James Hutchinson

The plaintiffs, owners of a water-access-only island property, sought a declaration that they held an easement over the defendant's mainland property for parking and boat launching.

The defendant, who operated a lodge on the mainland property, resisted the claim.

The Superior Court of Justice found that a valid express easement was created by a 1952 deed.

In the alternative, the court found that an implied easement of necessity and a prescriptive easement under the doctrine of lost modern grant had also been established.

The court held that the Registry Act did not extinguish the easement, as it arose by operation of law and the defendant's predecessors were not good-faith purchasers without notice.

The court granted the plaintiffs ancillary rights to park and launch boats, but declined to grant dock access.

The appellant appealed a decision of the Superior Court of Justice dismissing its application for a declaration of rights respecting an easement held by the respondent over a portion of the appellant's lands.

The appellant argued that the application judge made a palpable and overriding error regarding the extent of the easement, claiming it extended from the shoreline into the channel.

The Court of Appeal found no error in the application judge's reasoning and dismissed the appeal, awarding costs to the respondent.