forest approximately ~/4 ~ile from ou:: pi~OpPLty and UH': Gana::a.ska COLservation Authority has str-ongly indicated to us that they are not interested in another. The twr existing designated entrances prc"Jj.cle ampl f' a, cess for al:yone in tliis d~ea to enter the Ganaraska Forest without having to cross our private property. 1 I U 5 ATTACHMENT NO.: 1 REPORT NO.: WD-50-98 \ In con;ection to the affidavits submitted stating there has been ~o incumbrance on the above stated lands; we have on file a letter from BarlY A. Walters,LLB representing Mr. & Mrs. Harland Elliott to Mr. & Mrs. Gary Martin dated Oct 6, 1992 stating and I quote "It is NOT a public road and my clients have every right to stop it up by means of a gate or such other method as they may choose". This is a total contradiction to the affidavits signed by Mr. & Mrs. Elliott on Aug 26, 1998. There was some confusion as to the ownership of Part 1 plan 10R- 3368, however Mr. G. Doug Coggan, ontario Land Surveyor was able to clarify the issue in discussions with Merrill Brown and Charles Riley. Every effort has been made over the years by both the former owners Mr. & Mrs. Jack Stapleton and ourselves to restrict/control who crossed our property. Very visibl e NO TRESPASSING signs have always and continue to be posted on the property as well as gates at both ends of what is referred to as the travelled road. We have, over the years, given permission to select individuals t.o cross our property to access the Ganaraska Forest; but -these sank~ individuals now seem to think it's their RIGHT instead of a privilege to use our property. We currently have a land use agreement with the Ganaraska Snowmobile Club, on a year by year basis, for approximately 4 months of the year to use the easterly fork of Part 4 plan lOR-3923 and Part 1 plan 10R-3368 as part of the groomed snowmobile trai: system. This portion of the trail system connects snowmobi:~~s from Kendal and the surrounding area to the rest of the groomed t~ai~s whj.ch tlle oth~l t.wo Ganaraska Conservati,on A~_lth()L~ty de.s-,:.9~-lated accp s:-:s 3~-e :-:..8t ~;eant. for. Dl~rin.g t:-~~ s:-~u\,,:~-\c:~}li1;~. season we rernove 01Jr gates fOL sDowmobi' ers, r-;oweve'_ a::'-ej- tl'f-: snowmobile season the gates are reinstalled. It should be noted that the Ganaraska Snowmobile Club assumes all liability for snowmobilers crossing our property. In closing we believe. as we've been advised so many times by the repiE::sentatives of the Mun,icipality of Cla:cingt.on, that this is our p:.-ivate p]'operty and t.he control of who does and does not haVe:: access to it 15 totally our choice. ~~;?pllY . ~hirley Stapleton 1 I U 6