SUPREME COURT OF NOVA SCOTIA Citation: Burgoyne v. Hutton...

SUPREME COURT OF NOVA SCOTIA Citation: Burgoyne v. Hutton, 2016 NSSC 60

Date: 2016-03-17 Docket: BWT No.’s 419430 and 419907

Registry: Bridgewater

Between:

Daniel Burgoyne of Oakland, Lunenburg County, Nova Scotia and Elizabeth

Burgoyne of Oakland, Lunenburg County, Nova Scotia Applicants

and

Elizabeth Hutton of Oakland, Lunenburg County, Nova Scotia and 3291969 Nova Scotia Limited, a body Corporate in and for the Province of Nova Scotia

[successor to Hutton Sales Inc., a body Corporate in and for the Province of Ontario]

Respondents And Between: Elizabeth Hutton and 3291969 Nova Scotia Limited, a body Corporate, [successor

to Hutton Sales Inc., a body Corporate] Applicants

and

Daniel Burgoyne and Elizabeth Burgoyne

Respondents

LIBRARY HEADING

Judge: The Honourable Justice Pierre L. Muise Heard: September 14, 15 and 16, 2015, in Bridgewater, Nova Scotia Final Written Submissions:

October 15, 2015

Summary:

In 2002, Ms. Hutton’s Company, purchased the Hutton Sales Lot. In 2012, Ms. Hutton purchased the Homestead Lot immediately to the west of it. The Homestead Lot benefitted from 2 express rights-of-way to Highway 3 over the Burgoyne Lot to the north, one of which was over the existing Burgoyne Driveway. The Huttons started a haskap farm on the Hutton Sales Lot and commenced accessing it from the Burgoyne Driveway, through the Homestead Lot. The Burgoynes objected to such use on the basis that it was impermissible use of the express ROW’s. The Huttons took the position they had a right to continue to the Hutton Sales Lot once they were on the Homestead Lot,and that the Hutton Sales Lot itself benefitted from a right-of-way over the Burgoyne Driveway based on necessity, implication and/or user for the requisite period of time. The proceedings also raised a dispute over what use could be made of the express ROW’s for the benefit of the Homestead Lot.

Issues:

1. What, if any, right-of-way exists over the Burgoyne Lot for the benefit of the Hutton Sales Lot by way of: (a) necessity; (b) an implied easement from unity of title; and/or, (c) prescription under the Limitation of Actions Act or the doctrine of lost modern grant?

2. What is the scope of the express rights-of-way over the Burgoyne Lot for the benefit of the Homestead Lot?

3. Have the Huttons traversed or used the Burgoyne Lot in a way which was not permitted, taking into consideration the no retracement principle in Miller v. Tipling?

4. What, if any, damages should be awarded for such impermissible use?

5. What, if any, injunctive relief should be granted?

Result:

1. The Huttons failed to establish any ROW over the Burgoyne Lot for the benefit of the Hutton Sales Lot.

2. The express ROW’s could be used for the benefit of the Homestead Lot only. That included commercial use, but did not extend to access by general members of the public, as that nature of use was not intended at the time of the reservation of the ROW’s. The use was intended to be of a private nature.

3. When persons and vehicles first accessed the Homestead Lot for genuine purposes, such as conducting work thereon, they were entitled to continue on to the Hutton Sales Lot without retracing their steps out the Burgoyne Driveway and around to the access road at the southern end of the Hutton Sales Lot. When the real purpose for using the Driveway was to access the Hutton Sales Lot, that use was impermissible and amounted to trespass and nuisance.

4. The Huttons were ordered to pay the Burgoynes $2,500 in general damages.

5. Injunctions were granted restraining the Huttons from: using the express rights-of-way over the Burgoyne Lot for the benefit of the Hutton Sales Lot or of any other lands apart from the Homestead Lot; and, inviting, encouraging or condoning use of the expressed rights-of-way over the Burgoyne Lot, by general members of the public, to access the Homestead Lot.

SUPREME COURT OF NOVA SCOTIA Citation: Burgoyne v. Hutton, 2016 NSSC 60

Date: 2016-03-17 Docket: BWT No.’s 419430 and 419907

Registry: Bridgewater

Between:

Daniel Burgoyne of Oakland, Lunenburg County, Nova Scotia and Elizabeth

Burgoyne of Oakland, Lunenburg County, Nova Scotia Applicants

and

Elizabeth Hutton of Oakland, Lunenburg County, Nova Scotia and 3291969 Nova Scotia Limited, a body Corporate in and for the Province of Nova Scotia

[successor to Hutton Sales Inc., a body Corporate in and for the Province of Ontario]

Respondents And Between: Elizabeth Hutton and 3291969 Nova Scotia Limited, a body Corporate, [successor

to Hutton Sales Inc., a body Corporate] Applicants

and

Daniel Burgoyne and Elizabeth Burgoyne

Respondents

Judge: The Honourable Justice Pierre L. Muise

Heard: September 14, 15 and 16, 2015, in Bridgewater, Nova Scotia

Final Written Submissions:

October 15, 2015

Counsel:

Michelle Kelly, for the Applicants/Respondents, Daniel

Burgoyne and Elizabeth Burgoyne Allen C. Fownes, for the Respondents/Applicants Elizabeth

Hutton and 3291969 Nova Scotia Limited [successor to Hutton Sales Inc.]

INTRODUCTION

[1] The dispute between the parties revolves around right-of-way easements over

the lands of Daniel Burgoyne and Elizabeth Burgoyne.

[2] Elizabeth Hutton is the sole shareholder and officer of 3291969 Nova Scotia

Limited, formerly Hutton Sales Inc., (the “Company”).

[3] Unless otherwise indicated, expressly or by the context, a reference herein to

the “Burgoynes” is a reference to Daniel Burgoyne and Elizabeth Burgoyne,

and a reference to the “Huttons” is a reference to Elizabeth Hutton and the

Company.

[4] The lands of the Company comprise a strip about 220 feet wide and

approximately 15 acres in area running generally north/south between

Highway 3 and the high water mark of the shore of Mahone Bay, which high

water mark is just south of the Oakland Road in Oakland, Lunenburg County.

They were acquired by the Company in 2002. They have been referred to in

this proceeding as, among other things, the Bruhm Farm and the Olsen Lot.

[5] They were formerly the eastern ½ of a 30 acre lot which had been in the

Burgoyne Family since in or before 1782. The 30 acre lot was split in two in

1807 when the eastern ½ was quit claimed by members of the Burgoyne

family to other members of the Burgoyne family. The eastern 1/2, though it

was also subdivided, always remained in the hands of Burgoyne family or

relatives. All of the lots making up the eastern ½ were purchased by Hutton

Sales in 2002. I will refer to them as the Hutton Sales Lot or the Olsen Lot.

[6] The western ½ of that 30 acre lot was also subdivided over the years amongst

Burgoyne family or relatives. It is about 230 feet wide and, prior to

subdivision also ran from the Highway 3 to the shore of Mahone Bay.

[7] The lands of the Burgoynes are the northerly most subdivided lot of the

western ½ and include about 4.7 acres. They acquired those lands from

Daniel’s father, Harold Burgoyne, in 1986. It was part of a larger lot owned by

Harold. I will refer to these lands as the Burgoyne Lot.

[8] Harold kept his remaining lands. However, they did not reach the shore of

Mahone Bay, nor even the Oakland Road, as a lot had already been conveyed

out of the original western lot at the southern-most tip. The deed expressly

reserved to Harold a right-of-way 15 feet wide over the existing driveway to

his homestead, as well as a right-of-way 66 feet wide, from Highway 3

running along and following the boundary line with the Bruhm Farm to the

east.

[9] In April of 2012, Elizabeth Hutton acquired the remaining homestead lands of

Harold Burgoyne which, by then, had become owned by Harold’s widow,

Irene Burgoyne, as life tenant, and Harold’s son, Gary Burgoyne, as

remainderman. I will refer to these lands as the Homestead Lot.

[10] Ms. Hutton, through the Company, commenced developing the Hutton Sales

Lot into a haskap farm. She brought equipment, supplies and workers there

using the driveway over the Burgoyne Lot leading to the residence on the

Homestead Lot. At that point, the Burgoynes objected to the Huttons using the

driveway for that purpose. They confronted Ms. Hutton about it and stopped

people entering to question them about the reason for their entry. They also

had their then lawyer, first discuss the matter with the lawyer for Ms. Hutton

and the Company, then send a form of Protection of Property Act notice to

Ms. Hutton.

[11] On September 11, 2013, the Burgoynes filed a notice of application in court

for a declaration that the right-of-way easement over their lands: “is restricted

in use to that of a private road-way only for the limited purpose of Elizabeth

Hutton accessing only her home, the benefitted property”; does not permit

commercial use; does not serve the Company; does not entitle the Respondents

to access the Hutton Sales Lot over it; and, the Respondents’ excessive and

commercial use amounts to trespass. The Notice of Application further seeks:

an injunction prohibiting further trespass and restraining use of the right-of-

way to access the Hutton Sales Lot; damages; and, costs.

[12] On September 24, 2013, Ms. Hutton and the Company filed a notice

contesting the application on the grounds that persons lawfully entering on the

Homestead Lot, pursuant to the two express rights-of-way reserved in the

1986 deed from Harold Burgoyne to the Burgoynes, were entitled to proceed

to the Hutton Sales Lot without having to retrace their steps and exit the

driveway over the Burgoyne Lot.

[13] On September 26, 2013, they filed their own Notice of Application for an

order granting them a right-of-way over the Burgoyne Lot on the grounds

which included those advanced in the Notice of Contest they had filed, as well

as on the grounds of: historical use over that existing driveway to access what

was then known as the Olsen Lot and the effect of the Limitation of Actions

Act, R.S.N.S. 1989, c. 258; the doctrine of lost modern grant; and, the

existence of a right of way to the Olsen Lot by necessity.

[14] The Burgoynes responded by filing a notice of contest on October 11, 2013

in which they raised the same grounds advanced in their Notice of

Application, as well as that: they were not aware of any historical use which

would have created a right-of-way to the Hutton Sales Lot by way of adverse

possession, operation of the Limitation of Actions Act or the doctrine of lost

modern grant; any such use was occasional and with permission; access to the

Hutton Sales Lot was off the Oakland Road at the southern end of the Lot,

such that there would be no right-of-way by necessity; and, Ms. Hutton and

the Company have been using the right-of-way to the Homestead Lot in a

colourable attempt to reach the Hutton Sales Lot.

[15] With the consent of the parties, an order was issued September 18, 2014 that

the Applications would be joined and heard together.

[16] They were heard by me on September 14, 15, 16 and 17, 2015.

[17] At the commencement of the hearing it was agreed that the pleadings would

be amended to change the reference to Hutton Sales Inc. to a reference to its

successor, 3291969 Nova Scotia Limited.

[18] It was also agreed that the Huttons could amend their pleadings to claim

nuisance and/or harassment, and damages flowing therefrom. However, the

hearing in relation to those claims would take place at a later date, after the

outcome of the hearing on the issues already pled. Therefore, the hearing

which commenced September 14, 2015 was to deal with the issue of the

existence and/or scope of rights-of-way for the benefit of the properties owned

by the Huttons, along with issues of whether or not the Huttons had committed

trespass and, if so, the appropriate remedy or remedies for any such trespass.

[19] The parties agreed that there was no express grant of right-of-way over the

Burgoyne Lot for the benefit of the Hutton Sales Lot.

ISSUES

[20] Therefore, the issues to be determined are those which follow.

1. What, if any, right-of-way exists over the Burgoyne Lot for the

benefit of the Hutton Sales Lot by way of: (a) necessity; (b) an

implied easement from unity of title; and/or, (c) prescription under the

Limitation of Actions Act or the doctrine of lost modern grant?

2. What is the scope of the express rights-of-way over the Burgoyne Lot

for the benefit of the Homestead Lot?

3. Have the Huttons traversed or used the Burgoyne Lot in a way which

was not permitted, taking into consideration the no retracement

principle in Miller v. Tipling?

4. What, if any, damages should be awarded for such impermissible use?

5. What, if any, injunctive relief should be granted?

LAW AND ANALYSIS

ISSUE 1(a) WHAT, IF ANY, RIGHT-OF-WAY EXISTS OVER THE BURGOYNE LOT, FOR THE BENEFIT OF THE HUTTON SALES LOT, BY WAY OF NECESSITY?

[21] It was conceded that the existence of a swamp at the north end of the Hutton

Sales Lot, near Highway 3, makes it impracticable to access Highway 3 from

that end.

[22] The Huttons argue that the access route to the Oakland Road is not safe

because it is a severe blind turn with a narrow angle.

[23] The Court in Shea v. Bowser, 2013 NSCA 18, at paragraphs 42 and 43, and

48 and 49, stated:

[42] Justice Nathanson then had to consider what was meant by “necessity” and whether the option of water access through Big Mushamush Lake was sufficient to defeat the plaintiff’s claim to a right-of-way. He goes on to say:

It would seem to appear from the foregoing statements quoted from various texts that a fundamental requirement of a right of way of necessity is the existence of absolute inaccessibility giving rise to an absolute necessity for access. In my opinion, that is too broad a statement. It will be noted that the statements quoted from the texts refer to lots which are land-locked. There ought be no doubt that the general statement at the beginning of this paragraph does apply to land-locked lots, but there is reason to believe that it does not necessarily apply to lots which border on or are partly surrounded by water. (p. 7)

[43] Nathanson J. summarized the applicable principles, leading to his finding that the plaintiff had established a right of way of necessity:

The cases which have been cited indicate that the doctrine of right of way of necessity has been continuing to evolve over the years and has evolved to the stage where a number of statements of principle can be added to the traditional conception of the doctrine:

1. The doctrine of right of way of necessity is public policy -- that land should be able to be used and not rendered useless (see Goddard, A Treatise on the Law of Easements, supra, pp. 359- 61; Feoffees of Grammar School in Ipswich v. Proprietors of Jeffreys' Neck Passage, supra; and Hancock v. Henderson, supra).

2. Although there can be no right of way of necessity where there is an alternative inconvenient means of access, the requirement of an absolute necessity or a strict necessity has developed into a rule of practical necessity (see Redman v. Kidwell, supra, and Littlefield v. Hubbard, supra).

3. Water access is not considered to be the same as access over adjacent land (see Harris v. Jervis et al., supra; Michalak et al. v. Patterson et al., supra; Hancock v. Henderson, supra; and William Dahm Reality v. Cardel, supra). That is especially so in cases where the water access is not as of right or would be contrary to law (see Megarry and Wade, The Law of Real Property, supra, at p. 831) where access is not available for transportation of things needed for reasonable use of the land to be accessed (see Feoffees of Grammar School in Ipswich v. Proprietors of Jeffreys' Neck Passage, supra), where the water access does not have transportation facilities for carrying on the ordinary and necessary

activities of life to and from the land (see Cookston v. Box, supra), or where the water is not navigable or usable as a highway for commerce and travel (see Peasley v. State of New York, supra).

In the present case, I find: that, without a right of way of necessity, the lot in question will not be able to be used and will be useless; that this is not a case where there exists an alternative, though inconvenient, means of access; and that water access over Big Mushamush Lake to the lot in question is not by right and, indeed, would probably be contrary to law pursuant to ss. 1(j) and 3 of the Water Act, R.S.N.S. 1989, Ch. 500. (pp. 9- 10)

….

[48] Although he did not review Hirtle and Dobson in the detail I have in these reasons, it is obvious from the above that Rosinski J. was of the opinion that necessity was not established from the facts regardless of whether the correct test is practical or absolute necessity. What comes from these authorities is that the nature and extent of the water access may negate a right-of-way by necessity. Where the water is navigable as a public right, the access will be sufficient to trump a claim of necessity. It is implicit from the application judge’s decision here that he felt that the nature and extent of the water access was sufficient to negate a right-of-way by necessity to the Sheep Pen Lot.

[49] I would also add the appellants gave no evidence of any special circumstance that made the Sheep Pen Lot inaccessible by the ocean despite its navigability. At the appeal hearing there was some discussion that the Sheas might want to sell the Sheep Pen Lot and that access by water only would make it significantly less valuable. Beyond this, no evidence regarding the desired use of the Sheep Pen Lot or how the ocean access would make that use impossible was presented. There is currently no dwelling on the property and there is no evidence there ever has been one. In these circumstances, I am satisfied that the application judge did not err in concluding that the water access available to access the Sheep Pen Lot was sufficient to defeat the claim of necessity.

[24] It is noteworthy that even the availability of access by water may suffice to

defeat a claim of necessity.

[25] In the case at hand, there was evidence regarding the problems with the

access road to the Hutton Sales Lot off of the Oakland Road at the southern

end of the Lot.

[26] Robert Becker, in his report, described it as an old hauling road leaving the

Oakland Road at an acute angle and continuing at a steep grade. While he

described the access across the swamp at the northern and of the lot as being

“nearly impossible”, he described this southern access road as very steep.

[27] Gary Crossland, who cut and removed hay from the Hutton Sales Lot, as

well as the Homestead Lot, and other lots to the west of it, testified that he did

not bring his equipment up that hauling road because it had grown up in

bushes and thus was too narrow for his equipment. In addition, the entrance

was on a sharp turn making it a dangerous spot to get his equipment on the

highway. He described his truck as a 1 ton farm truck upon which he would

transport 10 or more round bales per load.

[28] Ms. Hutton deposed as follows in relation to this access road:

“It is on extremely sharp grade and suffers from severe erosion. Sight lines along the Oakland Road are not sufficient for egress for cars truck or farm equipment as you would run a serious risk of collision with an oncoming car around the blind turn where the driveway enters property.”

[29] However, during her cross examination she acknowledged the following

points. She, herself, had parked at the bottom of the Oakland Road access and

walked up. She has taken a vehicle up the hauling road (though she later

indicated it was her husband). She had work done on the road, including

putting in a retaining wall at the bottom, close to the Oakland Road. The eight

photographs in Exhibit 15 are accurate depictions of the access road, retaining

wall and Oakland Road approaches to the access road. She cuts the grass on

the access road at times with a lawnmower. People have gone up and down the

hauling road with vehicles. For example, Steve Barry went up with an

excavator when he installed a well. Persons have used it to access the property

to cut trees. Jeff Stevens has used it with a tractor and chipper. There has been

wood hauled through it. One person has driven his pickup truck through it to

retrieve firewood. Her husband has driven his pickup truck up it.

[30] Daniel Burgoyne deposed that, prior to Ms. Hutton purchasing the

Homestead Lot, after the Company had purchased the Hutton Sales Lot, he

witnessed vehicles using the Oakland Road access to the Hutton Sales Lot.

