Court of Appeal for Ontario
Before: Sharpe, Gillese and Karakatsanis JJ.A.
BETWEEN
Wayne Lywood and Ruth Lywood
Applicants (Appellants)
and
Robert Noel Hunt
Respondent
Counsel:
Jerry Switzer, for the appellants
Charles Baker, for the respondent
Heard: March 22, 2011
On appeal from the judgment of Justice J. Lauwers of the Superior Court of Justice dated May 29, 2009.
ENDORSEMENT
1This appeal concerns the nature and extent of the rights of the respondent pursuant to a right-of-way over the property of the appellants. The parties own adjacent cottages at Sturgeon Lake. The appellants’ cottage fronts on the lake and the respondent’s cottage is located behind that of the appellants. The right-of-way at issue involves water access. The application judge gave careful and detailed reasons and made a number of determinations that are not at issue on this appeal.
2The appellants raise only two issues relating to the interpretation of the grant of right-of-way:
Is there only one right-of-way for the limited purpose of maintaining a pipeline for drawing water from the lake and accessing a pump in a boathouse?
If there are two rights-of-way, should they both be exercised on the same side of the appellants’ property?
3The appellants are the owners of Lot 9, the servient tenement and the respondent is the owners of Lot 21, the dominant tenement. The right-of-way is in the following terms:
SUBJECT to a right-of-way for the Grantor and owners and occupants of Lot Number Twenty-one (21) as shown on a plan of a subdivision of part of Lots Numbers (7) and Eight (8) … to pass and re-pass along a defined path on the east side of the cottage erected on Lot Number Nine (9) as shown on said Plan Number 123 for the purpose of access to the shore of Sturgeon Lake but with no right to loiter thereon; AND SUBJECT to the right of the Grantor and the owner from time to time of said Lot Number Twenty-one (21) as shown on plan registered as Number 139 to use the pump in the boathouse for pumping water to the cottage erected on said Lot Number Twenty-one (21) as shown on Plan 139 , together with access for ingress and egress to and from the said boathouse for the purpose of using such pump.
4We do not accept the appellants’ submission that this language creates one, single and unified right-of-way to maintain a pipe for drawing water from the lake on the east side of their property and that it excludes a right of access to the lake for recreational purposes. In our view, the application judge did not err by interpreting the language of the right-of-way as, in effect, creating two distinct rights, the first to “to pass and re-pass along a defined path on the east side” of Lot 9 for “access to the shore of Sturgeon Lake” for recreational purposes; and the second to “to use the pump in the boathouse for pumping water” to the cottage on Lot 21 and the right to “access for ingress and egress to and from the said boathouse for the purpose of using such pump”. We note that although the right-of-way does not specifically refer to the right to maintain a water line to the pump in the boathouse, it is common ground that that right is necessarily ancillary to the right to use the pump in the boathouse.
5The right-of-way is drafted as two distinct grants. The language of the first grant says nothing about the right to maintain a line for drawing water from the lake and explicitly provides for the right “to pass and repass” along a path for the purpose of gaining “access to the shore of Sturgeon Lake”. The application judge found on the evidence that the terms of the right-of-way allowed for lake access for recreational purposes and that it had been enjoyed for that purpose by the respondent’s predecessors in title. As he put it at para. 7 of his supplementary reasons:
It is plain from the wording of the deeds… that there are two rights-of-way, one, for the purpose of access to the shore of Sturgeon Lake but with no right to loiter thereon and, another, to use the pump in the boathouse for pumping water to the cottage.
6We see no error of law or fact that would permit us to interfere with that conclusion.
7The appellants’ second submission is that if the right-of-way does create both a right of access for recreational purposes and the right to use the pump – with the ancillary right to have a pipeline – the two rights-of-way should be combined so that both are enjoyed over the same side of the property.
8The difficulty with this submission is that it flies in the face of the language of the instrument creating the rights-of-way. The right of access for recreational purposes is explicitly along the east side of the appellants’ property. The only boathouse is located on the west side of the property and there is evidence that the boathouse has been on the west side since the 1940s. The installed water pipes are on the west side of the property. There is no evidence capable of supporting a finding that there was ever a boathouse on the east side of the property. While we can understand the appellants’ desire to have the two rights-of-way along the same side of their property, in our view, we would have to rewrite the instrument granting the rights-of-way to achieve that result and we have no power to do so.
9Accordingly, the appeal is dismissed with costs fixed in the amount of $6,500 plus $242 for disbursements, plus applicable taxes.
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”
“Karakatsanis J.A.”
