Mark A. Fendley

The respondents were successful in defending an application for a declaration of a public highway.

The Township and the individual respondents, who were separately represented, sought costs.

The Township claimed partial indemnity costs, while the individual respondents sought full indemnity costs.

The court found that separate representation was justified but declined to award substantial indemnity costs as there was no Rule 49 offer or discreditable conduct.

Costs were fixed at $19,000 for the Township and $17,000 for the individual respondents, payable by the applicant.

The applicant sought a declaration that an 1890 municipal by-law established a public road across the respondents' properties to provide access to his landlocked parcel.

The court reviewed historical township minutes and found that while a road was contemplated and partially constructed, its exact location could not be determined with certainty.

The original survey was lost, and there was no modern record or visual evidence of the road's existence.

The application was dismissed due to the lack of certainty regarding the road's location.