[31] The photographs in Exhibit 15 show what, in my view, is an easily

manageable slope or grade to the hauling road. The angle of approach which

permits that manageable slope, however, makes it such that the access way

does hit the Oakland Road at a fairly acute angle. That could easily be

remedied by excavating a wider turning spot and moving the retaining wall

further back away from the road so that vehicles could enter and exit the

access way perpendicular to the road. The hauling road appears to be fairly

smooth, without any ruts or protruding rocks. It appears true that the entrance

to the access way is close to a fairly sharp curve. However, that is not unusual.

Many driveways in Nova Scotia are similarly situated. It appears as though the

Department of Transportation has recognized and addressed the issue by

installing the hidden driveway sign shown in photos 6 and 8.

[32] Although the entrance and approach to this access way is not ideal, there are

many in Nova Scotia, including in the metropolitan region, that are far worse.

[33] Irrespective of whether the test is practical necessity or absolute necessity, in

my view neither test is met. The current Oakland Road access is somewhat

inconvenient because of the extra caution that must be exercised in entering

and leaving the access road, particularly if coming from or headed towards

Mahone Bay. Going towards Indian Point, one hits the road obliquely in the

direction of travel and the only concern is the curve. Coming from Indian

Point, and turning into the access road, there is no problem as there is no

concern for traffic and the angle of approach is very favorable. However, in

my respectful view, the level of inconvenience caused by the configuration of

the Oakland Road access does not even come close to establishing that an

alternate access route is necessary, irrespective of whether the test is practical

or absolute necessity.

[34] Therefore, the Hutton’s have not established a right-of-way by necessity.

ISSUE 1(b) WHAT, IF ANY, RIGHT-OF-WAY, EXISTS OVER THE BURGOYNE LOT, FOR THE BENEFIT OF THE HUTTON SALES LOT, BY WAY OF AN IMPLIED EASEMENT FROM UNITY OF TITLE?

[35] The Huttons argue that, at the time of division, the existence of the swamp at

the north end of the Hutton sales lot made Highway 3 inaccessible from that

Lot. Therefore, the Court should find that there was implied easement, even

though there was access off of the Oakland Road. They reiterate the existence

of a steep incline, severe blind turn and narrow angle as grounds.

[36] In 3021386 Nova Scotia Limited v. Barrington (Municipality), 2014 NSSC

1, at paragraphs 17 to 25, the Court discussed the test for an implied grant of

easement. Paragraph 17 lays out a general formulation of the test. Paragraphs

18 to 23 discuss cases containing varying formulations or expressions of the

three part test. The points to be drawn from those cases are summarized at

paragraph 24. I reproduce only paragraphs 17, 24 and 25 here. They state the

following:

[17] Anger & Honsberger, “Law of Real Property, Third Edition” (Toronto: Thompson Reuters Canada Limited, 2012), at pages 17-9 and 17-10 states:

‘When land owned by one person is divided and part of the land conveyed to another, even if there are no words in the instrument expressly creating an easement, a court will imply that the new owner was granted easements of necessity and any continuous and apparent easements which existed as quasi-easements during unity of ownership. Thus, the implied grant will render the retained lands servient and the newly acquired portion dominant.

….

In order for a quasi-easement which was exercised during unity of ownership to become an easement by implication of law, the right claimed must meet certain criteria:

(a) it must be necessary to the reasonable enjoyment of the part granted;

(b) it must have been used by the owner of the entirety for the benefit of the part granted up to and at the time of the grant; and

(c) it must have been apparent at the time the land for which the easement is claimed was acquired.

For an easement to be apparent, its previous use must have been indicated by some visible, audible or other apparent evidence on either the quasi- dominant or the quasi-servient tenement which could be seen, heard or smelled by a reasonable inspection.’

….

[24] Dobson, DuVernet and Cringle expressed the necessity criterion in a slightly different way from that in which it is expressed in the other authorities cited. The Dobson case simply speaks of being “necessary to the enjoyment of the property”, without any adjective qualifying the enjoyment. DuVernet speaks of the easement being “necessary for the reasonable and convenient use of the land conveyed”. However, it is noteworthy that it cites in support the Wheeldon v. Burrows case which speaks of “those easements which are necessary to the reasonable enjoyment of the property granted”. The Cringle case speaks of those easements “which are necessary for the convenient use and enjoyment of the land” sold. The Applicant places significant emphasis on the word “convenient” in support of its argument that the easement requested in the case at hand should be granted. I will explore that word further in my discussion of the necessity criterion below.

[25] It is clear from all of the authorities that the Applicant must establish all three criteria. If the Applicant fails to establish one criterion, its claim must fail.

[37] Then, at paragraphs 35 to 37, the Court added:

… [T]he use of the word ‘convenient’ in Dobson and Cringle, was simply another way of saying that the use and enjoyment being referred to was that which was reasonable, suitable or proper.

[36] I do not take the use of the word “convenient” as indicating that the grantee need not incur any inconvenience or expense in sourcing alternatives to the easement sought.

[37] The standard required to establish the necessity criterion is not clearly established in the authorities. However, it is clear that “considerable inconvenience” in creating an alternative to the easement will suffice: Trizec, paragraph 17; Germain, paragraph 50.

[38] This decision was affirmed on appeal in 3021386 Nova Scotia Limited v.

Barrington (District), 2015 NSCA 30, where, at paragraph 15, the Court

impliedly approved of this test for an implied grant of easement.

[39] The Huttons submit that the eastern half of the original 30 acre lot was first

split from the western half in 1834 by way of the warranty deed from John

“Bourgoyne” to John Broom.

[40] That submission is inconsistent with the evidence of their expert, Robert C.

Becker, Nova Scotia Land Surveyor. At page 3 of his report he states that

“John Burgoyne had acquired this lot from the Jacob Burgoyne in 1807” and

he references the deed in question. It is dated March 23, 1807. It was

registered April 7, 1807, in Book 6, at Page 3. It notes that the consideration

provided for the conveyance was the sum of 220 Pounds. It conveys the

property to both John “Bourgoyne” and George “Bourgoyne”.

[41] In an 1812 deed, George “Bourgoyne” and his wife conveyed 7.5 acres of

Lot Number 3 to his Brother, John “Bourgoyne”. That may explain why Mr.

Becker indicated that John Burgoyne acquired it in 1807. I also note, as the

parties have accepted, that the spelling of the Burgoyne family name has

changed over the years.

[42] In 1807, there was also a mortgage for the full Lot Number 3 from David

“Bourgoyny”, and his sons John and George, to Peter Zinck. It indicates that it

secures a sum of 200 Pounds to be paid over four years. It is also dated March

23, 1807. It was recorded June 8, 1807, in Book 6, at Page 13. Given that it

was executed on the same date as the deed into the two sons, and that it is for

an amount approaching the purchase price for the eastern half of Lot Number

3, it is easily plausible that David also put up his portion of Lot 3 as security

for the loan to his sons to purchase the eastern half of Lot 3. Therefore, I do

not take this mortgage as establishing that there was still unity of title

following the deed from Jacob to John and George.

[43] Therefore, more likely than not, Mr. Becker is correct and unity of title was

severed, at the latest, in 1807.

[44] The Huttons submit that the road from Mahone Bay to Chester, being the

predecessor to Highway 3, was laid out in the early to mid-1800s. They

suggest that the evidence of that can be gleaned from the plan of subdivision.

[45] I was unable to locate any subdivision plans in evidence, showing the

presence of or plans for that road, which were identified as having been

prepared in or before 1807. In Exhibit A to the affidavit of Wendy Gingell,

Title Searcher, there is a plan identified as being a Halifax and Southwestern

Railway Plan, which does indicate the presence of the road from Mahone Bay

to Chester. It is undated. However, on that plan, John Bruhm, is shown as

being the owner of the lot between Burgoyne and Ernst, which is the eastern

half of Lot 3. John Broom did not acquire that lot until it was conveyed to him

via the 1834 warranty deed from John Bourgoyne. There is no dispute that the

spelling of the surname Bruhm has changed over the years. There is no

indication of an earlier conveyance to John Bruhm. It is not disputed that the

references to John Broom and John Bruhm are references to the same person.

[46] Therefore, the Huttons have failed to establish that when the Hutton Sales

Lot was initially separated from the full 30 acre Lot 3, Highway 3, or the road

from Mahone Bay to Chester, existed or was even planned. More likely than

not, it was not.

[47] Consequently, no access route to such a road for the use of the owner of the

entire 30 acre Lot 3 could have existed at the time of the grant separating the

western and eastern halves of Lot 3. As such, no implied easement for the use

of such access route can exist.

[48] Further, even if the road from Mahone Bay to Chester had existed in 1807,

in my view, access to that road would not have been necessary to the

reasonable enjoyment of what is now the Hutton Sales Lot. At that time, land

transportation of produce and goods to and from that lot would have been

primarily effected by way of human or animal power. The home and

outbuildings, including farm related outbuildings, according to the evidence

provided, were all at the Oakland Road end of the property. In order to access

the Mahone Bay to Chester Road, over the western half of Lot 3, those

humans or animals would have had to have negotiated a steep climb over the

drumlin. It would have been much easier to take the downhill path to the

Oakland Road and follow it along the shore of Mahone Bay and around the

bottom of the drumlin, even if they were ultimately headed for Chester.

Further, the plans submitted in evidence show old wharves on the shores of

Mahone Bay across from where the Hutton sales Lot hits the Oakland Road.

Arguably, transportation by water to Chester would have been, in those days,

more convenient than travel by road using animal power. Further, the nearest

market would appear to have been Mahone Bay itself, which was clearly more

easily accessible using the Oakland Road or by simply rowing across what

appears, from the mapping plans submitted in evidence, to be a very narrow

stretch of water.

[49] In addition, the Oakland Road access already existed as an alternative to the

easement suggested. There was no need to create such an alternative. So one

would not even need to consider whether “considerable inconvenience” would

have been incurred in creating one.

[50] For these reasons, in my view, the Hutton’s have failed to establish that a

right-of-way was created as an implied easement at the time Lot 3 was split in

two.

ISSUE 1(c) WHAT, IF ANY, RIGHT-OF-WAY EXISTS OVER THE BURGOYNE LOT, FOR THE BENEFIT OF THE HUTTON SALES LOT, BY WAY OF PRESCRIPTION UNDER THE LIMITATION OF ACTIONS ACT, OR THE DOCTRINE OF LOST MODERN GRANT?

[51] The Limitation of Actions Act, S.N.S. 2014, c. 35, amended Section 1 of the

Limitation of Actions Act, R.S.N.S. 1989, c. 258, by changing the reference in

Section 1 to the Limitation of Actions Act . It substituted a reference to the

“Real Property Limitations Act”. It also made other changes to that

Limitation of Actions Act.

[52] However, the within proceedings were commenced in 2013, i.e. prior to the

2014 Limitation of Actions Act. Therefore, the provisions in place at that time

are applicable.

[53] Sections 32, 34 and 35 of the former Limitation of Actions Act stated:

“Prescription

32 No claim which may be lawfully made at the common law by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, over or from any land or water of our Lady the Queen, her heirs or successors, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated and where such way or other matter as herein last before mentioned has been so enjoyed as aforesaid for the full period of twenty-five years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly given, or made for that purpose by deed or writing. R.S., c. 258, s. 32; 2001, c. 6, s. 115.

….

Interruption of prescription period

34 Each of the respective periods of years, mentioned in Sections 32 and 33, shall be deemed and taken to be the period next before some action or proceeding wherein the claim or matter to which such period relates, was, or is, brought into question and no act or other matter shall be deemed an interruption within the meaning of the said two Sections, unless the same has been submitted to or acquiesced in for one year after the party interrupted has had notice thereof, and of the person making or authorizing the same to be made. R.S., c. 258, s. 34.

No presumption

35 In the several cases mentioned in and provided for by the said two Sections of the claims to ways, or other easements, watercourses, the use of any water or

lights, no presumption shall be allowed or made in favour or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in the said two Sections as is applicable to the case and to the nature of the claim. R.S., c. 258, s. 35.

[54] In Croft v. Cook, 2014 NSSC 230, at paragraphs 26 to 35, the Court

provided a thorough review of the law in relation to easements by prescription

and the doctrine of lost modern grant. It stated:

[26] It is well settled that in this province, an easement by prescription can be acquired in one of two ways, namely, under s.32 of the Limitations of Actions Act or under the doctrine of lost modern grant (see, for example, Mason v. Partridge, 2005 NSCA 144).

[27] In Mason, the Nova Scotia Court of Appeal cited with approval the description of the doctrine of lost modern grant set out in the Nova Scotia Real Property Practice Manual authored by Charles MacIntosh as follows (at pg. 7-21):

... The [doctrine of lost modern grant] is a judge-created theory which presumes that if actual enjoyment has been shown for 20 years, an actual grant has been made when the enjoyment began, but the deed granting the easement has since been lost. However, the presumption may be rebutted.

[28] The Nova Scotia Court of Appeal then went on to confirm the requirements for establishing an easement under either a limitations statute or the doctrine of lost modern grant by citing with approval the following passage from the well-known Ontario Court of Appeal decision in Henderson v. Volk, 1982 CarswellOnt. 1343:

It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20-year period immediately preceding the bringing of an action.

[29] In the ensuing passage in Volk (para. 15), the court added that the enjoyment must not be permissive, i.e., it cannot be a user of the right-of-way enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established. The court went on to say (at para. 21) that it is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both the continuous use and acquiescence in such use by the owner of the servient tenement.

[30] It was the issue of acquiescence by the owner of the servient tenement in the continuous use of the right-of-way that was at the forefront of the appeal in Mason. In that case, the Court of Appeal ruled that the trial judge erred in law by failing to recognize that he could infer from the use of lands to which an owner acquiesces that such use was “as of right” and sufficient to support a claim of prescription.

[31] In arriving at that conclusion, the Court of Appeal adopted the following passages from Gale On Easements, 17th Ed. (London: Sweet & Maxwell 2002) at paras. 31-32:

The distinction between acquiescence and permission and the importance of acquiescence to a claim by prescription is described by Gale on Easements at p. 215 thus:

The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is "as of right"; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not "as of right". Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence. The positive act or acts may take different forms. The grant of oral or written consent is the clearest and most obvious expression of permission. But there is no reason in principle why the grant of permission should be confined to such cases. Permission may also be inferred from the owner's acts. It may be that there will not be many cases where, in the absence of express oral or written permission, it will be possible to infer

permission from an owner's positive acts. Most cases where nothing is said or written will properly be classified as cases of mere acquiescence. But there is no reason in principle why an implied permission may not defeat a claim to use "as of right". Such permission may only be inferred from overt and contemporaneous acts of the owner. (Emphasis added)

As stated in Gale on Easements at p. 207, the element relating to whether the use was "as of right" "... requires one to look at the quality and character of the user and to ask whether the user is of a kind which would be enjoyed by a person having such a right."

[32] The Court of Appeal adopted a further passage from Gale on Easements which reads as follows (at para. 45):

As the passage from Gale cited in para. 35 makes clear, once there is proof of acquiescence in acts of user which are of such a character as to support a claim of right, the claimant has established that the acts were as of right unless the owner points to some "positive acts" on his or her part which either expressly or impliedly grant permission. . . .

[33] I also refer to the decision of the Ontario Superior Court of Justice in 394 Lakeshore Oakville Holdings Inc. v. Misek [2010] O.J. No. 4659 which provides an excellent and comprehensive review of the law of prescriptive easements (at paras. 58-98). That decision was affirmed on appeal, cited as [2011] O.J. No. 5431.

[34] For the sake of brevity, I will quote only two paragraphs from the appellate decision which summarizes the criteria for establishing a prescriptive easement as applied in the court below:

204 The motion judge referred to the four essential characteristics of an easement as described by the Master of the Rolls in Re Ellenborough Park, [1956] 1 Ch. 131 (Eng. C.A.):

(i) There must be a dominant tenement (the property that enjoys the benefit of the easement) and a servient tenement (the property that is burdened);

(ii) The easement must accommodate, that is, better or advantage the dominant land and not merely the owner of the land. It is not enough that an advantage has been conferred to the owner of the dominant property making his or her ownership more valuable or providing a personal benefit to him or her; rather, for there to be an easement, the right conferred must serve and be reasonably necessary for the enjoyment of the dominant tenement;

(iii) Both tenements cannot be in the hands of the same person; and

(iv) The easement must be capable of forming the subject matter of a grant. The following conditions must be met to fulfill this requirement: the rights claimed must not be too vague; the rights claimed must not amount to a good claim to joint occupation of the property in question or substantially deprive the owner of the servient property of proprietorship or legal possession; and the rights claimed must not be ones of mere recreation and amusement. The rights in issue must be of utility and benefit.

208 In addition to considering whether the evidence established the essential characteristics of an easement articulated in Ellenborough Park, the motion judge also considered the following criteria for establishing a prescriptive easement. These criteria apply whether the claim for the easement is based on a limitations statute or the doctrine of lost modern grant:

(i) Use by permission or license is insufficient to establish a prescriptive easement;

(ii) The easement claimant's use must be open and not secret or clandestine;

(iii) There must be evidence that the owner of the servient tenement knew or ought to have known what was happening on his or her land;

(iv) Use permitted by neighbourliness is insufficient to establish an easement by prescription; and

(v) The use of the easement must be uninterrupted for the required prescription period.

[35] As for the last criterion, the Ontario Court of Appeal also recited from one of its earlier decisions that “Uninterrupted user as of right at any point in time will create the prescriptive right under this doctrine [of lost modern grant], provided it was for at least 20 years”. (see para. 207).

[55] The Court in Balser v. Wiles, 2013 NSSC 278, at paragraph 14, aptly

summarized the principles articulated in paragraphs 19 to 22 of Mason as

follows:

[14] The claimant must also establish that the use was made without violence, secrecy or evasion, and without consent or permission of the servient owner … .

[56] In Coady v. Dicks, 2004 NLSCTD 139, at paragraph 90, the Court stated:

“[90] The most critical element in a claim for prescriptive easement is that the usage on which the dominant owner (he who claims the benefit of the prescriptive easement) relies was nec precario. If the servient owner has been more than merely acquiesced and has given permission to the dominant owner to use the property a prescriptive easement will not be established. Permission may be express or implied but it always defeats a claim that the usage was “as of right.”

[57] In Kimbrell v. Goulden, 2006 NSCA 102, at paragraphs 38 and 39, the

Court highlighted that it is generally the actions or communications of the

owners of the respective properties which determine whether an easement has

been created. The Court stated:

[38] Moreover, the creation of an easement generally requires the involvement of the landowners of the dominant and servient tenements:

Gale, supra, 4-50, at 198:

As it is essential to the existence of an easement that one tenement should be made subject to the convenience of another, and as the right to the easement can exist only in respect of such tenement, the continued user by which the easement is to be acquired by prescription must be by a person in possession of the dominant tenement. Moreover, as such user is only evidence of a previous grant - and as the right claimed is in its nature not one of a temporary kind, but one which permanently affects the rights of property in the servient tenement - it follows that by the common law such grant can only have been legally made by a party capable of imposing such a permanent burden upon the property - that is, the owner of an estate of inheritance. Further, in order that such user may confer an easement, the owner of the servient inheritance must have known that the easement was enjoyed, and also have been in a situation to interfere with and obstruct its exercise, had he been so disposed. His abstaining from interference will then be construed as an acquiescence.

