The appellant appealed an order of the Superior Court that declared a prescriptive easement over only the rear portion of a gravel driveway strip between the appellant's plumbing business property and the respondents' residential property.
The application judge had found that the respondents could erect a fence blocking the front portion of the strip because its use was not necessary for the appellant.
The Court of Appeal allowed the appeal, finding that the application judge erred by conflating the criteria for establishing a prescriptive easement with the criteria for determining whether an encroachment substantially interferes with the easement's use.
The court held that the test is whether the dominant owner can use the easement as conveniently as before, not whether the use is necessary.
The easement was declared over the entire strip, and the respondents were enjoined from obstructing it with the proposed fence.
