Court File and Parties

Citation: Kuhnle v. Fisher, 2017 ONSC 2905 Court File No.: 15-66151 Date: 2017-05-11

Ontario Superior Court of Justice

Between:

Irene Margaret Kuhnle, Applicant – and – Reginald Max Fisher and Corinne Ann Fisher, Respondents

Counsel: R. Gouin and J. Dagher, for the Applicant P. Weber, for the Respondents

Heard: May 9, 2017

Ray, J.

Reasons for Judgment

[1] The applicant and the defendants are neighbours. The applicant seeks an order that she has a prescriptive right to use a portion of the northwest corner of the respondent’s property in order to access her vacant property – the Kuhnle property. It is landlocked. Absent the right-of-way across the respondents’ property, there is no legal access except from the Castor River on which the parcel is located. The respondents, who acquired the property March 11, 2008 under Land Titles, say they had no notice of the applicant’s claim, deny that she has any such registered right, and deny that she has acquired a prescriptive right. In fact they first became aware of the applicant only in September 2011 when she visited her property. This issue came to a head in September, 2012 when the respondents erected a gate and video surveillance at the entrance to the alleged laneway right of way for security reasons unrelated to the applicant.

[2] The burden is on the applicant to establish a prescriptive right across the respondents’ property to exercise her access to the Kuhnle property. At the opening of argument, in response to my question, both counsel assured me that the material facts were not seriously in dispute and it would not be necessary for me to hear the vive voce evidence of the applicant.

[3] The applicant inherited the Kuhnle property from her mother June 3, 1993 after her death. The Kuhnle parcel was what had been left after her father had conveyed two of the three parcels (Wettstein property) in 1984 that he had acquired in 1955. The portion he conveyed included a house and had frontage on the York Corners Road. After the 1984 conveyance the only access was by using the claimed right-of way. Up to that date, other access was unnecessary because the entire parcel, which included the Kuhnle property fronted on the road. No provision in the conveyance or agreement included a right of access to the Kuhnle portion of the property after the rest of the property had been sold, rendering it land locked. The parcel he retained was river frontage and land locked with no legal access. It was vacant property.

[4] However, there had been a registered right-of-way to McPherson from 1891. His lands were on the other side of the Castor River. The McPherson Right-of-way enabled him access to the York Corners Road from his property on the other side of the river. The parties are agreed there continue to be the remains of a bridge that McPherson could have used. In any event the bridge has been gone for the past 40 years. The applicant says she remembered people many years ago using the McPherson right-of-way to access the Castor River from the York Corners Road. She thinks that many people thought it was a public access.

[5] Appendix A contains a plan showing the different parcels and the laneway to which the applicant claims a prescriptive easement. The parcel outlined in blue shows the Wettstein property. The Kuhnle parcel that remained after 1984 is marked in pink. The Fisher property over which the applicant seeks the easement is outlined in orange. Between the Kuhnle property and the Fisher property is a narrow strip partially highlighted in yellow. The strip identifies the McPherson right-of-way from the river at its east end running to the York Corners Road at its west end. It is in fact the respondents’ laneway and access to the road. From the Fisher property to the road, it is gravelled and graded. However it is only graded and gravelled as far as the respondents’ residence. From there to the river (highlighted in yellow) it is passable only on foot because of the overgrowth with trees and brush.

[6] The properties all went into Land Titles in September 1999. Any period of time calculated to support the claimed easement ended as of that date. Land Titles Act, RSO 1990, ch L-5, section 51. For the twenty years to have been accumulated, evidence of usage must have started at before 1979. For the forty year claim, the starting date would be at or before 1959.

[7] The respondents acquired their property in 2008. Only the McPherson right-of-way was disclosed on the title. It is in favour of the dominant tenement, McPherson, to the east, not Kuhnle to the north. It had been vacant until 1988 when the previous owner built a house. The respondents purchased the property in 2008 on his death. However they had known him for the previous 17 years. He had mentioned the McPherson right-of-way, but had never said anything about Kuhnle.

[8] To make out her right to an easement, the applicant must satisfy the following essential characteristics:

a. There must be a dominant and servient tenement; b. The dominant and servient owners must be different persons; c. The easement must be capable of forming the subject matter of a grant; and d. The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement. Barbour v. Bailey, 2016 ONCA 98, paragraph 56.

[9] In addition, a claimant must establish a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open or notorious and peaceful, and without permission, for a period of 20 years. It must be a use as if the claimant had the right to the easement or right-of-way. Barbour v. Bailey, supra, paragraphs 60-62.