(Emphasis mine)

Also at p. 199, 4-51:

According to the common law, all prescription presupposes a grant, and . . . the general rule is that, to establish a prescriptive title to an easement, the court must presume a grant of the easement by the absolute owner of the servient tenement to the absolute owners of the dominant tenement.

[39] The essential elements that must be met to establish a prescriptive right of way are set out in C.W. MacIntosh, Nova Scotia Real Property Practice Manual, (Markham: LexisNexis Canada, 1988) at the beginning of section 7.2:

An easement is created by grant, whether express, implied or presumed. An easement which is the subject of a presumed grant is one created under the doctrine of prescription. The criteria of establishment of a prescriptive easement were adopted from the civil law and are of ancient origin. The user must be “nee vi, nee clam, nee precario (sic) [nec vi, nec clam, nec precario].” In modern terms this means that the user must be neither violent, nor secret, nor permissive.

Before an easement will arise by prescription, the claimant must show user “as of right,” meaning enjoyment of the land as if he were the true owner. The use must be open, adverse, notorious and continuous and not secret. A prescriptive easement will not arise if the use has been with the permission of the owner.

[58] However, it may suffice if the access route is used by visitors or guests of

that dominant tenement owner: Nova Scotia Real Property Practice Manual,

page 7-127, citing Myers v. Bradstock, 2011 NSSC 342. In that case the

owner did not have a car. However, others regularly drove her to and from her

home over the driveway in question. They also regularly drove to and from her

home to visit her. Such access through the driveway in question was primarily

for the benefit of the dominant tenement owner. In addition, it was also under

her direction. As such, it is understandable that it would operate as an

exception to the general rule that the user must be by a person in possession of

the dominant tenement.

[59] Similarly, in Crocker v. William Beatty Co., [1989] O.J. No. 1397 (D.C.),

the Court concluded that user under the direction or control of the dominant

tenement owner served to establish a prescriptive easement. In arriving at that

conclusion it distinguished Temma Realty Co. v. Ress Enterprises Ltd.,

[1968] 2 O.R. 293 (C.A.), where the Court found that user by delivery vehicles

owned by independent contractors having no interest in the property and not

subject to the direction and control of the dominant tenement owner or its

tenants was insufficient to create a prescriptive easement. It was noted in

Temma that there was no evidence anyone directed the drivers of these

delivery vehicles to use the way in question, leaving open the inference they

chose their own access route. Those delivery vehicles effected deliveries and

pickups for the dominant and servient tenements, travelling from one property

to the other in the process.

[60] In Mason v. Partridge, 2005 NSCA 144, at paragraphs 43 and 44, the Court

highlighted the interplay between the type of user and the policy objective of

promoting good neighbourliness as follows:

[43] Cory, J.A. addressed the different types of user and their implications in Henderson thus:

19. The evidence required to establish title by prescription will vary with the nature of the user. The use of a passageway by noisy delivery trucks would be hard to hide. The use of a lane for passage by tractor trailer rigs with motors roaring and air brakes hissing would be difficult to disguise. In those instances the owner of the servient tenement can readily be taken to know of the user of his property. If he makes no objection then his acquiescence to the use can readily be inferred.

20. It is different when a party seeks to establish a right‑of‑way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient tenement. In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use.

With regard to the use of a sidewalk as in that decision, he made reference to policy grounds as follows:

21. It is right and proper for the courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant was established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor. It is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both the continuous use and acquiescence in such use by the owner of the servient tenement.

[44] The trial judge failed to note the distinction between the types of user in the Mason and Henderson decisions and in the case before him. His did not involve user by pedestrians or another sort of use of modest impact and visibility. The use of the roadway to the Mason property by commercial logging trucks was such that it could not have been missed by the owner of the servient tenement. Barbara Theriault’s evidence makes it clear that the Sullivans certainly knew what was happening. Mason and Henderson are distinguishable on their facts from the case on appeal. The policy reasons underlying them, in particular the encouragement of good neighbourliness, as set out in Henderson, are considerably weaker where the user is not, for example, by people walking over a stairway, a sidewalk or a path but a substantial, noisy and intrusive user by trucks transporting pulpwood and logs over a roadway.

[61] Thus, the more disruptive and intrusive the use, the less likely it is that lack

of intervention will be construed as merely good neighbourliness, and the

more likely it is that it will be construed as acquiescence.

[62] The Court in Mason, at paragraph 48, also provided the following guidance

on the question of abandonment or extinguishment of a right of easement

which is established to have previously existed:

[48] A lengthy period of non-use does not equate to abandonment. According to Gale on Easements, supra at p. 456, more than the fact of non-use is required:

... mere non-user without more, however long, cannot amount to abandonment. Such non-user is evidence of which abandonment may be inferred but must be regarded in the context of the circumstances as a whole.

The non-user may be explained by the fact that the dominant owner had no need to use the easement, in which case it will not be enough to establish abandonment. A presumption of abandonment will arise where there are circumstances adverse to the user and sufficient to explain the non-user, combined with a substantial length of time during which the dominant owner has acquiesced in that state of affairs or where the dominant owner does some act clearly indicating the firm intention that neither he nor any successor in title of his should thereafter make use of the easement. It has been said that abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use of it.

[63] Similarly, in MacNeil v. Anban Holdings, 2005 NSSC 6, paragraph 17

stated:

“It is clear then that their right-of-way will not be terminated for non-use alone. There must be ‘very definite evidence of abandonment’ to use the words of Glube J.”

[64] At page 1 of their post-trial reply submissions, the Huttons agreed that, in

relation to their claim for a declaration of a right of easement under the

Limitation of Actions Act, they must be able to establish use for the requisite

period of time counting back from the date of the application. However, they

argue that, as a defence to the application of the Burgoynes, the burden is on

the Burgoynes to show that they interrupted user by the Huttons or their

predecessors.

[65] In my view, irrespective of whether the Huttons are responding to the

Burgoyne Application alleging trespass or bringing their own Application for

a declaration of easement, they must establish the existence of an easement.

One of the requisite elements of the use required to establish an easement by

prescription under the Limitation of Actions Act or the doctrine of lost modern

grant is that it be “continuous”. Gaps in user of the way may break that

continuity and defeat the right. For example, in Barton v. Raine, [1979] O.J.

No. 3150 (Co. Ct.), a 3 year gap in use of a driveway defeated the

establishment of a prescriptive easement under that Limitations Act. That

conclusion was reached even though the gap resulted from the dominant

tenement owner suffering a stroke, then dying, leaving his wife who did not

drive, and who continued to occupy the property until her death.

Consequently, in my view, if use of the way in question for the benefit of the

Hutton Sales Lot has not been continuous for the requisite length of time and

during the requisite period, the Burgoynes need not show that the use has been

“interrupted” by their actions.

[66] As an aside, for greater clarification, in my view, the question of

abandonment does not arise unless and until a right of easement is established.

[67] The parties dispute the interpretation of the last part of section 32 of the

former Limitation of Actions Act, now the Real Property Limitation Act,

which states:

“Where such way or other matter as herein last before mentioned has been so enjoyed as aforesaid for the full period of 25 years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly given, or made for that purpose by deed or writing.”

[68] The Huttons argue that, in order to defeat a prescriptive easement where

there has been user for 25 years or more, the consent or agreement of the

servient tenement owner must be in a deed or a writing. The Burgoynes take

the position that it can be expressly given orally.

[69] In Publicover v. Publicover, [1991] N.S.J. No. 46 (S.C., T.D.), the Court

stated:

“If the defendant is able, on the balance of probabilities, to prove that, since May 1949, the owners and occupiers of lot C-2 have used the right-of-way over lots A and B in an open, continuous and unobstructed manner, without written permission of the owners from time to time, of lots A and B, the defence to this action would succeed”. [Emphasis by underlying added]

[70] In Langille v. Tanner, [1973] N.S.J. No. 202 (S.C., T.D.), the Court stated:

“There is no doubt that the cartroad running across the plaintiff’s property has been enjoyed by the defendants and their predecessors in title for a period in excess of 40 years, and no deed or other writing expressly conferring consent or agreement to this use has been established.”

[71] I pause to note that the version of the Limitation of Actions Act at that time

required user for 40 years, instead of 25 years, for an indefeasible right to

accrue.

[72] These Nova Scotia cases have required the consent or agreement to be by

deed or in writing, which is the interpretation advanced by the Huttons.

[73] The rationale for such an interpretation is explained in detail in Rose v.

Krieser, [2002] O.J. No. 1384 (C.A.), at paragraphs 22 to 30, and 33 to 35, as

follows:

“[22] Turning to s. 31 of the Limitations Act, I note at the outset that it is not a simple provision to understand. It is modelled on s. 2 of the English Prescription Act, 1832. [See Note 1 at end of document] Megarry & Wade note that that "Act . . . is notorious as "one of the worst drafted Acts on the Statute Book". [See Note 2 at end of document] As the Prescription Act was an attempt to reduce certain difficulties arising at common law, it will be helpful to consider English law relating to prescription before attempting to understand the section.

[23] Prescriptive rights can arise in three ways under English law:

(1) at common law;

(2) under the doctrine of lost modern grant; or

(3) under the Prescription Act, 1832.

[24] To establish a prescriptive easement at common law, one had to demonstrate continuous use from time immemorial, i.e. 1189, the first year of the reign of Richard I. A claim would fail if it could be shown that use commenced after 1189. English courts developed the doctrine of lost modern grant as a response to the problem that the passage of time was making it increasingly difficult to satisfy the common law test. The doctrine of lost modern grant is a legal fiction that presumes long use originated in an actual grant of the right but that the deed of grant has been lost. [See Note 3 at end of document]

[25] Megarry and Wade comment that "presuming the existence of grants which had probably never been made was frequently felt to be objectionable" and that "[t]he Prescription Act, was designed to reduce the difficulties of prescription . . . and in particular the difficulty of persuading juries to presume grants to have been made when they knew this was not true". [See Note 4 at end of document]

[26] The following excerpts from paras. 18-121 and 18-132 of The Law of Real Property provide a useful background concerning the underlying basis of the law of prescription (all case citations omitted):

The basis of prescription is that if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin. Thus, the court may presume, on proof of the fact of long enjoyment, that there once was an actual grant of the right, even though it is impossible to produce any direct evidence of such a grant.

. . . . .

Prescription and limitation are in many ways similar principles, but as the law has developed they have become quite distinct subjects . . . One important difference is that limitation is extinctive but prescription is acquisitive: that is to say, adverse possession . . . extinguishes the previous owner's title, leaving the adverse possessor with a title based on his own actual possession, but prescription creates a new right which no one possessed previously. This is brought about by presuming a grant.

[27] With that background, I turn to the actual language of s. 31 of the Limitations Act. The relevant portions are as follows:

31. No claim that may be made lawfully at the common law, by . . . prescription or grant, to any way or other easement, . . . when the way . . . has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way . . . was first enjoyed at any time

prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and when the way . . . has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

[28] Leaving aside for the moment the closing words of s. 31, the first part of the section shortens the time period required to acquire an easement by prescription from time immemorial, or from the presumed date of a lost grant, to either 20 years or 40 years immediately preceding the action, depending on the circumstances. The first part of s. 31 also preserves the other common law defences, apart from length of use, as part of its requirements.

[29] As for the closing words of s. 31, again, some additional background concerning the law of prescription will be helpful. Following the enactment of the Prescription Act, English courts interpreted the type of use that would be sufficient for a claim to succeed under s. 2 of the Act as being of the same character as that required at common law to found a claim by prescription.

[30] In Gardner v. Hodgson's Kingston Brewery Co., [1903] A.C. 229 at p. 239, 72 L.J. Ch. 558 (H.L.), Lindley L.J. explained that the words "claiming right thereto" in s. 2 of the Prescription Act, which also appear in line 4 of s. 31 of the Limitations Act, have the same meaning as the term "as of right". …

….

[33] Finally, The Modern Law of Real Property [See Note 6 at end of document] contains a caution that the language of s. 2 of the Prescription Act cannot simply be interpreted at face value:

A hasty reading of section 2 might induce the belief that a right enjoyed for forty years is indefeasible unless it can be proved that it was enjoyed by virtue of a written grant. But this is not so. In the case of enjoyment for the shorter period the claim cannot be met by the objection that enjoyment originated subsequently to 1189, but it can be met and defeated by any one of the common law defences, namely:

a) that the right claimed lacks one or more of the characteristics essential to an easement; or

b) that the right in question, though enjoyed for twenty years, is prohibited by law, as, for example, because a grant would have been ultra vires the grantor; or

c) that the user was not as of right, i.e. that it was forcible, or secret, or enjoyed by permission whether written or oral.

Next, a claim to an easement based upon forty years' enjoyment can likewise be defeated upon the first two grounds, and also by proof that the user was forcible or secret or enjoyed by written permission. What is not sufficient to nullify a user lasting for this longer period is the oral permission of the servient owner.

(All citations omitted, emphasis in original)

….

[35] Examined in context, it is apparent that the closing words of s. 31 relating to the 40-year time period are to be read in contrast with the preceding part of the section dealing with the 20-year time period. The words "consent or agreement expressly given or made for that purpose by deed or writing" in relation to the 40-year time period relate to the common law defence of permission given by deed or writing, and clarify that the defence of permission does not apply in full measure to the 40-year period. Rather, the defence is limited to written permission with respect to the 40-year period.”

[74] I agree with this rationale and conclusion. Therefore, if the Huttons have

established the requisite usage for at least the 25 year period immediately

preceding the Burgoyne Application, even if that usage was by permission,

they will have established a right of easement, unless that permission was in

writing.

[75] However, permission of any kind, whether implied, oral or written, will

defeat a claim to a right of easement under the Limitation of Actions Act,

based on usage for the 20 year period immediately preceding the Application,

or based on the doctrine of lost modern grant.

[76] In the Nova Scotia Real Property Manual, at the top of page 13-76, it is

stated:

“In a case where the existence of a prescriptive easement is alleged, the onus is on the plaintiff to show that the use of the easement during the relevant period was done without permission of the servient owners. When the court is dealing with usage that last occurred more than 40 years ago, and neither the dominant or servient owners at the time are alive to testify, it may be found that the evidence is at least equally consistent with expressed or tacit permission by the owners of the servient tenement, and the claim for an easement pursuant to the doctrine of lost modern grant will be denied.”

[77] Therefore, the Huttons bear the initial onus of establishing the lack of

applicable permission.

[78] However, the evidentiary onus of establishing permission, or lack thereof, is,

in my view, a shifting one. For instance, if there is evidence from which

“acquiescence”, or lack of written permission (where applicable), can be

inferred, then the evidentiary onus shifts to the owner of the servient tenement

to show the use was by permission, or written permission, whichever is

applicable.

[79] I will now discuss the evidence of user in the case at hand.

Gary Crossland

[80] Gary Crossland deposed that, around 1970, he started cutting hay on the

Homestead Lot and the Hutton Sales Lot, along with four other properties in

the same area, owned by the Wentzells, Caverzans, and the Ernsts. The hay

cutting all arose from him being initially contacted by Paul Wentzell to cut hay

on his property. It is noteworthy that he did not recall there being any chickens

on the Homestead Lot. He only remembered barns without birds. The chicken

operation ceased in the early 1980’s. Therefore, Mr. Crossland may be

mistaken as to when he started making the hay, or he may be mistaken about

the absence of birds. In any event, it is not disputed that he started around

1970.

[81] Mr. Crossland had safety concerns associated with bringing the hay off of

the Hutton Sales Lot through the Ernst Property. Therefore, he asked Harold

and Irene Burgoyne, Daniel’s parents, for permission to use their driveway for

that purpose. They gave him that permission. He also took the hay off of the

Homestead Lot over that driveway.

[82] He testified that there was a spot in the area where Lorraine Wentzell had a

path mowed to his garden, where Mr. Crossland could pass to get the hay off

of the Hutton Sales Lot. That spot was right across from Daniel Burgoyne’s

house.

[83] However, even though he had Harold Burgoyne’s permission to pass over

the driveway to remove hay from the Hutton Sales Lot, when he could, he

would still remove it over the Ernst property, out to the Oakland Road. When

it was dry he took quite a bit of the hay off that way.

[84] In addition, Mr. Crossland deposed that, when he was cutting the hay, he

would usually enter upon the Wentzell Lands and make his way to the

Homestead Lot. Harold Burgoyne had given him permission to continue

across onto the Hutton Sales Lot to continue cutting there. There was a little

hole in the bushes where he could pass with his equipment when the ground

was firm. In addition, he accessed the lower part of the Hutton Sales Lot to cut

hay off of it by traveling over the Ernst property.

[85] Mr. Crossland marked on the enlarged plan of survey entered as Exhibit 5

where he made holes in the bushes so that he could cross over to the Hutton

Sales Lot without going on the Burgoyne driveway. One spot coincided

approximately with the location where a roadway labeled R5 shown on a plan

prepared by Robert Becker, Land Surveyor, as intersecting with the boundary

of the Burgoyne Lot, which plan and roadway I will discuss later. The other

punch through spot was closer to the boundary between the Burgoyne Lot And

the Homestead Lot, but still on the Burgoyne Lot.

[86] It is interesting that Mr. Crossland deposed that he did not obtain express

permission from Connie Olsen to cut hay on the Hutton Sales Lot. However,

he had been advised through Lorraine Wentzell that she did not mind.

[87] Daniel Burgoyne agreed with the following suggestions. He saw Mr.

Crossland haying and passing over the driveway in question. He saw him

putting manure in the spring. Mr. Crossland made hay until 2003. At least

from 1986 to 2003 he spread manure on the Olsen Farm.

[88] Mr. Crossland testified that he met up with Harold Burgoyne and spoke to

him one day on the Burgoyne Lot. Harold Burgoyne told / asked him to the

mindful of the driveway and to use the field if he could when the driveway

was susceptible to being dug up by the tractor tires. Mr. Crossland respected

that request. Though this exchange could arguably be consistent with use as of

right, it is, in my view, more consistent with use by permission.

[89] That Mr. Crossland was using the driveway by permission is also

corroborated by Daniel Burgoyne’s account of a conversation he had with Mr.

Crossland. Mr. Crossland had brought him a load of manure. He asked Mr.

Crossland how much he owed him. Mr. Crossland replied: “nothing, because

you guys are good enough to let me use your road”.

[90] Daniel Burgoyne also recalled Mr. Crossland using driveways to other

properties for hay making purposes. In addition, while cutting the hay, he

would go from a property to property, rather than use driveways.

