Easements and rights of way

Most of the district's canals do not sit on land the district owns. They sit on rights of way: rights to build, operate and maintain a canal across someone else's land, granted or taken decades ago and held by the district ever since. The district's question for this project, whether it holds its canals securely, is really a question about easements. What rights does each instrument give, over what strip, for what purposes? Does it include the maintenance road beside the canal and the spoil banks? Has any of it been lost, moved or left behind when the canal was realigned? This lesson covers the law and the survey practice of easements and rights of way.

What an easement is

An easement is a right to use another person's land for a particular purpose, or to stop the owner from using it in a particular way. The land that bears the easement is the servient land; where the easement benefits other land, that land is the dominant land, and the easement is said to be appurtenant to it and passes with it on a sale. A classic example is a right of way across a neighbour's field to reach a public road. The owner of the servient land keeps the fee simple and may use the land in any way that does not interfere unreasonably with the easement. The easement holder may use the land only for the purpose and within the limits the easement allows.

At common law an easement needed both dominant and servient land, so a right held by a utility for a pipeline, with no dominant land, could not be a true easement. Canadian provinces solved this by statute. Alberta's Land Titles Act allows utility rights of way to be granted to pipeline, power, telecommunications, irrigation and other utility operators and registered against the title, without any dominant land, and the Irrigation Districts Act gives irrigation districts powers to acquire rights of way for their works, by agreement or, if necessary, by expropriation. A right of way can also be protected by a caveat registered against the title, and many of the district's older agreements were caveated rather than registered by plan.

How easements are created

Easements can be created in several ways. The most secure is an express grant: a written instrument, signed by the owner of the servient land, that describes the easement, its purpose and its location, often by reference to a plan. An easement may also be expressly reserved by an owner who sells part of their land and keeps a right over the part sold. Easements can arise by implication, when land is divided and the circumstances show that a right of use was intended, and by necessity, when a divided parcel would otherwise have no access at all. Some easements arise by statute, for example under a utility's or an irrigation district's powers.

Alberta's 2022 property rights amendments also bar the acquisition of easements by long use against registered owners: a right of way used for decades without an agreement does not become an easement through that use alone. For the district, any canal reach that rests only on long, unchallenged use is not protected by that use, and the board will need to secure it by agreement, registration or, as a last resort, expropriation.

Location, width and scope

The surveyor's main contribution to an easement is its location. Some instruments describe a strip precisely: so many metres or feet on each side of a centreline shown on a plan, with the centreline tied to section corners. Others describe it vaguely: a right of way for the canal as now constructed, or a strip sufficient for the ditch and its banks. A precise description is retraced like any other boundary. A vague one is located by the evidence of what was built and used when the easement was granted, because that is what the parties intended. In both cases the surveyor shows the strip on a plan, with its widths, its tie to the parcel boundaries, and its area within each parcel.

Width matters for more than area. The district needs room for the canal itself, the banks, the maintenance road and the spoil from cleaning. An easement for the canal may or may not include a road, and courts have sometimes held that an easement includes the secondary rights reasonably needed to maintain the primary one, such as access to clean the ditch, but not more. Scope also limits use: an easement granted for an irrigation canal may not allow the district to lay a fibre-optic cable or let the public walk the banks without the landowner's consent. Each instrument must be read for its own terms. Where an instrument is silent or ambiguous, courts look at the circumstances when it was granted: what the canal looked like, how it was maintained, and what both parties understood. That history is part of the surveyor's research, and photographs of the canal from the 1950s can be as useful as the instrument itself in showing how wide the working strip actually was.

Measuring Lateral 7

Lateral 7's right of way was granted in 1952 by instruments that refer to a plan showing a centreline and a strip 15 m on each side, widened to 20 m on each side for 330 m around a check structure. Theo computes the strip's length and area from the centreline Grant has retraced, and splits it among the three parcels it crosses.