[10] The applicant Kuhnle’s evidence is that between 1955 and 1984, she and her family owned the Wettstein property and used the right-of-way on a weekly basis by foot or bicycle to access the river for recreational purposes; and that her father would use the access way to transport wood from fallen trees. It was not the only access to the Kuhnle parcel and the river. In 1984, her father sold the parcel fronting on the York Corners Road. At the time of the sale, he had discussions with his then lawyer about whether the two parcels (the Kuhnle parcel and the Wettstein parcel that was sold) touched at the corner. The lawyer’s description of the services make it clear that the applicant’s father believed that the parcels touched; and “there was enough overlap to drive a truck through”. This suggests that until 1984, access to the river from York Corners Road was easily had by simply driving across his own land. That raises the question about why the family would find it necessary to use the McPherson right-of-way when they had simply to cross their own land.

[11] I do not consider the applicant’s evidence that at the time it had the appearance of a public road at the time to be helpful. It is her (and her family’s) use that is material. It was not in fact a public road.

[12] The applicant resided with her parents in Kenmore commencing 1956 when she was about 4 years old until she finished high school in 1969. In 1984, her parents moved to Ottawa, and in 1988 her father died. She lived in Kemptville, Vancouver, Ottawa and the St Lawrence valley until 2000 when she started to live in Florida and Texas half time each year.

[13] After the 1984 sale, she says that the family continued to use the right-of-way by foot, bicycle, and vehicles since it was the only access to the river (my emphasis). She says that since 1984 she visited the property at least yearly; and listed specific incidents: May 1988; fall of 1990 when she saw the fence between her property and the Fisher property was down; October 1994 she visited the property and in November permitted a friend to go to the property via the McPherson right-of-way to ‘smoke a deer hide’; October 1998 she visited and saw fallen trees from the ice storm from February. In 2002, she wrote to the then owner of the Fisher property to ask him to set up a ‘no trespassing sign’ because she had seen someone had dug fire-pits on her property.

[14] Before 1999, there was no correspondence between the owners of the Fisher property and the applicant.

[15] It appears the applicant has been making enquiries from time to time since about 1988 about selling the Kuhnle parcel, and corresponded with the surveyor Johnston, and the municipality. She did receive a letter from the surveyor – now deceased – that since she is an abutting landowner to the McPherson right-of-way she has the right to use it for access to her parcel from the York Corners Road. He did not provide the source for that opinion, and the applicant is not arguing that that is an acceptable legal principle.

[16] The respondent’s evidence is that the site itself and the McPherson right-of-way was largely impassable to vehicular traffic, tree covered and in places subject to flooding.

[17] There is no doubt that the requirement in paragraph 8d has been met. Use of the laneway which is the old McPherson right-of-way is now the only viable access to enable her to enjoy her land-locked property. The parties are in agreement that river access to the property is not available. Barbour v. Bailey, supra, paragraph 57, 58. Similarly, the third requirement (para 8e) has been made out. It is clearly a use that is capable of forming the subject matter of a grant. Barbour v. Bailey, supra, paragraph 59.

[18] The troublesome requirement here is the applicant’s use as noted in paragraph 9 above. Travelling by foot once a year, and sometimes more, down the McPherson right-of-way prior to McRuer building his house on the Fisher property in 1988 when it was vacant land is like a tree falling in a forest when no one is there. It can hardly be construed as open and notorious if no one saw her regularly using the path. There is no other evidence such as correspondence with McRuer to suggest he knew of the frequency of her usage since she only used it once or twice a year after 1984. After 1988, McRuer had a house there. But other than asking him to put up a ‘no trespassing sign’ on the Kuhnle property for her, there was no other communication. But all that established was that McRuer knew that she owned the parcel. Her evidence is that he saw her from time to time using the path.

[19] The jurisprudence suggests that a dominant tenement may not alter the usage. While I have some difficulty finding the applicant has met the requirements in law to establish a prescriptive easement on a path following the MacPherson right-of-way, because of her infrequent but regular usage; and thin evidence concerning the usage being open and notorious, I find she has brought herself within the requirements that for the 20 years commencing 1979, the usage of once or twice per year establishes her right to access her property.

[20] As a consequence, the applicant is granted a prescriptive easement to use the gravelled laneway and then path along the McPherson right-of-way from the York Corners Road to the limit of the Kuhnle property only as a pedestrian, and a maximum of twice per year. The respondent is to ensure that the applicant has a key or other means to open the gate so as to enjoy her access.

[21] Unless the parties can agree on costs, they may make submissions of two pages or less within 15 days. I have their costs outlines.

Honourable Justice Timothy Ray

Released: May 11, 2017

Appendix A

WETTSTEIN

McPHERSON

FISHER

KUHNLE