[91] Elizabeth Burgoyne only recalled Mr. Crossland making one cut of hay per

year on the Hutton Sales Lot.

[92] Mr. Crossland deposed that he stopped cutting hay on the Ernst property

around 2002 because percolation test holes had been dug, making the ground

too rough. He also stopped cutting hay on the Hutton Sales Lot, for the same

reason, after it was purchased by the Company in April 2002.

[93] I accept Mr. Crossland’s evidence that he was crossing over to and from the

Hutton Sales Lot, from the Burgoyne side with permission, not as of right. As

such, it was not user which would create an easement.

[94] Even if it had not been by permission, Mr. Crossland had no interest in the

Hutton sales Lot and was not subject to the direction or control of its owner or

occupant. He went back and forth along the properties where he chose, while

respecting the expressed wishes of the other property owners. As such, in my

view, the situation would have been like that in Temma Realty, and his use of

the Burgoyne Driveway would not have created a prescriptive easement for

the benefit of the Hutton Sales Lot.

Previous Haymakers

[95] Daniel Burgoyne acknowledged that he recalled Donnie Barry making hay

before Mr. Crossland started doing so in 1970. He also deposed that, while he

was growing up, hay would be cut once a year and the driveway would be

used for that purpose. He did not specify where the hay was cut. However, he

deposed that David Aulenback and Steve Barry did not make “our” hay,

meaning the Burgoyne family’s hay, for more than 20 years. In addition, he

stated he recalled the respective driveways to other properties being used for

hay making purposes as well. I note that Daniel Burgoyne was born in 1956.

Therefore, he would not likely have a personal recollection of events prior to

the 1960’s.

[96] Michael Burgoyne deposed that Steve Barry’s father, Donald Barry, and

David Aulenbach made hay on, and extracted it from, the Hutton Sales Lot for

more than 20 years and took equipment over their father’s driveway to do so.

However, Michael was born in 1961, and Mr. Crossland’s evidence is that he

started making the hay there in 1970. Therefore, Michael’s first-hand

recollection of hay making by Barry and/or Aulenbach could not reasonably

have exceeded a five year time span. He did not relate the source of his

information. Therefore, its reliability cannot be assessed. In my view, his

statement is at best based on inadmissible hearsay and, more likely than not,

on speculation.

[97] Todd Ritchie provided evidence that he recalled hay being brought out

through Bruhm’s Gate as early as around 1966.

[98] In my view, the time frame over which these previous haymakers crossed

over has not been established. At best there was a recollection of such user for

10 years. There is no direct evidence regarding whether or not the user was by

permission. However, there is pervasive evidence of permission and oral

agreement to user in connection with the Olsen and Burgoyne Lands in

question. I have already discussed the permission given to Mr. Crossland. I

will discuss further permission and agreement later. Therefore, in my view, it

is more likely that the user by these prior haymakers was by permission than

as of right.

[99] Consequently, none of this evidence establishes user which would count

towards the creation of an easement. Even if it had, the requisite 20 years of

use would not have been established, and there is no evidence of further use

without permission from 1970 to 2002, when Ms. Hutton says she accessed

the Hutton Sales Lot via the Burgoyne Lot. Assuming for the moment that

there was no user before those haymakers which preceded Mr. Crossland

which created an easement, a gap exceeding 30 years would interrupt

continuity of use. Therefore, any such use by Ms. Hutton could not be added

to that of the prior haymakers to make up the requisite 20 year period.

Similarly, the gap from 1970 to the early 1980’s, when the Wentzells accessed

their garden on the Hutton Sales Lot would be sufficient to break the

continuity of use.

Wentzell Garden

[100] Daniel Burgoyne agreed that the Wentzell Garden was on the Hutton

Sales Lot in the open field area approximately across from his house and to the

north of the location referred to as Bruhm’s Gate.

[101] Elizabeth Burgoyne testified that she did not notice that Wilfred

Wentzell had a garden on the Hutton Sales Lot until they built their house on

the Burgoyne Lot, which was in 1986. At that point, she was aware that he

was accessing the garden over their driveway. However, they did not have a

problem with that because he was a family friend. He and her husband, Daniel,

hunted together.

[102] She recalled that that Mr. Wentzell had a small opening across the

Hutton Sales Lot boundary, just wide enough for his lawn tractor. She

indicated the location was too wet for a regular tractor.

[103] Gary Crossland deposed that Lorraine Wentzell, who was Wilfred

Wentzell’s father, and lived across from the Burgoyne Lot, on Highway 3, had

a small garden at that end of the Hutton Sales Lot. He cut a path with his

lawnmower across the Hutton Sales Lot, from the Burgoyne Lot, to access his

the garden.

[104] David Olsen testified that Lorraine Wentzell and Wilfred Wentzell

had their garden there from 1983 to 1986 or maybe 1987. That is consistent

with the aerial photographs. The 1992 photograph shows an area that looks

more like an old garden with dried-up grass growing in it than a garden in

current use. The 2001 aerial photograph indicates no visible sign of a current

or abandoned garden.

[105] Michael Burgoyne and Richard Burgoyne deposed that Wilfred

Wentzell had a garden on the Hutton Sales Lot for more than 40 years.

However, that is inconsistent with Mr. Olsen’s evidence and with the aerial

photographs. The 1955 aerial photograph shows no sign of a garden where the

Wentzells later had one.

[106] Unfortunately, no aerial photograph from between 1955 and 1986 was

provided. Such photographs may have provided evidence that the garden

existed prior to 1983. However, without that, the most reliable evidence is Mr.

Olsen’s evidence that the garden started in 1983 and continued until 1986 or

1987. If the 1992 aerial photo were to be interpreted as showing a garden in

current use, the existence of the garden might be extended until then.

However, even this longer period of use would not be of sufficient length to

create an easement. In addition, the gap from 1987, or even from 1992, to

2002 would break the continuity of use so that the garden access use could not

be added to later use by Ms. Hutton.

[107] Further, there is no evidence that the Wentzell’s considered their use

of the Burgoyne driveway to access the Hutton sales Lot to be as of right. The

Wentzells and the Burgoynes were friends and neighbours. Wilfred and Daniel

hunted together. Therefore, the Burgoynes had no problem with the access by

the Wentzells. It was only by lawn or garden tractor and on foot. In my view it

was nothing more than neighbourly accommodation.

[108] Also, it is noteworthy that Wilfred Wentzell and Daniel Burgoyne

hunted in the same area on the Ernst Lot. Daniel had built a blind at the spot

where Wilfred had initially built a blind. It is Wilfred who took him to the

spot. Given this relationship between them, in my view, it is also arguable that

Wilfred had the implied permission of Daniel to use his driveway to access the

garden.

Todd Ritchie

[109] Todd Ritchie provided the following evidence. From approximately

the age of 14 to 18, which would have been from about 1966 to 1970, he

resided during the summers on the Hirtle Cove Road, in Oakland. As a

shortcut, and because of the view, they would travel on foot on the top of the

hill on what he described as farm roads over the Burgoyne and Olsen

properties as well as other adjacent properties. He indicated that there was a

well-traveled road that went through what was called Bruhm’s Gate and

crossed from the Burgoyne Lot to the Hutton Sales Lot, and to lots beyond. He

said he recalled gate posts on either side of the roadway. He indicated that he

saw landowners, their guests and workmen walk along this road. He also

observed hay being taken off of the Hutton Sales Lot through it over the

Burgoyne Lot.

[110] On cross examination he agreed that, from their summer residence on

the Hirtle Cove Road, they could not see the Olsen Farm nor the residence on

the Homestead Lot, nor the location where the Burgoynes now have their

residence, nor any of the properties in question. He and his siblings would not

hang out with the Burgoyne children. Any observations he made would have

been in the course of walking through or stopping to watch the operations.

Everyone in the area knew the Ritchie family. He and his siblings were using

their properties to travel with permission. Many would even invite them in for

a meal and let them pick vegetables from their gardens. He recalled fences

between the properties. They traveled through or over barbed wire fences.

They ensured that any gates were closed after passing. However, he did not

recall a gate or a fence between the Burgoyne and Olsen farms. Instead, he

remembered that there was a bush line.

[111] In response to Mr. Richie’s affidavit, Daniel Burgoyne deposed that

he did not recall ever seeing Mr. Richie on their property, or any adjoining

property, until he was hired to do odd jobs for his mother, Irene Burgoyne, just

a few years before he swore his affidavit in 2014. As such, Mr. Richie would

have had little or no opportunity to personally witness what he claims to have

witnessed. He added that there was not traffic traveling freely through

Bruhm’s Gate back and forth. The chicken operation was only on the

Burgoyne side. The hay making was only once per year at the time, and later it

was not made at all. Daniel would have been 10 to 14 at the time, and, thus,

old enough to remember.

[112] In my view, more likely than not, Daniel Burgoyne is correct and Mr.

Richie has exaggerated his observations. He may have passed at times and

observed some activity and pathways. However, more likely than not, the

activity he observed was not significant, and the paths were not well-travelled

roads. He only spent summers in the area. Therefore, it would not be

surprising that he would, almost 50 years later, in his mind, interpret or

remember occasional activity, or even isolated acts, as being what was

happening on a regular basis. In addition, it would not be unreasonable for a

teenager travelling on foot during summer vacations to, 50 years later,

remember footpaths as well-travelled roads. His evidence of the existence of

roads is inconsistent with the evidence of several other witnesses who lived in

the area year round that there were no roads, only footpaths. I reject his

evidence regarding the existence of well-travelled roads.

[113] Further, the presence of gates and barbed wire fences crossing what

Mr. Richie described as roadways is inconsistent with their existence as rights-

of-way.

[114] The use of any such ways by Mr. Richie and his siblings was with

permission. Thus, it would not constitute user so as to establish an easement.

Even if there had been no permission granted, in that period of time, when Mr.

Richie acknowledged the area was a quiet farming community, allowing

teenage boys to cross over to go to Highway 3 or to Oakland Lake to swim

would have been merely good neighborliness in any event.

[115] In addition, Mr. Richie is only describing a four-year period, which

happens to coincide with what appears to be a period of use by prior

haymakers. Thus, use by Mr. Richie and his siblings does not add any use to

create an easement.

Burgoyne Family

[116] Daniel Burgoyne testified that he would travel over the Olsen Lot to

go to what is now the Seaview Properties Lands, formerly the Ernst Property.

They referred to it as Jimmy’s, because Jimmy Ernst owned it. That is where

he would mainly hunt. He had permission from the owners of the Ernst

Property to hunt there. He crossed the Hutton Sales Lot mostly on foot, except

occasionally with his ATV when he needed to bring a deer home. However, as

children, growing up on the property that is now divided into the Burgoyne

Lot and the Homestead Lot, they had a minibike which they shared amongst

the five children. They took turns riding around, including over the fields and

through the woods on the Hutton Sales Lot. He did not specifically ask David

Olsen for permission to cross the Hutton Sales Lot to go to his hunting blind.

They were all relatives and it was common knowledge in their family that they

could cross with long-standing permission, which had been going on for years.

He also deposed that he and his siblings, on occasion, would cross from their

property through adjacent properties for hunting and recreational purposes.

However, that was by long-standing permission and was not on a continuous

basis.

[117] Michael Burgoyne and Richard Burgoyne were witnesses for the

Huttons. They also provided evidence of their siblings and their father’s use of

the Hutton Sales Lot and of accessing it from their property. That included

spreading manure from the chickens onto the Hutton Sales Lot through

openings in the fences. However, it was mostly recreational use. They also

confirmed that it was by longstanding permission from adjoining landowners.

[118] On cross examination, Michael also indicated that there were no

fences where they took the manure over onto the Hutton Sales Lot,

acknowledging the reference to a fence in his affidavit was erroneous.

[119] I accept that use by the Burgoyne family was by permission.

However, even if it had been as of right, it could not have created an easement

over the Burgoyne Lands to access the Olsen Lands. Their father and mother

were the owners of the Burgoyne Lands. They were under their parents

direction and control. In my view, use of property by, or under the direction or

control of the owner of that property, to access an adjacent property, does not

turn that property into a servient tenement. Thus the Burgoyne family’s use of

the Burgoyne Lands could not be taken as creating a burden on the Burgoyne

Lands in the way of a right of user by persons outside their family. At best, it

would create a right of way over the Hutton Sales Lot for the Burgoyne

family to access the Ernst Lands.

Other Foot Traffic

[120] Daniel Burgoyne acknowledged seeing people walking across the top

of the drumlin from one property to another. However, they were mostly

family. For instance, Connie Olsen would come across and visit his parents

and grandmother. The one exception he noted was Doreen Ernst or her father.

He also acknowledged that Ann Caverzan had said she had walked over his

father’s property to go to the east of it.

[121] However, Connie Olsen accessed her own property, the Hutton Sales

Lot, from the Oakland Road. She would either walk there from her residence

or park at the bottom of the hill and walk up. That practice is not in dispute.

Daniel Burgoyne also specified that Connie Olsen would only use their

driveway to visit his parents. Connie’s father was his great uncle on his

father’s side. Therefore, Connie was his father’s cousin.

[122] Ann Caverzan provided affidavit evidence in relation to walking over

the lands in question. She stated that she and her husband, Doreen Wentzell,

and Harold and Irene Burgoyne were all neighbors at the top of the hill. They

were all friends and got along very well. Ms. Caverzan often visited the

Burgoynes. The property to the East of Harold and Irene’s, i.e. the Hutton

Sales Lot, was vacant. She would walk her dog all over that property and

beyond, getting there by crossing behind Harold and Irene’s house. She and

Irene would go over there to pick holly berries. There was a worn walking

path at the top of the hill which crossed their property and the Homestead Lot,

and continued onto the Hutton Sales Lot. Many of the neighbors walked the

path. However, she did not see any roads or remains of roads on the Hutton

Sales Lot.

[123] In my view, this use was permitted by neighbourliness amongst

neighbours and friends. As such, it is insufficient to establish an easement.

[124] Even if it was, it would not create an easement to access the Hutton

Sales Lot from the driveway over the Burgoyne Lot. The worn footpath

described Ms. Caverzan crossed over onto the Hutton Sales Lot from what is

now the Homestead Lot, not the Burgoyne Lot. Though there is an express

right of way to access the Homestead Lot through the driveway over the

Burgoyne Lot, as will be discussed in further detail later, it cannot be used for

the purpose of accessing lots beyond, including the Hutton Sales Lot.

Ms. Hutton

[125] Elizabeth Hutton deposed that, starting even before the Company

acquired the Hutton Sales Lot, when it was shown to them as being available

for purchase, they accessed the lot over the Burgoyne driveway and entered

through what has been referred to as Bruhm’s Gate. She also deposed that that

she drove up the Burgoyne driveway, with a girlfriend, to access the back of

the Hutton Sales Lot when she came Nova Scotia to attend her cousins 40th

anniversary. In addition, she said stated that she walked up and down the

driveway to avoid the swamp at the northern end that the Hutton Sales Lot.

She did not specify how many times, nor whether or not she was simply

referring to the time of her initial visit of the property.

[126] On cross examination, she acknowledged and testified to the

following. She made an offer on the Hutton Sales Lot before seeing it, on

condition that she could see it to determine if it was feasible before completing

the purchase. The first time she viewed the Hutton Sales Lot, prior to her

company purchasing it, she accessed it from the Oakland Road. She parked

there, then walked up through the Hutton Sales Lot to Highway 3 and back

down to the Oakland Road. That is somewhat inconsistent with her affidavit

evidence.

[127] She also testified that when she purchased the Hutton Sales Lot she

hired Robert Becker, Land Surveyor, because she had a question about ocean

frontage. She did not hire him to determine the question of access because she

was aware of the hauling road off of the Oakland Road.

[128] She was also asked on cross examination whether, in 2002, she

understood that access to the Hutton Sales Lot from Highway 3 was by

permission. After initially providing a few evasive responses, she

acknowledged that that was her understanding. She also confirmed that it was

permission to cross the Burgoyne driveway that she was referring to.

[129] The evidence of Daniel and Elizabeth Burgoyne, and of their three

daughters, was that they never witnessed Ms. Hutton use their driveway to

access the Hutton Sales Lot prior to her purchasing the Homestead Lot. In

addition, Ms. Hutton did not tell them she used their driveway.

[130] Daniel and Elizabeth’s three daughters, Jessica, Natalie and Lilly, had

bedrooms in the upstairs of their parents’ home, overlooking the driveway.

Except for intermittent absences to attend university, and for Jessica living in

Halifax between 2008 in 2010, they lived with their parents until they moved

out to be on their own. Jessica moved out in 2013. Natalie moved out in 2005.

Lily moved out in 2012. Because their grandmother lived alone, they were

fairly vigilant in being on the lookout for traffic on the driveway heading

towards their grandmother’s home. If they noticed vehicles or people they did

not recognize, they would notify their mother or father. None of them recall

any occasion where they were concerned about unknown guests on their

driveway.

[131] However, prior to Ms. Hutton purchasing the Homestead Lot, Daniel

Burgoyne did see vehicles access the Hutton Sales Lot through the roadway

off of the Oakland Road, and work being performed on the property at, or via,

that access point.

[132] In my view this evidence shows that Ms. Hutton considered the access

to the Hutton Sales Lot to be via the access road from the Oakland Road. She

also considered any access over the Burgoyne property to be by permission.

[133] Even if that were not the case, her evidence of her use of the

Burgoyne driveway between 2002 and after she purchased the Homestead Lot

in 2012 is minimal and unfortunately somewhat vague. She described driving

up the driveway once with her girlfriend. She described her initial site visit

where she accessed the Hutton sales Lot from the Oakland Road, walked up

the Lot and walked out to Highway 3 and back down over the Burgoyne

driveway, then returned to her car at the Oakland Road. She spoke of walking

up and down the Burgoyne driveway to avoid the swamp at the northern end

of the Hutton Sales Lot. She did not state how many times, nor whether it was

during that initial visit. It would make sense that it was. So the only clear

evidence of use by her over a 10 year period is walking up and down the

driveway once, and driving in and out once. Even if she also walked it a few

more times, that in my view, is far from continuous use.

[134] In addition, it is not use that the Burgoynes knew or ought to have

known of. Further, even if they had known of her walking their driveway and

said nothing, without more, in my view, it would merely have amounted to

good neighbourliness. Therefore, this use by Ms. Hutton is not use which

would create an easement, or even contribute towards the creation of an

easement.

[135] The Burgoynes commenced their Application in 2013. It is clear that

there was not the requisite user during the twenty-five years immediately

preceding the Application. Therefore, the last part of Section 32 of the

Limitation of Actions Act does not come into play. So, there is no need for the

Burgoynes to show that the permission or agreement to use access routes was

reduced to writing.

Historical Use

[136] Consequently, whether or not the right of way easement claimed by

the Huttons was created depends upon alleged historical use of roadways

crossing multiple adjoining properties at the top of the drumlin straddled by

the various lots in the area.

