COURT OF APPEAL FOR ONTARIO
DATE: 20000306
DOCKET: C32519
AUSTIN, MOLDAVER AND FELDMAN JJ.A.
B E T W E E N : )
) Andrew. M. Robinson
WILLIAM K. CALDWELL ) for the appellant
)
Appellant )
)
and ) George W. Gibson
) for the respondents, Lisa Walsh
LISA ELIA, also known as LISA WALSH, ) and Brian Walsh
BRIAN WALSH, WILLIAM GREIG PORTER )
and EMILY CATHERINE PORTER )
)
Respondents )
)
Heard: February 18, 2000
On appeal from the judgment of Stong J. dated July 9, 1999.
AUSTIN J.A.:
[1] The parties to this application own three adjoining
properties on Lake Simcoe. They were originally used for summer
cottage purposes.
[2] Caldwell applied for a declaration that he had acquired a
right-of-way by prescription over the Walsh lands for access to
and from his property. The proceedings involving Porter have
been resolved. The application was dismissed as against the
Walshs with costs.
[3] In 1962 one person owned all three properties. She conveyed
what is now the Porter property to her son. As that property was
“land-locked”, she had the deed to her son create a 15' right-of-
way over the remaining lands to provide access for him to his
property. Subsequently the remaining lands were conveyed away,
in two parcels, one now being owned by Caldwell and the other by
the Walshs. The 15' right-of-way passes over the Caldwell
property.
[4] That right-of-way, however, has never been used as such.
The judge below described it as “upgradable" and “can be put into
a useable condition”. Until very recently, instead of using the
15' right-of-way, all parties to this litigation used a gravel
road to get access to and from their properties. It is over that
gravel road that Caldwell claims an easement.
[5] In June 1998, the Walshs indicated their desire that the 15'
right-of-way be developed and the use of the gravel road
discontinued. Discussions, however, failed to reach any
agreement. In May 1999 the Walshs installed a large wooden post
on either side of the gravel road within their property line.
Gates were attached and locked, effectively preventing use of the
gravel road where it passed over the Walsh property.
[6] That action provoked these proceedings. In the result the
application was dismissed with costs. Caldwell appeals but it
appears that there is some dispute as to the basis upon which it
was decided. Briefly, the issue is whether the judge below found
that the gravel road did not “accommodate” the Caldwell property
(and if so, whether he was correct in so finding) or whether he
found against an easement on the ground that it was not “
reasonably necessary”. What is clear is that Caldwell had used
the gravel road for in excess of twenty years and that such use
was not permissive in the sense of being by virtue of the
permission, expressed or implied, granted by the owners of the
lands now owned by the Walshs.
[7] The reasons below read in part as follows:
[18] The essential characteristics of an easement are
four-fold:
(a) There must be a dominant and servient tenement;
(b) The dominant and servient owners must be different;
(c) The easement must be capable of forming the subject
matter of a grant; and
(d) The easement must accommodate the dominant tenement, and
in accommodating the dominant tenement, it must be
reasonably necessary for the better enjoyment of that
tenement. RE: Ellenborough Park [1955] 3All E.R. 667.
at p. 678.
[19] For in the words of Sir Raymond Evershed, M.R.:
“If it has no necessary connection therewith, although
it confers an advantage upon the owner, and renders his
ownership of the land more valuable, it is not an easement
at all…”
….
[22] Of the four elements required to establish an
easement by prescription enumerated in Re: Ellenborough
Park and adopted by McMurtry, C.J.O. in Hodkin v. Bigley,
20 R.P.R. (3d) p.9 at p.12, the only one that raises a
concern is whether the purported easement accommodates
the dominant tenement.
[23] Although the gravel driveway over the Walsh property
used by Caldwell for some twenty years and laterally, the
Porters, is “connected” with the Caldwell property, being
the dominant tenement, I am not satisfied that it enjoys
the status of being “reasonably necessary for the better
enjoyment of” the Caldwell property, nor am I satisfied that
it has a “necessary connection therewith”.
[24] The express grant of the 15-foot right-of-way shown as
“D” in the Plan referred to above, makes it impossible for
Caldwell to argue that the gravel driveway forming any
“right-of-way” over the Walsh property is any longer, if it
ever was, “reasonably necessary” for the enjoyment of his
property. Although not presently completely passable, the
15-foot right-of-way can be readily rendered passable, as is
acknowledged by both parties.
[25] Caldwell has acknowledged that he is not claiming an
easement by way of necessity. He has extended the gravel
driveway entering his property from the Walshs, so that
it now circles by his cottage and runs parallel to the
north boundary of his property, exiting out into the common
way designated Block 6 on the Plan referred to above.
[26] The present configuration of driveway access and
egress to the Caldwell property by incorporating that
segment which utilizes the Walsh property, confers a
convenience which enables a better enjoyment of the
Caldwell tenement, and in all likelihood, confers an
advantage upon Caldwell which renders his ownership of the
land more valuable. Neither of these justify the status
of an easement. Nor is it a valid consideration for the
establishment of a prescriptive easement that the dominant
tenement over which has been registered a 15-foot right-of-
way, resists the development of that right-of-way because
to do so would devalue that tenement.
[27] It is clear that the gravel driveway passing
through the Walsh property is convenient to and enhances
the better enjoyment of the Caldwell tenement, in the
circumstances. It can hardly been deemed, “necessary”
or “reasonably necessary” to provide or accommodate
that “better enjoyment”.