import math
# Lateral 7 right of way: a strip described by an axis line and a width on each side (m)
axis = [(0.0, 0.0), (310.0, 42.0), (655.0, 41.0), (980.0, -38.0), (1290.0, -40.0)]
widths = [(15.0, 15.0), (15.0, 15.0), (20.0, 20.0), (15.0, 15.0)]   # (left, right) per segment; wider at the check
# Parcel boundaries crossed by the strip, as chainages along the axis (m)
parcels = [("Haugen", 0.0, 402.6), ("Kovac", 402.6, 870.0), ("Sato", 870.0, 1302.0)]

seg_len = [math.dist(a, b) for a, b in zip(axis, axis[1:])]
chain = [0.0]
for L in seg_len: chain.append(chain[-1] + L)
print("segment  length (m)  width (m)  area (m2)")
total = 0.0
for i, (L, (l, r)) in enumerate(zip(seg_len, widths)):
    total += L * (l + r)
    print(f"  {i+1}      {L:8.2f}    {l+r:5.1f}   {L*(l+r):9.1f}")
print(f"total length {chain[-1]:.2f} m, area about {total/10000:.4f} ha (bends not trimmed)")

def area_in(c1, c2):
    a = 0.0
    for i, (L, (l, r)) in enumerate(zip(seg_len, widths)):
        lo, hi = max(c1, chain[i]), min(c2, chain[i + 1])
        if hi > lo: a += (hi - lo) * (l + r)
    return a
print("parcel    chainage from-to (m)   right of way (ha)")
for name, c1, c2 in parcels:
    c2 = min(c2, chain[-1])
    print(f"{name:8s}  {c1:7.1f} - {c2:7.1f}       {area_in(c1, c2)/10000:.4f}")

segment  length (m)  width (m)  area (m2)
  1        312.83     30.0      9385.0
  2        345.00     30.0     10350.0
  3        334.46     40.0     13378.5
  4        310.01     30.0      9300.2
total length 1302.30 m, area about 4.2414 ha (bends not trimmed)
parcel    chainage from-to (m)   right of way (ha)
Haugen        0.0 -   402.6       1.2078
Kovac       402.6 -   870.0       1.6144
Sato        870.0 -  1302.0       1.4183

The strip is about 1.30 km long and about 4.24 ha in area, of which about 1.21 ha crosses the Haugen parcel, 1.61 ha the Kovac parcel and 1.42 ha the Sato parcel. The areas are approximate, because the strip is not trimmed at the bends; a plan for registration or recording would compute each part exactly from the strip limits. What matters for the district is that the retraced centreline matches the canal as built: if the canal had been moved, the right of way would stay where the instrument put it, and the district would be operating part of the canal on land it has no right to use.

Writing the description

A right of way that the district wants to register needs a description the Land Titles Office will accept. For a strip of defined width, that is usually a right-of-way plan prepared and signed by an Alberta Land Surveyor, showing the strip's limits, its ties to the quarter section boundaries, the monuments set or found, and the area within each title. The utility right of way document then refers to the plan by number. A description in words, such as a strip 30 m wide centred on the canal as it existed in 1952, is hard to retrace and may not be accepted for registration; a plan removes the ambiguity, because it fixes the strip by survey at the time it is granted. Theo's database stores each right of way with its plan number, its instrument number and its area by title, so the district can see at a glance which reaches are fully secured.

Encroachments and crossings

An easement also gives the district a duty to manage what happens inside it. Farmers want to cross canals with access roads, pipes and power lines; neighbours build sheds and fences close to the banks; utilities want to lay cables along the strip. The district handles these with crossing agreements, which set out where and how a crossing may be built, who maintains it and who pays if it damages the canal. Inside its strip, the district must also respect the landowner's remaining rights, because the land is still theirs. During the field work, Grant's crew records every structure within 10 m of each strip limit, so that the district's lawyer can sort encroachments that must be removed from crossings that only need a written agreement. Of the 41 structures recorded in the first season, most are small culverts and fences, three are sheds and one is part of a house deck, which is a conversation for the board, not the field crew.

When canals move

Canals do move. A reach is lined, realigned around a farmyard, or replaced with a pipeline, and the old ditch is filled in. Each change raises the question of whether the easement moved too. In general it does not move by itself: an easement fixed by an instrument stays where the instrument put it, and using a new location requires a new grant or an agreed relocation, properly documented. An easement is not lost simply because it is not used for a time, but it can be extinguished by a release, by merger when the same person comes to own both the easement and the land, by the expropriation or acquisition of the land, or, in some jurisdictions and circumstances, by clear abandonment. For the district, every reach where the canal has moved since its right of way was granted is a reach where the paper and the ground may not match.

Grant's crew finds three such reaches. On one, the canal was moved 40 m east in 1979 to clear a new farmyard, and the farmer signed a letter agreeing, but nothing was registered. On another, a 1990s pipeline replaced the open ditch on the same line, within the registered strip. On the third, the old right of way plan shows the canal running through what is now a gravel pit. Ruth's report recommends a new registered utility right of way for the first reach, a confirmation for the second, and research into the third before anyone decides whether the district still holds a right there.