[137] Robert Becker prepared a compiled plan dated January 15, 2014

showing the lands of Elizabeth Ellen Hutton and Lands of Hutton Sales

Incorporated, i.e. the Homestead Lot and the Hutton Sales Lot. An enlarged

copy was entered into evidence as Exhibit 2. Mr. Becker marked five

roadways or pathways on that plan, labeled R1 to R5.

[138] In conjunction with that Plan, he also prepared a Surveyor’s Report

dated January 27, 2014. He was qualified as an expert in the field of land

surveying, capable of giving opinion evidence on the subjects of boundary

definition, and evidence of easements, including use of aerial photography to

complete surveys. The Report was admitted into evidence as an expert’s

report. One copy was marked as Exhibit 3. Another copy was marked as

Exhibit 3A because it had better quality aerial photographs for the witnesses to

comment on.

[139] In the Report he expressed the following opinions:

“My opinion is that there was a common access road use by the series of lot owners on this drumlin to access the Bruhm lot from the Burgoyne lot.

….

The existence of the roadway leads me to conclude that there was a road in use and being enjoyed, though without legal documentation, for a period in excess of 150 years at the time of the Hutton Sales purchase of the Bruhm lot from Reidar D. Olsen.

…

Old roadway evidence and farming patterns and usage as dictated by topographic limitations, and shown historically by photographic evidence, appear to show that access to the Bruhm lot had been utilized from adjoining properties, specifically land parcels numbers 60229028 (Lot 1 of Burgoyne) and 60229176 (Seaview Properties Limited).”

[140] He had previously prepared a Plan of Survey Showing Property of

Reidar D. Olsen, dated April 3, 2002. That Plan was of the Hutton Sales Lot.

An enlarged copy of it was entered into evidence as Exhibit 10. On it he

indicated only 4 access roadways potentially affecting the property. He had

indicated the Burgoyne Driveway, though he did not show any part of that

crossing onto the Hutton Sales Lot. He showed an access roadway off of

Highway 3 at the northeastern corner of the Lot. He included the access road

from the Oakland Road, which was shown as ending near the remains of an

old barn close to the Eastern boundary with the Ernst Lands. The final one he

included was a roadway crossing over onto the Ernst Lands near the remains

of that barn at the end of the access road from the Oakland Road. He did not

indicate any roadways touching upon, heading towards or approaching the

Burgoyne Lot or the Homestead Lot, from the Hutton Sales Lot.

[141] Mr. Becker acknowledged that he was not a photogrammetrist and

that his familiarity with aerial photography was merely as one of the tools used

in survey work.

[142] He acknowledged that it is standard survey practice to try to include

everything discernible that affects, or could affect, a property, including access

roads. He testified that, in 2002, he saw nothing in the way of roadway

remnants to plot on the survey plan apart from the four that have already been

discussed.

[143] In 2002, when he prepared the survey plan, he looked at aerial

photographs to help confirm that the boundaries were consistent with what

was on the ground. He believes he had access to all of the aerial photographs

that he used for the 2014 Compilation Plan except for the 1945 aerial

photograph.

[144] In preparing his 2014 Report he also researched various deeds and

plans of survey. He found nothing expressed in deeds or wills granting any

right- of-way to the Hutton Sales Lot over the Burgoyne Lot.

[145] He did not conduct a site visit to prepare the 2014 Plan and Report.

His only site visit was 13 years prior in preparation for the 2002 Plan. Yet, he

indicated that he recalled finding rotted fence posts and pieces of wire fence.

In his 2002 Plan he had only indicated the presence of old fence posts along

the Ernst boundary at the northeastern end. Yet, 13 years later, he said he

recalled also seeing scraps of fence wire posts in the vicinity of where the

Burgoyne driveway curves away from the boundary, around Bruhm’s Gate.

His recollection was that there was not much snow on the ground. He did not

explain how he was able to remember these details if they were not marked on

his 2002 Plan. He also did not explain why he made note of the old fence posts

along the Ernst side, and not the scraps of fence and fence posts on the

Burgoyne side.

[146] In preparing his 2014 Plan and Report, he also considered the contents

of a handwritten note from David Olsen to Elizabeth Hutton dated November

22, 2012, the contents of which will be reproduced and discussed later.

Therefore, the reliability of that information impacts the reliability of Mr.

Becker’s opinion.

[147] Mr. Becker’s opinion was, at least in part, based upon the principle

that it was easier to travel in an east-west direction along the top of the

drumlin which the strips of land in the area straddle in a north-south direction.

However, he acknowledged that the Burgoyne Lot was not at the top part of

the drumlin. It was part way down the northern slope of the drumlin.

R1

[148] R1 on the 2014 Compiled Plan is the hauling road leading to and from

the Oakland Road. It is consistently referred to in the deeds for conveyances

relating to the Hutton Sales Lot as the access route to the Hutton Sales Lot.

R4

[149] R4 is a woods road located at the north-eastern corner of the Hutton

Sales Lot and leading to and from Highway 3. At the time of the purchase by

the Company of the Hutton Sales Lot it was explored for the purposes, among

others, of assessing whether third-party rights-of-way over the Hutton Sales

Lot were associated with it.

R5

[150] R5 was re-created by Mr. Becker from a 1945 aerial photograph. It

does not appear in any of the aerial photographs thereafter, which photographs

were dated in 1955, 1986, 1992 and 2001. Mr. Becker conceded that. In 1944

and 1945, the Federal Government expropriated a portion of the Hutton Sales

Lot for a radio station site and a rest hut site. Easements were also

expropriated as part of that process. They included an easement over the

existing driveway on the Burgoyne Lot and an easement for overhead pole

lines crossing the Burgoyne Lot, as well as a buried cable easement and an

overhead pole line easement over the Hutton Sales Lot. The expropriation

documents, numbered 215 and 348 respectively, were registered April 12,

1944 and April 13, 1945 respectively. I have compared the plans forming part

of those expropriation documents with the 1945 aerial photograph. In my

view, the roadway labeled R5 is clearly the roadway leading from the

driveway over the Burgoyne Lot to the radio tower. One can also see the

outline of the larger square area expropriated for the radio tower site. The

boundaries of the smaller square area expropriated for the rest hut site are very

clear on that aerial photograph. One can also see a line running obliquely from

the western edge of the Hutton sales lot, just north of the treed area at the

southern end and heading straight towards the radio tower. That line may be

an imperfection in the photograph. However, it coincides with what is noted

on one of the expropriation plans as the buried cable, indicating that it may be

evidence of the trench for that buried cable.

[151] That expropriation was abandoned. The notice of abandonment was

filed April 21, 1947. The user had been associated solely with the

expropriation. There is no aerial photograph evidence of any use following

abandonment. In my view, there is no evidence of user of R5 that establishes

use for 20 years, let alone use of a nature that could create an easement.

[152] The expropriation documents label the easement over the Burgoyne

Lot as “Parcel ‘B’ - Easement over Existing Farm Roadway for access

Roadway and Pole Lines”. The Huttons urge the Court to interpret this

reference as indicating that an easement for the benefit of the Hutton Sales Lot

over the driveway on the Burgoyne Lot already existed in 1945. However, in

my view, the reference to an existing farm roadway was just that, a reference

to the fact that the farm roadway already existed. It says nothing about

whether or not the Hutton Sales Lot already benefited from an easement over

it. The fact that the expropriation documents go on to describe in detail the

course of the way over the existing roadway, rather than simply state that the

existing right-of-way is expropriated, suggests that no such existing easement

was recognized at the time. Therefore, similarly, that reference to the existing

farm roadway in the expropriation documents is not evidence supportive of the

existence of a right of way over it for the benefit of the Hutton Sales Lot.

[153] The Huttons also highlight the plan dated February 12, 1945 attached

to the expropriation documentation. They point to the fact that: it includes a

sketch of, and reference to, a “20’ RIGHT OF WAY EASEMENT ON

EXISTING FARM ROADWAY”, which is located where the current

Burgoyne Driveway is; but, it does not include any access roadway from

Oakland Road. In my view, that does not show that they did not consider the

access road off of the Oakland Road to be an access route. They were

expropriating an easement over the existing farm roadway, not over the access

road off of the Oakland Road. Therefore, there was no need to make reference

to that other access road.

[154] The fact that the government chose to expropriate an easement over

the Burgoyne Driveway does indicate that they considered that to be the most

convenient route. However, the fact of it being the most convenient route does

not appear to be in dispute in any event.

R2

[155] R2 is located at the end of and perpendicular to R1. It runs across The

Hutton Sales Lot, perpendicular to its boundaries. It is in line with the

dwelling on the Homestead Lot. However, Becker’s Compiled Plan does not

show it as crossing onto the Homestead Lot. He testified that he did not

indicate that R2 crossed over onto the Burgoyne property because he did not

know whether it did or not. In contrast, the Plan does show R2 crossing onto

the Seaview Properties Lands. Mr. Becker testified that he did that because he

saw it on the Ernst Property but did not recall seeing it on the Burgoyne

Property. He said that it was grown up in thick bushes on the Burgoyne side.

On redirect examination he added that because it was heavily bushed, it was

hard to see anything. That is consistent with Gary Crossland’s evidence of

having to drive through the bushes with his farm machinery to get across.

[156] It would be reasonable that there would be a passageway that would

have existed at some point through to the Homestead Lot, at least at the time

when Harold Burgoyne was spreading some chicken manure from his farming

operation over onto the Hutton Sales Lot. That would appear to have been a

convenient location to cross.

[157] In addition, Ann Caverzan deposed to the existence of a footpath

joining multiple properties that crossed in the vicinity of where R2 approaches

the Homestead Lot. She noted the path continued across the Hutton Sales Lot

to the Ernst Lands. The route followed by such a path would be consistent

with R2 as sketched and as shown in the aerial photography.

[158] Gary Crossland also provided evidence that he passed through

somewhere around the Homestead Lot residence, and that he brought hay out

through the Ernst lot. R2 appears to run between the area of the Homestead

Lot residence and the Ernst lot. Further, Mr. Becker testified that, since the

area in question is all fields, roadway evidence would change quickly, and

roads would come and go as the need arose. That indicates that evidence of

roads on these fields that would be visible on aerial photographs would be

created fairly quickly. Mr. Crossland made hay from 1970 to approximately

2002. The first aerial photograph which shows evidence of R2 is the 1986

photograph. Evidence of it can also be seen in the 1992 photograph. However,

the latest photograph preceding 1986 is that from 1955. That aerial photograph

does not contain evidence of R2. Therefore, the evidence of R2 coincides with

at least part of the period of use by Mr. Crossland, and is consistent with

having been created by his passing during hay making. That begs the question

as to why it is not visible in the 2001 aerial photograph if he was still making

hay at that time. There was no direct evidence on that point. However, I note

that the grass on the 2001 photograph is a deeper color than on the 1986 and

1992 photographs. That suggests more lush growth when the photograph was

taken in 2001 which would provide a reasonable explanation for the evidence

of the roadway being hidden, particularly if it was created by Mr. Crossland’s

hay making activities. Also, Mr. Crossland testified that when he was

travelling out through the Burgoyne property he crossed over on the Burgoyne

Lot. That would not be over R2. Prior to obtaining permission from the

Burgoynes he had been taking hay off through the Ernst Lot. Disappearance of

R2 in later years is consistent with this change in Mr. Crossland’s path of hay

extraction.

[159] There is no photographic evidence that R2 existed prior to 1986. Ann

Caverzan did provide some evidence of pedestrian use for an unspecified

period of time preceding 1985. If the path was created in that fashion it

suggests that it did exist for some unspecified period of time before 1986.

However, as already discussed, its use was through permission or neighbourly

accommodation which would not create an easement. Therefore, the evidence

regarding R2 provides little or no support for Mr. Becker’s opinion of the

creation of an easement traditional use over it.

R3

[160] R3 is shown on Mr. Becker’s Compiled Plan as running from what

has been referred to as Bruhm’s Gate to what has been referred to as Jimmy’s

Gate. The location referred to as Bruhm’s Gate is at the boundary between the

Burgoyne Lot and the Hutton Sales Lot, in the northern portion of those

properties, approximately in line with the residence of the Burgoynes. R3 is

shown as running almost perpendicularly across the Hutton Sales Lot, but with

a slight curvature / deviation southward.

[161] Mr. Becker also marked the location of R3 on the 1986 aerial

photograph. It appears to be a pathway which traveled along the Wentzell

Garden and continued over onto the Ernst property. In my view, contrary to

the evidence of Mr. Becker, there is no evidence of that pathway in the aerial

photographs preceding 1986. The 1945 photograph does contain a lighter line

in the vicinity of what is shown as R3 on the 1986 photograph. However, the

1945 photograph is of very poor quality there are lines at various locations

throughout it that appear to be part of imperfections in the photograph rather

than actual marks on the ground. That lighter line may be one of those

imperfections. In any event, it hits the Burgoyne driveway at a different

location than R3 in the 1986 photo. In addition, instead of crossing the Hutton

Sales Lot at an angle which migrates southward as one crosses in an eastward

direction, as in the 1986 photo and on the 2014 Plan, the line in the 1945 aerial

photograph the crosses at an angle which migrates northward as one crosses

the Hutton Sales Lot in an easterly direction. Further, unlike in the 1986

photograph, the line does not continue over onto the Ernst property.

[162] There is evidence that the Wentzells mowed a pathway for their

garden when they had it, which was from 1983 to 1986 or 1987. That would

have created a convenient pathway for the Burgoyne’s to travel eastward over

the Hutton Sales Lot as the evidence indicated they did, thus explaining its

continuing past the Hutton Sales Lot, and explaining why it did not exist in the

photographs prior to 1986...

[163] Daniel Burgoyne described R3 as being, in his lifetime, nothing more

than a path. He stated that the deer keep it open. He did not recall having seen

fence posts for what has been referred to as the Bruhm’s Gate. He did not

recall any gates in his lifetime. He deposed that, during his lifetime, there were

no roads crossing the Burgoyne and Olsen properties. There were only trails

traveled by deer and people on foot.

[164] All of the aerial photographs, with the exception of the 1955

photograph, appear to have faint indications of a path, just to the south of R3,

which path appears to cross the Hutton Sales Lot from the vicinity of Bruhm’s

Gate in a line which appears to follow along where there are wooded or bushy

extensions from the boundaries of the Hutton Sales Lot in towards the middle

of the property. That pathway appears to be consistent with what Daniel

Burgoyne has referred to as paths which the deer keep open.

[165] Daniel Burgoyne testified that, when he crossed the Hutton Sales Lot

he did so wherever he felt like it. To get to his deer blind on the former Ernst

Property, he crossed at a location approximately halfway between what is

shown on the Becker Compiled Plan as R3 and R5

[166] Daniel Burgoyne deposed that there never was access to the Hutton

Sales Lot through the Burgoyne Lot via Bruhm’s Gate.

[167] Gary Crossland did not recall seeing any roads over the Hutton Sales

Lot, or the Ernst property to the East, nor the remains of any such roads, when

he was cutting hay there, with the exception of the access road to the Hutton

Sales Lot off of the Oakland Road. He made hay there for around 30 years. So,

he had ample opportunity to observe.

[168] Michael Burgoyne deposed that there were fence posts at Bruhm’s

Gate, and that it was used as a point for Daniel Burgoyne and the rest of the

family to access the Hutton Sales Lot from the driveway to their father’s

house. On cross examination, he testified that he never saw a gate at the point

that they called Bruhm’s Gate and he could not remember seeing a post or

anything there. He said he recalled hearing that there were remnants of fence

posts. However, he did not recall seeing any. He also agreed that you could not

cross with a car. You could only do so with a tractor, minibike or off-road

vehicle. Further, he stated that they stayed mostly on the top of the hill and

crossed by the chestnut tree near the family home. That would not have been

at Bruhm’s Gate.

[169] On cross examination he agreed that trees and bushes separated the

properties and got bigger over the years.

[170] Michael acknowledged that he moved out of his parents’ home around

1984. He did take responsibility for his mother’s care when she fell ill in the

late 1990s, after his father had passed. However, he acknowledged that,

because he worked full-time, he arranged for her to have home care. In

addition, other ladies stayed with her for extended periods of time. Thus his

ability to observe what was happening became diminished.

[171] In contrast, Daniel went from living in his parents’ home, to living in

the home he built himself on the lot subdivided from the property his parents’

home was on. Thus, he lived on the property his whole life and, as such, had a

better opportunity to observe what was happening.

[172] That, coupled with Michael’s inconsistency, which even includes

inconsistency regarding seeing posts at Bruhm’s Gate, renders Michael’s

evidence less reliable than that of Daniel.

[173] Ms. Hutton also deposed to use of the purported access points to the

Hutton Sales Lot prior to her involvement with it. However, she acknowledged

that she had obtained that information from others. Some of those sources of

information testified. Her evidence did not add anything. Any information she

obtained from unidentified sources is of no value as its reliability cannot be

assessed. Similarly, the reliability of any information she obtained from

identified sources who did not testify could not be assessed. Further, it was not

shown that they could not testify such that evidence of what they said would

be necessary.

[174] Richard Wentzell, who was born in or about 1956, deposed to the

following. When he was young, he and his family lived about 500 metres from

Harold and Irene Burgoyne’s home. They were family friends and he spent

quite a bit of time at their home. When he was about 15 years old, he worked

for Harold in his chicken farming operation. Throughout his life he has always

known the Hutton Sales Lot to be vacant land. He recalled hay being cut off of

it and Connie Olsen having a small garden. He also recalled Lorraine Wentzell

having a garden by Highway 3 and keeping a track mowed with his

lawnmower along the bottom of the garden. He stated that Harold Burgoyne

kept his property lines up but allowed neighbors across his property to get to

the Hutton Sales Lot and beyond. However, Mr. Wentzell was not aware of

any roads or logging trails over the Hutton Sales Lot. Mr. Wentzell, like Mr.

Crossland, Mr. Kaulback, and Ms. Caverzan, has no personal interest in these

proceedings and is not related to anyone with a personal interest in them.

[175] Reidar David Olsen, known as David Olsen, acquired the Hutton

Sales Lot in 1986 from his mother, Mary Constance Olsen, also known as

Connie Olsen. In 2014, he deposed that which follows in relation to this

property.

[176] To his knowledge, there have historically been four crossing points or

gates from the Burgoyne Farm to the Hutton Sales Lot. The old hauling road

ran from various points on the Hutton Sales Lot and came out to the driveway

on the Burgoyne Lot. He did not recall the crossing names. However, he stated

that “Jimmy’s Gate” was a crossing to the Hutton Sales Lot. Aerial

photographs that he has seen show various roads crossing the hill in the area of

the Olsen and Burgoyne properties, and joining the Burgoyne property. All

farm equipment, vehicles and persons exited over the Burgoyne driveway to

Highway 3. This was always the regular means of access to and from the

Hutton Sales Lot during his ownership and that of his mother and

grandmother. They did not access the upper part of the Lot from the Oakland

Road because it was too steep for motorized vehicles. To his knowledge, the

crossing points existed for the owners of adjacent lands on the drumlin to get

their crops to Highway 3 as a form of mutual neighbourly accommodation.

