Lang v. Tran, 2007 ONCA 797

APPEAL BOOK ENDORSEMENT

1The appellants appeal from the judgment of Cavarzan J. dated 23 June 2006 in which he dismissed the appellants’ action seeking a declaration that they owned or, in the alternative, had an easement over, a small triangle of land on a driveway separating the appellants’ and the respondents’ residential properties in the City of Hamilton. The appellants advance two grounds of appeal.

2First, the appellants assert that the trial judge erred by concluding that the respondents had established adverse possession over the triangle. In their factum, the appellants acknowledge that “[t]his is a fact specific consideration.” However, they submit that the trial judge’s reliance on the evidence of John Licata, a former resident and son of a former owner of one of the homes, amounted to a palpable and overriding error because of inconsistencies in Licata’s testimony.

3We disagree. The trial judge carefully reviewed the testimony of several witnesses who had lived in or near the two homes for several decades. His findings with respect to their evidence, including Licata’s, are well within the purview of reasonable findings of fact.

4Second, and in the alternative, the appellants contend that the trial judge erred by not finding that the appellants had acquired an easement over the triangle.

5We do not accept this submission. As the trial judge noted, there was no express grant of an easement in favour of the appellants. Nor can we see any basis for interfering with the trial judge’s conclusion, based on his review of the evidence, that the appellants did not acquire an easement by prescription. There was no evidence that the appellants were prevented from gaining access to the utility fixtures on the west wall of their home.

6The appeal is dismissed. Costs to the respondents fixed at $6500 inclusive of disbursements and GST.