There was no interference by the Burgoyne family. He recalled “vividly” that

the roads were used by Harold Burgoyne’s family with carts, hay wagons and

farm machinery, and for heavy commercial purposes. They freely crossed

from one farm to the other. The Olsens accepted Harold Burgoyne spreading

chicken manure on the Hutton Sales Lot. They permitted Wilfred Wentzell to

have a large vegetable garden on the Hutton Sales Lot. In later years, they

allowed David Aulenback and Steven Barry to fertilize and harvest hay from

it. To his knowledge, whoever owned the Hutton Sales Lot had the use of the

“Burgoyne Hauling Road from Highway #3 to the first crossing, located

across the road from the home of Daniel Burgoyne”. His grandfather, Delmar

Burgoyne, related to him and that he and his brother Harvey (predecessor to

Harold) had a verbal agreement that such use could be made of that crossing.

This agreement was common knowledge amongst the owners of both farms,

and never interfered with.

[177] In a handwritten note to Ms. Hutton, dated November 22, 2012, David

Olsen stated:

“This historical narrative is freely written regarding right of way’s and crossings from the Olsen Burgoyne Bruhm farm to the Burgoyne farm. To the best of my knowledge there are 4 crossing points/gates from the OBB farm to

the Burgoyne farm. Crossing points also exist from the OBB to the adjacent Ernst farm. The OBB hauling road runs from the Oakland Road to a crossing/gate giving access from the OBB to the Burgoyne farm. Right of ways existed for the use of ox carts, hay wagons and farm machinery to freely cross from one farm to another, since the earliest days. This also includes the use of motorized vehicles. To the best of my knowledge whoever owned the OBB had the use of the Burgoyne Hauling Road from Highway #3 to the first crossing, located across the road from the home of Danny Burgoyne. This verbal agreement was between my grandfather Delmer Miles Burgoyne and his brother Harvey Burgoyne, the owner of the Burgoyne Farm. This verbal agreement was related to me directly, by my grandfather DMB. This verbal agreement was common knowledge amongst the owners of OBB, my grandmother – Muriel LW (Bruhm) Burgoyne my mother – MC Olsen (daughter of DMB) Last Family Owner – REIDAR DAVID OLSEN”

[178] It is apparent that a portion of David Olsen’s 2014 affidavit was

prepared essentially directly from this handwritten note.

[179] On cross examination David Olsen testified as follows.

[180] He moved to Halifax in the early 1980’s. However he owns the

residence at the intersection of the Eisenhauer Road and the Oakland Road

which formerly belonged to his mother. He claims that to be his permanent

principal residence. He agreed that, from that residence one cannot see the

Burgoyne Lot. He never lived on the Hutton Sales Lot.

[181] David Olsen conveyed the Hutton Sales Lot to the Company by deed

dated April 8, 2002. On that same day, he made a statutory declaration

regarding the property. He was represented by William Nearing in that

transaction. The Company was represented by John Chandler, Q.C.

Correspondence between those two lawyers was entered into evidence as

Exhibit 8. There are letters dated March 8 and March 26, 2002 from Mr.

Chandler to Mr. Nearing. There is a letter dated March 11, 2002 from Mr.

Nearing to Mr. Chandler. There is a further letter from Mr. Chandler to Mr.

Gosine, who was indicated on Mr. Nearing’s letterhead as being a member of

his firm. Due to a Post-it flag having been placed on that letter, and only a

copy of same having been available, the date of that letter is not visible.

However, the content of the letter makes it clear that it preceded the property

closing.

[182] The letters in Exhibit 8 raise a number of issues, including an issue

relating to the road crossing the Hutton Sales Lot, at its northeast corner, from

Highway 3, to provide access to the Ernst Lot. The correspondence also

indicates that Mr. Nearing would obtain the statutory declaration from Mr.

Olsen to the effect that the use of the road was with permission. Mr. Olsen

testified that it was a logging road which ran across several properties through

the backwoods and which anyone could use by common courtesy. People

would ask his grandmother, Muriel, if they could cross over her land, which

was the Hutton Sales Lot, by Highway 3, to the north of the swamp.

[183] Mr. Olsen confirmed that he wrote the handwritten letter to Ms.

Hutton in 2012. He also confirmed that he did not recall having any dealings

with Robert Becker prior to 2012.

[184] The letter in Exhibit 8 from John Chandler to Mr. Gosine also states:

“Not only is it important that Mr. Olsen describe the use of the hauling road which appears from the L.R.I.S. plan to be on the Halifax side of the swamp and provide access only to the property immediately to the south, but I am wondering if he has any recollection of any other access roads to the property and, in particular, the road shown on the L.R.I.S. plan which appears to be at or near the north boundary line of the Olsen property. It appears that the swamp is a natural impediment running the full width of the Olsen property. Without enshrining it in a statutory declaration, I would like to know if there were any other historic routes of access that Mr. Olsen or his predecessors in title may have used to get to the portion of the property west of the swamp to Highway 3 crossing adjacent properties.”

[185] It is noteworthy that Mr. Olsen waited until 2012 to provide this

information which was requested in 2002. Ms. Hutton was conveyed the

Homestead Lot in April 2012 and the handwritten note from Mr. Olsen is

dated November 2012. By then, the Burgoynes had already made the Huttons

aware that they did not want their driveway being used to access the Hutton

Sales Lot. In addition, on August 15, 2012, the Burgoynes had gone to the

Homestead Lot to meet with Ms. Hutton and her husband, Brian O’Kane.

During that meeting, Ms. Hutton and her husband stated that they had been

told by their lawyer that they could do whatever they wanted, and go wherever

they wanted, once they were on their own land. They specified that they did

not have to use the Oakland Road access to the Hutton Sales Lot. That

indicates that the preparation of that note was associated more with Ms.

Hutton looking for information to support being able to access the Hutton

Sales Lot from the Homestead Lot and/or the Burgoyne Driveway than with

pre-existing rights of way to the Hutton Sales Lot. If the existence of the rights

of way to the Hutton Sales Lot had been important to Ms. Hutton, separate and

apart from her ownership of the Homestead Lot, one would have expected her

to not wait a full decade before pursuing that information, particularly when

the lawyer who represented her Company on the purchase of the Hutton Sales

Lot in 2002 had already raised the importance that information in a letter

which was shown as having been sent to her. This timing issue ads to the

reliability concerns that arise from the different emphasis which Mr. Olsen

placed on the issue of permission depending upon whether the roadway in

question burdened the Hutton Sales Lot or benefited it.

[186] In relation to the logging road crossing the northeastern corner of the

Hutton Sales Lot, Mr. Olsen indicated that specific express permission would

be sought from his grandmother. In relation to the Burgoyne Driveway, or the

roadway leading to Highway 3, he indicated that there was an understanding

regarding use. That difference in emphasis appears self-serving. The logging

road at the northeastern corner, according to the plans, barely infringes upon

the Hutton Sales Lot. Mr. Becker said it “grazes” it. It is in a wooded area,

north of an impassable swamp, which was not used by the owners of the

Hutton Sales Lot. It would seem unlikely that specific express permission

would be sought in that location and not for passage over a driveway to a

residence passing through the used portion of the lands encompassing that

residence and being wholly situated on those lands.

[187] At one point, he testified that the hauling road off of the Oakland

Road which serves as an access point to the Hutton Sales Lot crossed over to

the Homestead Lot, staying on the south side of the hill (i.e. not going over to

the Highway 3 side of the hill, where the Burgoyne Lot is located).

[188] When asked on cross examination to point out the hauling road in

relation to which his grandfather Burgoyne had reached an understanding for

mutual use with his brother, he pointed, on Exhibit 2, to the hauling road

intersecting with the Oakland Road. He stated that it continued up along the

Ernst property and then shot across, where R5, on Exhibit 2, intersects the

Burgoyne Driveway. He referred to the whole thing as the hauling road. Then

he added that his grandfather and Daniel Burgoyne’s grandfather had an

agreement they could use the Burgoyne Road through a portion that was

between R5 and up further where one could cross over onto the Hutton Sales

Lot. In relation to both agreements, he expressed the understanding that, if he

sold the property, those roadways would also be available for the buyer’s use.

[189] Yet, he testified that he himself was not on that hauling road

purportedly crossing over onto the Burgoyne Lot. Instead, he said that the

people they hired were. He said that is how they got to where they had to go.

He admitted that they did not use the northern portion. He did not specify who

they hired or what they did. The only specific evidence presented of someone

working for the Olsens is that of Robert Kaulback, who indicated they

accessed the property from the Oakland Road. In addition, Mr. Olsen

acknowledged that he did not see what was happening on the north side of the

Hutton Sales Lot. His understanding is limited to what other people told him.

[190] On further questioning, he added that the crossing points were

openings in the bushes but not thoroughfares. People would pass on foot or

with equipment, but there was no driving across between the two properties.

[191] Mr. Olsen testified that his grandfather passed away in 1963, when he

was 17 years of age. He recalls a conversation with his grandfather in which

his grandfather had told him about the agreement with his brother. He

indicated that the conversation had taken place because land was important in

their family.

[192] He also testified that his mother was particular about her land and

that, in their family, the idea of needing to get permission existed. He added

that everyone traversing had the permission to be there. People were

welcomed if it was easier for them to access through a certain route.

[193] Daniel Burgoyne’s evidence highlights the following points which

call into question the credibility and reliability of David Olsen’s evidence. Mr.

Olsen has not resided in Oakland since a very long time ago, Mr. Burgoyne

estimated about 48 years. The home he owns in Oakland is not his primary

residence. He only came to Oakland to visit his mother and grandmother on

occasion, or to attend antique auctions. His mother, Connie Olsen, used the

access road off of the Oakland Road her whole life to travel to and from her

garden and birds on the Hutton Sales Lot. Connie hired him twice to keep the

road open. The home Mr. Olsen lived in prior to moving to Halifax, and

continues to own, has no view of any part of the Burgoyne Driveway, nor the

field in question. Thus, he could not have observed crossing activity between

the Burgoyne Lot and the Hutton Sales Lot.

[194] Similarly, Robert Kaulback, who is slightly older than David Olsen,

deposed that Mr. Olsen left the area in the 1980’s and, apart from a few visits

to his mother, was not in the area very much. Mr. Kaulback helped Connie

Olsen take care of her geese and ducks on the Hutton Sales Lot when he was a

child. When he accompanied Connie to their garden on the Hutton Sales Lot

they walked up the old driveway from the Oakland Road. He is not aware of

Connie Olsen or anyone else ever claiming a right of way over the Harold

Burgoyne property to gain access to the Hutton Sales Lot.

[195] I accept that Mr. Olsen has been living in Halifax since at least the

1980’s and has spent little time at the home he owns in Oakland. There was

nothing in his evidence to indicate otherwise apart of his characterization of

his Oakland house as his permanent primary residence. I find that

characterization to be inaccurate and misleading. In contrast with David Olsen,

Daniel Burgoyne and Robert Kaulback lived in Oakland their whole life.

[196] I also have a significant concerns regarding the reliability of Mr.

Olsen’s statement that his grandfather told him that anyone who bought the

Hutton Sales Lot would have the benefit of access to Highway 3 over the

Burgoyne Lot. These concerns arise for the following reasons. The

conversation took place when Mr. Olsen was 17 years of age or less. That was

over 50 years ago. The reason his grandfather was discussing the land with

him was because the land was important to the family. It had been in the

Burgoyne family since at the time of, or shortly after, the initial Crown grant,

and since 1782 at the latest. The agreement was between two Burgoyne

brothers. In those circumstances, in my view, it does not make sense that Mr.

Olsen’s grandfather would make any comment to encourage, or even condone,

sale of the land outside of the family. He may have told Mr. Olsen that

whoever ended up with the land should have the benefit of this agreement.

However, such a comment, in my view, would only reasonably have been

made on the understanding that the person ending up with the land would be a

family member. The subsequent wills and conveyances, up until David Olsen

sold to the Company, all devised or conveyed to family. That supports this

interpretation. In my view, more likely than not, Mr. Olsen remembered the

conversation in that way so as to justify his being the first to convey the land

to someone outside of the Burgoyne family / relatives. More likely than not,

his grandfather was telling him that this access agreement existed amongst,

and should continue to extend to, family.

[197] Michael Burgoyne, on cross examination, was asked whether he saw

any of the Olsens crossing over her from his family’s property. He responded

that, occasionally, David Olsen came to see his sister. However, he would not

generally walk over. He would drive his vehicle around from the Oakland

Road to Highway 3 and drive up the driveway. Though David may have

walked over at times, David did not traverse the boundary as Michael and his

siblings did as children.

[198] Mr. Olsen admitted lacking firsthand knowledge of his assertions. He

did not have the ability to observe many of the points he provided evidence on.

He acknowledged some of his assertions were based upon having viewed the

aerial photographs. There was significant inconsistency in his evidence. It is

clear that, for the most part, his assertions are based upon assumptions and

speculation. In addition, in my view, he has generally slanted and exaggerated

his evidence in a way to lend support to the party he sold his land to.

[199] Therefore, I find that the information from Mr. Olsen regarding the

extent of usage of access points over the Burgoyne/Olsen Boundary, upon

which Mr. Becker relied, is unreliable

[200] Mr. Becker’s conclusions regarding traditional use are not borne out

in the aerial photograph evidence.

[201] He has no expertise as a historian. As such, his evidence of use dating

back 150 years is mere speculation.

[202] Even if such historical routes of passage existed, there is no evidence

that they were used as of right, as opposed to by permission. Evidence of

permission or agreement amongst the Burgoyne family and their relatives was

pervasive in this proceeding. Burgoyne family and relatives owned all of the

lands in question from in or before 1782 to 2002. Therefore, it is more likely

that use was by permission or agreement, than that it was as of right.

[203] Further, on cross examination, Mr. Becker testified that, in indicating

roadways on his 2014 Compilation Plan he was not saying there was any

particular place that was used as a common road. He indicated that there were

several places where persons traveling east and west were able to cross. He did

not mean to single out any specific road. In his view, there were multiple

crossing points.

[204] In my view, even if the requisite historical use, without permission,

had been established this would run contrary to the establishment of an

easement. A right-of-way easement generally follows a recognizable route.

Comment on User Evidence as a Whole

[205] In my view, for the reasons noted, the user evidence as a whole fails

to establish the creation of any right of way over the Burgoyne Lot for the

benefit of the Hutton Sales Lot by way of prescription under the Limitation of

Actions Act, or the doctrine of lost modern grant.

[206] I pause to note that, if easements to cross the Hutton Sales Lot at R3

and R5 existed, as suggested by Mr. Becker, it would greatly disrupt the

ability of the Huttons to carry on their haskap farming operations on the

Hutton Sales Lot. They would have to keep the crossings clear, interfering

with the rows of berries that have already been planted, as well the

polypropylene fencing and canopy netting that have been installed to keep out

wildlife. The portion of the Hutton Sales Lot that has been planted in haskap

plants cuts off both of those marked roadways.

[207] The Huttons, in their pre-hearing brief, cited, as examples of case law

describing the doctrine of lost modern grant and/or supporting the existence of

an easement in the case at hand: Balser v. Wiles; Goulden v. Krimbell;

Mason v. Partridge; and, Shea v. Bowser. I make the following brief

comments in relation to these case references. In Balser v. Wiles there was no

indication of an initial agreement or a permission, and in Mason v. Partridge it

was found that there was no permission requested or given. This lack of

permission or agreement is a significant feature which distinguishes these

cases from the case at hand. Shea v. Bowser does not deal with the Doctrine

of Lost Modern Grant. It deals with an expressed grant of right-of-way and a

right-of-way by necessity. The Doctrine of Lost Modern Grant is discussed

in Kimbrell v. Goulden. However, I note that the appeal was granted on the

basis that the ownership of the servient tenement was in dispute and the other

potential owner had not been given notice of the proceeding.

[208] At page 5 of their post-hearing brief, the Huttons referred to the case

of Langille v. Tanner, [1973] N.S.J. No. 202. They highlighted the similarities

between that case and the case at hand. For instance, like the case at hand, it

involved, as described in the Hutton brief, “adjacent long narrow properties, a

road along the shore, and a public highway at the rear” with a roadway which

“traversed several of the lots” and provided a convenient means of travel. In

that case, the Court found that a right-of-way easement had been created under

the doctrine of lost modern grant and based on use in excess of 40 years under

the Limitation of Actions Act.

[209] However, in my view, the evidence of the nature and use of the

roadway in Langille was significantly different from that in the case at hand.

There was direct, firsthand evidence that the roadway existed in the same

consistent location and was used continuously for more than 60 years. It was a

clearly defined gravel road that was open to use by all and used regularly by

all, including with cars and other motor vehicles. The Court accepted the

evidence of the user as of right without permission. There were no gaps or

interruptions in user until shortly before the action was started, when the

plaintiff blocked the road. Therefore, the requirement for written permission in

the Limitation of Actions Act applied, and no such written permission existed

in relation to the dominant tenement in question.

[210] Therefore, in my view, it is appropriate that a different result obtain in

the case at hand.

ISSUE 2: WHAT IS THE SCOPE OF THE EXPRESSED RIGHTS-OF- WAY OVER THE BURGOYNE LOT FOR THE BENEFIT OF THE HOMESTEAD LOT?

[211] The 1986 deed for the Burgoyne Lot into the Burgoynes, from Daniel

Burgoyne’s father, expressly reserves two rights-of-way. One is a 15 foot

right-of-way along the Burgoyne driveway described as being “a free and

uninterrupted right-of-way for use at all times and for all purposes by the

Grantor, his heirs, executors, administrators and assigns”. The other is a 66

foot wide right-of-way following along the eastern boundary of the Burgoyne

Lot and running between the Homestead Lot and Highway 3. It is described in

the same way.

[212] In Malden Farms Limited v. Nicholson, [1956] O.R. 415-423 (C.A.),

the Court dealt with a conveyance of property “together with a right-of-way

for the Grantees, their heirs and assigns over and upon the land shown on each

of the plans hereto attached”. A plan was attached setting out the right-of-way

and prior grants of it. The Court found that the right-of-way had been granted

for personal use and that use of it for access to commercial operations

increased the legitimate burden. The commercial purpose was a beach resort.

The Burgoynes highlighted the following passage cited in Malden Farms

from Toddrick v. Western National Omnibus Co., [1943] CH 190:

In considering whether a particular use of a right of this kind is a proper use or not, I am entitled to take into consideration the circumstances of the case, the situation of the parties and the situation of the land at the time when the grant was made … , and in my judgment a grant for all purposes means for all purposes having regard to the considerations which I have already mentioned.

[213] The Burgoynes argue that this passage supports this Court inquiring

into the situation of the parties and the situation of the land at the time when

the grant was made even though the grant in the case at hand is a grant for all

purposes.

[214] However, it is important to note the reference in Malden Farms to the

comments from Robinson v. Bailey, [1948] 2 E.R. 791, in relation to this

passage from Toddrick, which comments are as follows:

While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a principle which must not be allowed to carry the court blindly. Obviously the question of the scope of the right of way expressed in a grant or reservation is prima facie a question of construction of words used. If those words are susceptible of being cut down by some implication from surrounding circumstances, it being, to construe them properly, necessary to look at the surrounding circumstances, of course they would be cut down. Todrick’s case is a very good example of the sort of application of the rule which Farwell J. was enunciating.

[215] Consequently, it is not in all cases where there is a grant for all

purposes that the Court will have to consider circumstances of the case, the

situation of the parties and the situation of the land at the time when the grant

was made.

[216] In Pearsall and Pearsall v. Power Supermarkets Ltd., 1957

CarswellOnt 224 (H.C.J.), the Court dealt with a right-of-way for “all ordinary

and usual purposes” in relation to a small house and cottage. It was agreed

that it was potentially land which could be used for business purposes. The

owner of the house/cottage lot also became the owner of the neighbouring

property, upon which there was a store. The store was extended into the

house/cottage lot. It being impossible to separate the use of the right-of-way

for the house/cottage strip from its use for the store extending into it, an

injunction from use of the right-of-way was granted in connection with both

the house/cottage strip and the store lot. In support, the Court in Power

Supermarkets cited the following law from Purdom v. Robinson (1899), 30

S.C.R. 64, at page 71, which states:

That a right of way granted as an easement incidental to a specified property cannot be used by the grantee for the same purposes in respect of any other property is shown by many reported cases of which two cited by the respondent may be particularly referred as establishing the proposition. In Skull v. Glenister, 16 C.B.N.S. 81, this was one of the questions decided and Erle C.J. says:

‘This right of way was appurtenant to the land demised by the Wheelers to the defendants. The defendants are therefore bound to make use of this way for purposes exclusively connected with their holding of these demised premises.’`

[217] In Tully et al v. Skrabk, 2003 MBQB 134, the Court dealt with a

situation where, when the right-of-way was granted, the dominant tenement

owner was involved in grain farming. They changed their operation to a U-

pick berry business and a market garden business. The right-of-way in

question was a right-of-way “simpliciter” and did not expressly limit the use

which could be made of it. However, the Court found that the new operation

greatly increased the vehicle traffic over the right-of-way.

[218] At paragraphs 20 to 22, the Court stated and concluded as follows:

“[20] The following statement from Halsbury's Laws of England (4th ed., Vol. 14), at p. 26, quoted by the British Columbia Court of Appeal in Granfield, supra, is particularly applicable to this fact situation:

The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances. Consequently, if those circumstances are subsequently altered so that there is a radical change in the character or identity of the user or of the Dominant Tenement, the altered user cannot be justified. However, a mere increase in user is unobjectionable, unless the Dominant owner will not necessarily be limited to the precise circumstances actually in existence at the time of the grant. The distinction is between a mere increase in user and a user of a different kind or for a different purpose, evolution or mutation. Where the terms of the grant are wide enough to permit user for a new and different purpose, the extent of the user must not exceed what was contemplated at the time of the grant, and must not interfere with the right of others.

In Granfield, supra, at para. 49, the British Columbia Court of Appeal went on to state:

In my opinion, it is right, however, in principle, to hold that the grantee of a private right of way or its successors in title, whether that successor is a private person or a public body such as the respondent, cannot turn it into a public right of way. ...

[21] The evidence before me satisfies me, on balance, that the applicants' use of the right-of-way or easement in question over the respondent's land is "excessive" during the "u-pick" season, which, for purposes of certainty and based on the evidence, I find to be from June 15 to August 7 of each year. This particular use by the applicants and their licencees, invitees, and (or) customers goes far beyond what was reasonably contemplated by the parties to the easement agreement in 1985 and, in my opinion, constitutes the "radical change in the character or identity of the user" as cited from Halsbury's, supra.

[22] Accordingly, I find and declare that the easement or right-of-way in question is, in essence, a private right-of-way (not for commercial purposes beyond those enterprises that existed prior to the agreement). The applicants have no right to hold out to any person or persons by any means whatsoever that the said right-of-way is other than a private right-of-way on private land. They have no right to permit or allow any persons to use the right-of-way in a manner inconsistent with a private right-of-way. I pause to note that the evidence of excessive use (which I have accepted) relates only to the "u-pick" season, supra. Either party remains at liberty to apply for whatever declaration or relief they deem appropriate with respect to the continued use of the easement by the applicants for other purposes at other times. …

[219] Of course, the right-of-way in the case at hand is not a right-of-way

simpliciter. It is a right-of-way for all purposes. That distinguishes it from Tully.

[220] In Knock v. Fouillard, 2007 NSCA 27, the Court, at paragraph 27,

discussed three principles governing interpretation of conveyances. In relation to

the third principle, it stated:

[27] ….

(c) Third, the court’s first task is to determine whether an unambiguous intention is manifested objectively by the words of the deed, not by the parties’ subjective wishes, motives or recollections. The primary source is the document, not the psyche. Fridman, p. 15 states:

Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is concerned not with the parties’ intentions but with their manifested intentions . . .

Sometimes it is a simple matter to decide what the parties have manifested to each other, and consequently, whether they have agreed and if so, upon what. This is especially true where a document containing their agreement has been prepared and signed by the parties. If the plain wording of the document reveals a clear and unambiguous intent, it is not necessary to go further.

In the process of interpretation, a court may not utilize the parties’ subjective wishes, motives or intent to alter the unambiguous and objectively manifest intent in the deed’s wording. Fridman, pp. 443-4 and cases cited; Hawrish v. Bank of Montreal, [1969] S.C.R. 515 at p. 518-520; Bauer v. Bank of Montreal (1980), 110 D.L.R. (3d) 424 (S.C.C.) at p. 432; Anger v. Honsberger ¶ 17:20.30(a) quoted below at ¶ 60.

[221] At paragraph 60, the Court expanded, stating:

[60] Absent a direction from the words in the deed, the court may draw assistance to resolve ambiguity from the surrounding circumstances at the time of the deed’s execution. Anger and Honsberger, ¶ 17; 20.30(a) summarizes the approach to determine the extent of a right-of-way by express grant:

. . . The nature and extent of a right-of-way created by an express grant depends on the proper construction of the language of the instrument creating it. The following rules apply in interpreting the instrument: (1) The grant must be construed in the light of the situation of the property

and the surrounding circumstances, in order to ascertain and give effect of the intention of the parties.(2) If the language of a grant is clear and free from doubt, such language is not the subject of interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant.(3) The past behaviour of the parties in connection with the use of the right of way may be regarded as a practical construction of the use of the way. (4) In case of doubt, construction should be in favour of the grantee.

[222] In addition to informing interpretation of the scope of an ambiguous

conveyance of a right-of-way, the circumstances surrounding the execution of

the conveyance can also be used to assess whether a change in use of the right-

of-way remains within its reasonable scope. In Sunnybrae Springbrook

Farms Inc. v. Trent Hills (Municipality), 2010 ONSC 123, affirmed on

appeal, 2011 ONCA 179, at paragraphs 93, 94 and 98 to 99, the Trial Court

stated:

[93] The plaintiff argues that Sunnybrae Lane is overburdened by the year round use. Overburdening of a right-of-way occurs when it is used excessively or significantly beyond the rights and nature conveyed in the grant of easement. Such an overburden may be restrained by injunction: Malden Farms v. Nicholson, [1986] O.R. 415; Bell v. Marsh, [1951] 3 D.L.R. 486 (Ont. C.A.); Gordon v. Regan, (1985) 1985 CanLII 2230 (ON SC), 49 O.R. (2d) 521; Granfield v. Cowichan Valley, [1996] B.C.J. No. 261; Miller v. Tipling, (1918) 43 D.L.R. 469 (Ont. C.A.).

[94] The court must look not only to the instrument creating the easement, but at all circumstances present at the time the easement was made in order to determine its extent and nature: Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] 1 S.C.R. 49.

….

[98] I am mindful of the words of Kellock J. in Laurie v. Winch, supra: “With respect to the nature and extent of the easement granted, it is to be observed that the grant is one of a right-of-way simpliciter with no express restriction as to use.” He went on at 58 to hold:

In the case at bar, while the Smith lands were, at the date of the grant, being used for agricultural purposes, there was no reason why they might not subsequently be subdivided into building lots as had been the case with the original part of the farm with respect to which plan 103 had been registered, and I cannot think that it is to be said that it was within the contemplation of the parties to the conveyance of 1925 that the farm would always remain a farm. I think, therefore there is nothing in the circumstances to restrict the plain words of the grant to the use being made of the farm lane at that time.

[99] The Supreme Court here noted that the use of land can change. The issue is whether the change goes beyond the reasonable ambit of the right-of-way. If the issue between the parties was over the year round use of the deeded right-of-way on Plan 104, I would have had no hesitation in finding that such use would not be inconsistent with the purpose of the right-of-way and would not overburden it. I find that the available data do not support the plaintiff’s submission that only a seasonal easement was created over the deeded right-of-way on Plan 104.

[223] The Court in Knock v. Fouillard had to address the argument that the

deed in question only conveyed a right-of-way if a prior prescriptive easement

existed. The Court had no difficulty in dismissing that argument, without

looking at information extraneous to the wording of the deed. The wording of

the deed, considered in its totality, clearly manifested an intent to convey a

right-of-way for all purposes. It contained no reference to pre-existing rights.

It did not make any such a pre-existing rights a condition precedent. The Court

concluded that the deed clearly granted the right-of-way in question.

[224] However, in discussing the mode and extent of the right-of-way, the

Court emphasized that there is a distinction between a right-of-way’s purpose

and its mode of usage. Therefore, the grant of a right-of-way expressed as

being for all purposes does not necessarily import any and all modes of usage.

The Court concluded that the right-of-way in question was limited to modes of

usage which did not involve motor vehicles.

[225] In my view, a similar distinction can be drawn between the purpose of

a right-of-way and the nature of a right-of-way. For instance, a right-of-way

may be used for residential purposes only, with commercial purposes being

prohibited. However, a right-of-way that can be used for both residential and

commercial purposes, can be either of a private nature or of public nature.

Such a right-of-way of a public nature would be open to free access by

members of the public attending an establishment such as a store or market to

purchase produce or goods. In contrast, a right-of-way for a commercial

purpose, but of a private nature would not permit access by general members

of the public in this fashion.

[226] The reservation of right-of-way in the case at hand clearly and

unambiguously states that it is for all purposes. In my view, that includes

commercial purposes.

[227] In case I am in error in concluding that the right-of-way reservation

was clear and unambiguous in including commercial purposes, I will examine

the circumstances existing at the time of the 1986 deed to assess whether they

reveal an intention that the right-of-way include commercial purposes.

[228] The grantor of the Burgoyne Lot, Daniel Burgoyne’s father, had fairly

recently been involved in a fairly large-scale commercial farming operation on

the property that he retained, i.e. the Homestead Lot. The 1986 aerial

photograph shows the barns still in existence. In my view, more likely than

not, Harold Burgoyne intended to reserve a right-of-way which would permit

such commercial farming operations to restart in the future. It is difficult to

imagine that he would want to foreclose that possibility in the future. In

addition, it is undisputed that he reserved a 66 foot wide right-of-way to

permit further development and subdivision. This is a further indication that a

commercial purpose was intended. Further, any ambiguity on that point needs

to be resolved in favor of the grantee of the easement. Even though the

easement was created by a reservation in the case at hand, case law has still

interpreted the person reserving the right-of-way as being the grantee of the

right-of-way. In my view, these circumstances show that the right-of-way is

intended to be for purposes which include commercial purposes.

[229] The Burgoynes suggested that, even if the right-of-way was reserved

for purposes which included farming operations on the Homestead Lot, it

would improperly expand the burden on the Burgoyne Lot if those farming

operations included bringing in workers over the driveway. However, the

evidence was that Harold Burgoyne’s farming operation did have such

workers. Therefore, I must reject this suggestion. In my view, if the Huttons

did have legitimate farming operations on the Homestead Lot, the bringing in

of workers for that operation would not expand the use of the right-of-way

beyond its intended scope.

[230] In my view, the wording of the express reservation of easement is

ambiguous in relation to the nature of the right-of-way. It does not specify

whether it is limited to use of a private nature or whether it can extend to use

by the general public. Therefore, in my view, it is appropriate to look at

extraneous information to determine that nature.

[231] Elizabeth Burgoyne, at paragraph 16 of her affidavit, deposed that the

15 foot wide right-of-way was “the road historically used by the Burgoyne

homestead as a private road connecting it to the Public Highway 3”.

[232] Elizabeth Burgoyne and Daniel Burgoyne agreed that his father’s

poultry operation only ceased around 1980. It was a substantial commercial

poultry operation, with a quota, at one point, as high as 15,000 birds. Daniel

also, in his affidavit, at paragraph 8, conceded that his parents reserved the 66

foot right-of-way “in the event the homestead was further developed and

subdivided”.

[233] However, there was no evidence that the driveway to the Homestead

was ever used provide access to the general public attending, such as to

purchase produce or goods. There was evidence of trucks attending to carry

birds off to market or to extract manure. I infer that food and other supplies for

the chicken farming operation had to be delivered. It is unclear whether the

Burgoyne family trucked those items in themselves or not. However, even if it

was the suppliers who trucked them in, that, in my view, would still not

constitute access by the general public. Access to the Homestead was still

limited to persons requested or permitted to attend the premises. It was never

open to the general public.

[234] Those circumstances, and the evidence of Elizabeth Burgoyne that the

road was historically used as a private road, in my view, would be sufficient to

establish that the reservation of the right-of-way was intended to be of a

private nature, not one open for access by general members of the public.

[235] However, any ambiguity should be resolved in favour of the grantee

of an easement, in this case, Harold Burgoyne, who reserved the easement to

himself. Therefore, evidence of that person’s intention and understanding is

even more significant. Harold Burgoyne executed his Last Will on January 20,

1983. That preceded the 1986 conveyance of the Burgoyne Lot to Daniel and

Elizabeth Burgoyne. It was approximately around the time that he ceased his

chicken farming operations. There has been some evidence that those

operations ceased somewhere around 1980. However, there is a deed dated

September 23, 1983, from the Nova Scotia Farm Loan Board to Harold

Burgoyne, re-conveying to him the lands that have now been divided into the

Burgoyne Lot and the Homestead Lot. Harold Burgoyne referred to those

lands in his Last Will as the “home property”. This suggests that the farming

operations may have extended past 1980 and even slightly past the date Harold

Burgoyne executed his will. The will was executed not very long before the

1986 conveyance. Therefore, in my view, any statement in the will as to what

Harold Burgoyne considered to be the nature of the driveway is very

compelling. In clause 5 of his will, Harold Burgoyne stated: “The home

property also includes a right-of-way over the private driveway leading from

the public road to the lands herein defined as the home property over the

private driveway as it now exists … .” In my view, this double reference in a

single sentence to the driveway in question being a private driveway clearly

shows that Harold Burgoyne considered and intended the driveway to be a

private driveway.

[236] Therefore, in my view, Harold Burgoyne’s reservation of rights-of-

way over the Burgoyne Lot were reservations of private rights-of-way, not

rights-of-way open for use by the general public.

[237] Consequently, in my view, it would enlarge the use of the right-of-

way beyond its intended scope if it were used by general members of the

public to access a store or market on the Homestead Lot.

ISSUE 3: HAVE THE HUTTONS TRAVERSED OR USED THE BURGOYNE LOT IN A WAY WHICH WAS NOT PERMITTED, TAKING INTO CONSIDERATION THE NO RETRACEMENT PRINCIPLE IN MILLER V. TIPLING?

[238] In Gamble v. Birch Island Estates Ltd.et al; Eastern Contractors et

al v. Gamble et al, [1970] 3 O.R. 641 (H.C.J.), a lakefront property with a

right-of-way over other lands was purchased for the purpose of accessing an

island property in the lake. The Court outlined the applicable law and

concluded as follows:

It now remains to consider whether the law will permit the extension of the user of the right of way to additional property acquired by the grantee or its successors in title. This branch of the law appears to be well established. In Gale on Easements, 13th ed. (1959), p. 265, one finds this language:

"If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B." Romer L.J., Harris v. Flower & Sons (1905) 74 L.J.Ch. 127. It need hardly be said that the mere fact that the grantee uses the way to enter close A does not make close B incapable of access from A; the question must always be whether the ostensible use of the way for the purposes of the dominant tenement is genuine or colourable. If land is granted with a right of way, the fact that the way is expressed to be to a particular point or place in the land does not necessarily or usually prevent the right from being annexed to all the land.

In Callard v. Beeney, [1930] 1 K.B. 353 at p. 359, Talbot, J., expressed the law in this language:

The statement will be found in text books of repute that a right of way to Blackacre does not include a right of way to a place beyond Blackacre. If this means, as I think it does, that a right appurtenant to Blackacre does not include a right to use the way really and substantially as a way through Blackacre to a place beyond, that is undoubtedly the law. The right to go to Blackacre and the right to go through Blackacre to Whiteacre are different rights.

Again, Mulock, C.J.Ex., in the Ontario Court of Appeal, in Miller v. Tipling (1918), 43 O.L.R. 88 at p. 95, 43 D.L.R. 469 at p. 475, expressed the rule in this language:

The law is well-established that a right of way appurtenant to a particular close must not be used colourably for the real purpose of reaching a different adjoining close. This does not mean that where the way has been used in accordance with the terms of the grant for the benefit of the land to which it is appurtenant, the party having thus used it must retrace his steps. Having lawfully reached the dominant tenement, he may proceed therefrom to adjoining premises to which the way is not appurtenant; but, if his object is merely to pass over the dominant tenement in order to reach other premises, that would be an unlawful user of the way . . .

My conclusion, therefore, is simply this, that the conveyance of May 15th from Gamble to Robertson is to be interpreted by an examination of the document itself, viewed in the light of the circumstances which existed at the time of the conveyance. Having so considered the matter, it is abundantly clear to me that all that has been conveyed is the grant of a lot on the mainland with a right of way leading to this lot over Mr. Gamble's farm. That being so, the Birch Island group, and the purchaser of lots on Birch Island, are not entitled to use the right of way over Mr. Gamble's farm to reach their own property.

[239] In Seabright Partners, LLC, v. Frank Georges Island Investments

Ltd., 2010 NSSC 368, the Court, at paragraph 15, quoted the same paragraph

from Miller v. Tipling that the Court in Gamble quoted. Then, at paragraphs

16 and 19 to 21, it stated:

[16] A right-of-way granted to a dominant tenement cannot be used colourably for the purpose of reaching other lands which are not benefitted by the right-of-way. Jengle v. Keetch (1992), (O.J. No. 425) (Ont. C.A). Therefore, the use of the right-of-way granted to the Viehbecks must be for purpose connected to that property as the dominant tenement and not for any other colourable purpose.

….

[19] Common law Riparian Rights relate to landowners whose property borders a body of water. The rights include the right to uninterrupted access to the water. Corkum v. Nash (1990), 98 N.S.R. (2d) 364 The Viehbecks have Riparian Rights to access the water. Riparian rights, however, do not serve to expand the scope of an existing right-of-way. In the present case, the Viehbecks are able to access the water using their granted right-of-way. However, this does not enable an extension of the use of the right-of-way for transportation of materials, equipment and workers to the Island via the water.

[20] Under the circumstances, I conclude that the use of the right-of-way amounts to a colourable use of the right-of-way by extending the use of the right-of-way granted for the benefit of the dominant tenement (Viehbeck property) to gain access to the non-benefitted Island (FGIL property). The effect is to impose a greater burden on the servient tenement than was expressed by the grantor of the right-of-way.

[21] As a result the Court will grant the applicants second and third requested declarations. The applicants first requested declaration is too broad as the respondents Viehbecks can use the right-of-way to access adjacent properties including the ocean, but they cannot do so for the colourable purpose of enlarging the scope of the right-of-way to the benefit of FGIL. Similarly, the fourth declaration requested is too broad as the respondents Viehbecks have the right to use the right-of-way to access the Island; what the Viehbecks do not have is the right to use the right-of-way for the benefit of FGIL. The respondent, FGIL, has no right to use the right-of-way under any circumstances.

[240] In Shea v. Bowser, at paragraph 36, our Court of Appeal confirmed

this was the applicable law in Nova Scotia, stating:

[36] The general rule is that the owner of a dominant tenement cannot use a pre-existing right-of-way over the subservient tenement to access a subsequently acquired property that is adjacent to the dominant tenement. (Harris v. Flower, (1904), 91 L.T. 816 (C.A.)). Translated to this case, the Sheas could not rely on any pre-existing right-of-way over the Bowser land to Lots A and B, which they acquired in 1971, to also access the Sheep Pen Lot when they acquired it in 1972 without illegally over-burdening the Bowser Lot. I agree with the appellants when they say that the trial judge erred by negating necessity by suggesting they could access the Sheep Pen Lot over Lot A. …

[241] I note as well that a grant of right-of-way in favour of an owner

extends to persons and vehicles authorized by that owner: Nova Scotia Real

Property Manual page 13-123, referring to Betts v. Bezanson-Gallant, 2004

NSSC 70, at paragraph 72.

[242] Both Daniel Burgoyne and Elizabeth Burgoyne, but primarily

Elizabeth, provided evidence of having seen equipment, people, and tractors

on the Hutton Sales Lot, as well as having seen these and other types of motor

vehicles traveling up their driveway towards the Homestead Lot. They were

often not able to determine how, when or from where the equipment, people

and tractors made their way onto the Hutton Sales Lot, nor whether they had

also been engaging in activity on the Homestead Lot. Similarly, they were

often not able to tell whether the equipment, people, tractors and other motor

vehicles heading towards the Homestead Lot over the Burgoyne Driveway

were legitimately attending the Homestead Lot to be or conduct activities

thereon, as opposed to only colourably for that purpose or for the clearly

illegitimate purpose of reaching the Hutton Sales Lot.

[243] I agree with the Huttons that, if they, their workers, vehicles or

equipment are already on the Homestead Lot for a legitimate purpose

associated with the Homestead Lot, they have no obligation to retrace their

steps by going out through the Burgoyne Driveway and around to the Oakland

Road access to the Hutton Sales Lot. That would unnecessarily increase the

burden on the right-of-way. I agree that if workers, vehicles or equipment

attend to first legitimately conduct work on the Homestead Lot, before

continuing on to the Hutton Sales Lot, those are also not required to retrace

their steps along the Burgoyne Driveway and drive around to the Oakland

Road access. I accept Elizabeth Hutton’s evidence regarding the work that was

performed in that fashion on both properties.

[244] I also accept the evidence of Elizabeth Hutton that much of the traffic

complained of was for work associated with the extensive renovations and

upgrades they conducted on the Homestead Lot residence and lands. In

addition, I accept that some of the vehicle and trailer traffic related to a friend

who they allowed to stay at their house and to store his building supplies there.

In my view, he was also permitted to use the Burgoyne Driveway to access the

Homestead Lot.

[245] However, some of the observations of the Burgoynes were

acknowledged, or not contested, by the Huttons as being incidents where the

Burgoyne Driveway was used to access the Hutton Sales Lot only. In addition,

the Huttons conceded additional incidents not observed by the Burgoynes.

[246] These incidents of use of the Burgoyne Driveway to access the Hutton

Sales Lot, which in my view constitute trespass, because they were not for the

benefit of the Homestead Lot, include those which follow.

[247] On September 26 and 27, 2012, six people, in three motor vehicles,

used the Burgoyne Driveway to go help the Huttons plant haskap bushes on

the Hutton Sales Lot. They first stopped at the house on the Homestead Lot to

have tea and coffee, then walked over to the Hutton Sales Lot. In my view,

their clear purpose for using the right-of-way was to access the Hutton Sales

Lot, not to go to the Homestead Lot for tea and coffee. That would, at best, be

a colourable purpose.

[248] At an unspecified time, which likely preceded or coincided with the

initial planting of the haskaps in September 2012, a pickup truck used the

right-of-way to deliver the haskap plants intended for the Hutton Sales Lot.

[249] From April 8 to April 12, 2013, one man used the right-of-way on a

daily basis to carry out work on the Hutton Sales Lot, including fence repair,

maintenance and tree cutting. This included Tommy Tanner removing brush

and trees on the Hutton Sales Lot abutting the right-of-way to the Homestead

Lot.

[250] On April 28, 2013, additional workers used the right-of-way to access

the Hutton Sales Lot to assist in the installation of mesh fencing.

[251] In August 2013, two students walked up the right-of-way to help weed

on the Hutton Sales Lot, their passage was interrupted by the Burgoynes. They

did make their way to the Homestead Lot, talked to Ms. Hutton and her

husband, and walked over to the Hutton Sales Lot from there, returning to the

house to use the washroom as needed. However, again, in my view their

purpose for using the right-of-way was clearly to access the Hutton Sales Lot.

Their attendance at the house on the Homestead Lot was merely incidental to

that purpose.

[252] At unspecified times, multiple loads of shavings for mulch to be used

on the Hutton Sales Lot were delivered using the right-of-way.

[253] During the harvest season immediately preceding the hearing of the

application, i.e. 2015, another couple used the Burgoyne Driveway for about

eight days to go help Ms. Hutton and her husband harvest the berries off of the

3,000 haskap plants they had planted.

[254] Then, various persons attended the residence on the Homestead Lot to

purchase berries that had been brought over from the Hutton Sales Lot. This

was in response to a posting by the Huttons inviting members of the general

public to attend at the Homestead Lot and purchase berries. In addition, the

Huttons transported berries out through the Burgoyne Driveway to bring to

customers requesting them, in response to the same posting. No evidence was

provided of any legitimate purpose to bring the berries first onto the

Homestead Lot, before being retrieved by, or delivered to, customers.

Therefore, on the evidence before me, I find that the right-of-way was used for

the illegitimate purpose of getting the haskap crop from the Hutton Sales Lot

to market, thus benefitting the Hutton Sales Lot, as opposed to the Homestead

Lot.

[255] Elizabeth Burgoyne deposed that, between April 15 and April 19,

2013, the right-of-way was used daily to work on the Hutton Sales Lot.

However, she did not provide sufficient detail, such as who it was that used

the right-of-way, nor how much time transpired from the time they used the

right-of-way to when they appeared on the Hutton Sales Lot. Therefore, there

is insufficient information to assess whether or not they were first on the

Homestead Lot for a legitimate purpose.

[256] Ms. Burgoyne also complained of Steve Barry parking on their

property and unloading his excavation equipment for use on the Homestead

Lot in August 2013. There was insufficient information of the location of such

parking to determine whether or not it was within one of the express rights-of-

way. Reasonable use of a right-of-way includes the right to park temporarily

on it, for a reasonable period of time, provided it does not unreasonably

impede other legitimate users of the right-of-way. Therefore, I cannot find that

trespass was committed on that occasion.

[257] Elizabeth Burgoyne testified that, during the entire week preceding

the hearing of the application, there was activity on the Hutton Sales Lot in the

way of large posts being installed. However, she did not provide evidence that

they had had been brought to the Hutton Sales Lot via the Burgoyne

Driveway. In addition, she did not indicate who was installing them. For

instance, if it was Mr. O’Kane, more likely than not, he would simply have

traveled over from the Homestead Lot where he was likely already present for

a genuine reason. Therefore, there is insufficient information to determine

whether or not such installation of posts involved trespass.

[258] Similarly, there is insufficient information regarding the installation of

bird distress calls on the Hutton sales lot to determine whether or not that

installation involved trespass.

ISSUE 4: WHAT, IF ANY, DAMAGES SHOULD BE AWARDED FOR SUCH IMPERMISSIBLE USE?

[259] Some of this evidence of trespass over the Burgoyne Driveway by

using it for the benefit of the Hutton Sales Lot is general and imprecise.

Therefore, it is impossible to provide an accurate total of the incidents of

trespass. However, over a period of about three years, such trespass was

committed by roughly 20 more people and a dozen or more vehicles, on

twenty-five or more separate days.

[260] Elizabeth Burgoyne also testified that the nuisance created as a result

of this equipment and these farmworkers passing over the Burgoyne Driveway

has interfered with the “quiet and peaceful enjoyment” of their property. The

main Burgoyne Driveway connects the Homestead Lot to Highway 1, over the

Burgoyne Lot. There is a short driveway which branches off of this main

Burgoyne Driveway and leads to the residence of the Burgoynes. That, to at

least a small extent, would diminish the detrimental effect of this illegitimate

traffic. However, I accept the evidence that the main Burgoyne Driveway is

still visible from the residence of the Burgoynes. This traffic did not pass

unnoticed by the Burgoynes. The vehicle and equipment traffic, particularly

the heavier vehicles and equipment, more likely than not, would create

perceptible or even disruptive noise. The driveway is a dirt or gravel driveway.

During dry times, more likely than not, the vehicle traffic would create dust.

Therefore, I accept that this traffic did interfere with the quiet and peaceful

enjoyment of the Burgoyne Lot.

[261] The Burgoynes, as early as August 2012, informed the Huttons that it

was their position that the Burgoyne Driveway was to be used to access the

residence on the Homestead Lot only, and could not be used to access the

Hutton Sales Lot. There were subsequent discussions amongst the Burgoynes,

Elizabeth Hutton and her husband thereafter. Unfortunately, they were less

than cordial. Each side accused the other of being aggressive and non-

cooperative. It is unnecessary for me to determine who, if anyone, is to blame

for the nature of the discussions. Each side hired counsel in an attempt to

resolve the matter. Those discussions failed. In or about May 2013, counsel for

the Burgoynes served a Protection of Property Act Notice upon Elizabeth

Hutton. It stated that she was “not to engage in any activity over the private

right-of-way from the public Highway #325 on the lands of Beth and Danny

Burgoyne for access to the Hutton Sales, Inc. lands PID# 60419926”, and

added that the notice was applicable to Ms. Hutton “and any employees,

servants or agents of Hutton Sales, Inc., including any spouse [she] may

have”.

[262] I have found that impermissible use of the right-of-way continued

thereafter.

[263] The Burgoynes characterize this continued use as being a blatant

disregard for their property rights. However, having obtained legal advice, the

Huttons took the position that, once they, or the people under their control,

were on the Homestead Lot they could go wherever they wanted from there.

As such, they were acting under the belief that they were within their rights. I

have concluded that, at least in relation to some of the activities, they were

mistaken in that belief. Therefore, although in retrospect, some of the activities

amounted to disregard for property rights, at the time, the Huttons were not

deliberately trampling upon property rights they knew existed. At the same

time, property rights are deserving of protection. As such, until the matter was

resolved or determined, the Huttons could have taken steps to attempt to avoid

any infringement of the Burgoynes’ property rights. Instead, they simply

continued their activities under the misapprehension that they had a right to do

so. On the other hand, in relation to some of the activities complained of by

the Burgoynes, I have found that the Huttons were acting within their rights.

Therefore, if they had ceased all activities complained of, they would have

been stopped from doing something they had a right to do.

[264] The Burgoynes submitted that, the court should order the Huttons to

pay $20,000 in damages, being $5000 per year for four years. In support, they

refered to Brown v. Bellefontaine, [1999] N.S.J. No. 291, affirmed on appeal,

2000 NSCA 103.

[265] The Huttons did not address the issue of any damages that might be

owing by them.

[266] In Brown v. Bellefontaine, the Court made an award of $15,000 in

general damages for trespass. It emphasized that it limited damages to that

amount because it was the high end of the range submitted by the Plaintiffs’

lawyer. In that case, the Defendant claimed ownership of the lands

determined to be the lands of the Plaintiffs, including all of the shore frontage

and the lands upon which the Plaintiffs and their predecessors in title had built

structures. The Court found that the Defendant’s counterclaims, including for

trespass, were totally without merit and unwarranted. The Defendant had

committed significant overuse of the mutual right-of-way by parking tandem

trailers or tractor-trailers. The Court stated that the Defendant had “for many,

many years … made life miserable for” the Plaintiffs, even before he asserted

a claim to the lands in question.

[267] The Court found that there were too many incidents of disturbing

behavior by the Defendant to refer to all of them. However, it provided the

following examples.

[268] A tree growing on the Defendant’s land had fallen over the mutual

right-of-way. The Plaintiffs had cut it up and piled it on the side of the right-

of-way. The Defendant took it and put it in the Plaintiff’s living room.

[269] Shortly after the Plaintiffs built their house, the Defendant planted a

steel rail in the middle of their lawn.

[270] The Plaintiffs put in a small garden 8’ x 8’. The Defendant tore it up.

[271] He also put barbed wire where he was not entitled to.

[272] When the Plaintiffs were building on their property, “he did just about

everything that could possibly be imagined to interfere with construction”.

[273] This type of behavior by the Defendant caused the female plaintiff to

be scared to stay on their property. Even after they begged the Defendant to

stop, he continued.

[274] The Court described the cumulative effect of the Defendant’s actions

as being “horrendous”. The Court found that the Defendant had essentially

destroyed, for the Plaintiffs, what would have been their dream property.

[275] In my view, the actions and positions taken by the Huttons, in the case

at hand, were relatively innocuous compared to those of the Defendant in

Brown v. Bellefontaine. In addition, unlike the Defendant’s case in Brown v.

Bellefontaine, the case for the Huttons was not so completely without merit

that it created “a total waste of resources in terms of the [Burgoynes] having to

defend against a totally unwarranted counterclaim”. Further, the activities did

not persist for as long as those in Brown v. Bellefontaine.

[276] Therefore, even though the Court in Brown v. Bellefontaine would

have granted a higher amount of damages if requested, and the award would

be larger in today’s dollars, I am of the view that an appropriate general

damage award in the case at hand, is significantly less than $15,000.

[277] I also note that, in the case at hand, there was no construction of a new

right-of-way by the Huttons, contrary to the situation in Gamble v. Birch

Island Estates Ltd., [1970] 3 O.R. 641 (H.C.J.), also referred to by the

Burgoynes on the question of damages. There also were no changes to the

existing driveway; and, the Huttons did not damage the property of the

Burgoynes.

[278] In these circumstances, in my view, a general damage award of

$2,500 will fairly compensate the Burgoynes for the interference with their

property rights and their use and enjoyment of their property.

ISSUE 5: WHAT, IF ANY, INJUNCTIVE RELIEF SHOULD BE GRANTED?

[279] The Burgoynes request an injunction restraining the Huttons from

making impermissible use of the Burgoyne Driveway.

[280] Such injunctions were granted, in similar circumstances, in Malden

Farms, Power Supermarkets, Birch Island Estates, and, Frank George’s

Island. The circumstances of the case at hand and of these similar cases are

distinguishable from cases where an injunction is sought to restrain

interference with the use of a right-of-way. In those cases, if the interference is

temporary or not substantial, it may not be appropriate to grant an injunction,

particularly where the losing party has agreed to follow any declaratory relief

granted. Injunctive relief is more readily granted where, as in the case at hand,

property rights associated with ownership are involved, as opposed to merely

easement rights.

[281] The Huttons argue that an injunction should not be granted because of

the difficulty of enforcement and the likelihood that it would require multiple

court proceedings to enforce. They comment that it would be like being in jail.

[282] The fact that the Huttons advanced in this argument, instead of the

argument that an injunction was not required because they would abide by any

declaratory relief is concerning and, in my view, emphasizes the need for

injunctive relief. Further, to accept this argument would only serve to

encourage surreptitious and/or colourable use, in the future, by the Huttons.

[283] Therefore, in my view, it is appropriate to grant an injunction

restraining further impermissible use of the Burgoyne Driveway.

CONCLUSION

[284] Based on the foregoing, the Court concludes, grants and orders:

1) A declaration that the express reservations of rights-of-way that are

the subject of this Application are only for the benefit of the

Homestead Lot, and are of a private nature such that they do not

extend to use by general members of the public;

2) A declaration that there are no rights-of-way over the Burgoyne

Lot for the benefit of the Hutton Sales Lot;

3) That the Huttons have used, permitted the use of, and/or directed

the use of the right-of-way over the Burgoyne Lot, along the

existing Burgoyne Driveway, in the impermissible ways noted as

having been established, including for the benefit of the Hutton

Sales Lot, amounting to trespass and nuisance in relation to the

Burgoyne Lot and to the detriment of the Burgoynes;

4) That the Huttons shall pay the Burgoynes $2,500 in general

damages for such trespass and nuisance;

5) An injunction restraining the Huttons, along with their employees,

contractors, and agents, from using the express rights-of-way over

the Burgoyne Lot for the benefit of the Hutton Sales Lot or of any

other lands apart from the Homestead Lot; and,

6) An injunction restraining the Huttons , along with their employees,

contractors, and agents, from inviting, encouraging or condoning

use of the expressed rights-of-way over the Burgoyne Lot, by

general members of the public, to access the Homestead Lot.

ORDER

[285] I ask counsel for the Burgoynes to prepare the order.

COSTS

[286] If the parties are unable to reach agreement on the issue of costs, I will

receive submissions on that issue in writing.

_________________________

PIERRE MUISE, J.

SUPREME COURT OF NOVA SCOTIA Citation: Burgoyne v. Hutton...

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