[28] While the gravel driveway crossing the Walsh
property has a “connection” with the Caldwell property
inasmuch as it provides a union, link or bond with the
dominant tenement it is certain not a “necessary
connection”. The benefit that accrued to Caldwell
before the erection of the gates facilitated access
to his property but it cannot be said to accommodate
the dominant tenement in such a way as to justify the
creation of an easement. The gravel driveway across the
Walsh property is not critical or even significant to
the enjoyment of his property by Mr. Caldwell. He
still has uninhibited and convenient access to his
property even after the Walshs' land has been fenced
off by the erection of gates.
[8] With respect, I think the judge below has come to the wrong
conclusion.
[9] Counsel for the Walshs argues that the reason the claim
fails is because the gravel road does not accommodate the
Caldwell lands. I agree with the finding of the judge below
that the use of the gravel road “confers a convenience which
enables a better enjoyment of the Caldwell tenement, and in all
likelihood, confers an advantage upon Caldwell which renders his
ownership of the land more valuable”. I disagree with the legal
conclusion drawn from these facts by the judge below. In my
view, it is precisely these features which accommodate Caldwell’s
land and thus “justify the status of an easement”.
[10] Re: Ellenborough, supra, decided that the right of the
owners of a group of houses to walk and sit in a garden across
the street from the houses could constitute an easement.
Employing the language of that case, the use by Caldwell of the
gravel road across the Walsh property is at least as “reasonably
necessary for the better enjoyment” of his land as was the use of
the garden for the homeowners across the street in Ellenborough.
As well, Caldwell’s property has a more “necessary connection”
with the easement claimed than was the case in Ellenborough. In
the instant case the “connection” is immediate – the properties
abut one another. In Ellenborough the dominant and servient
tenements were across the street from one another.
[11] Accordingly, if the ratio below was a conclusion of non-
accommodation, I would reach the opposite conclusion, namely,
that the use of the gravel road does accommodate the Caldwell
property.
[12] A more likely reason for the conclusion reached below, in my
view, is a belief on the part of the judge below that some degree
of “necessity” is required. In paragraph [24] of his reasons the
judge of first instance says:
The express grant of the 15-foot right-of-way shown
as “D” in the Plan referred to above, makes it
impossible for Caldwell to argue that the gravel
driveway forming any “right-of-way” over the Walsh
property is any longer, if it ever was, “reasonably
necessary” for the enjoyment of his property. Although
not presently completely passable, the 15-foot right-
of-way can be readily rendered passable, as is
acknowledged by both parties. (emphasis added)
He goes on in paragraph [25] to say:
Caldwell has acknowledged that he is not claiming an
easement by way of necessity.
These two paragraphs do not fit together. In paragraph [24],
the court refuses the declaration requested because the
necessity required does not exist – yet in the next paragraph
it is made clear that the claim is not for a way of
necessity.
[13] Paragraphs [27] and [28] of the reasons below also deal with
the question whether the easement claimed is “necessary” or
“reasonably necessary”, again suggesting strongly that before the
requested declaration can be made, some degree of necessity on
the part of Caldwell must be established. i.e. that use of the
gravel road is required in order for him to use his land.
[14] This is an error. Where A divides his land and sells part
to B, if B’s part is land-locked, the law will imply a grant of
an easement over A’s land so that B will have access to and from
his land. This has been referred to as a way of necessity. What
Caldwell claims is not a way of necessity, but rather a
prescriptive right accruing by virtue of use over a period of at
least twenty years. A prescriptive claim need have no element of
“necessity”. Accordingly, the existence of the 15' right-of-way
created expressly by deed is irrelevant to Caldwell’s
prescriptive claim.
[15] Accordingly, whether the decision below was based upon a
finding that the right-of-way did not accommodate Caldwell’s
property or upon Caldwell’s failure to establish that the right-
of-way was necessary to some degree, in my view, it was reached
in error.
[16] Counsel for the respondent relied on Hodkin v. Bigley,
supra, as an example of a use of property not accommodating the
adjacent property and thus not giving rise to an easement. That
case involved a 12' strip of land running between two houses, 8'
on the plaintiff’s side and 4' on the defendant’s. The defendant
built a fence on the dividing line. The plaintiff complained
that the fence interfered with motor vehicle access to her
garage. She claimed title to the 4' by adverse possession and in
the alternative a prescriptive easement over it. Both claims
were rejected at trial and on appeal. The use asserted in that
case involved the plaintiff swinging the door of her car out over
the defendant’s land and her stepping her out of the car on to
that same land. This use would be personal to the plaintiff
rather than an accommodation to her property and thus not
“reasonably necessary” to the use of the property, in the words
of the Ellenborough case. The case does not assist the
resolution of the instant matter.
[17] I would allow the appeal and set aside the order below. In
its place should go a declaration that the owner of the Caldwell
property has an easement as claimed. Caldwell asked for an
injunction respecting removal of the posts and gates. The posts
should be altered to the extent necessary to permit the passage
of appropriately-sized vehicles. If the parties are not able to
agree on the disposition of the gates, relief may be had on
motion to the Superior Court in these proceedings. Caldwell is
entitled to his costs here and below.
“Austin, J.A.”
“I agree. Moldaver J.A.”
“I agree K. Feldman J.A.”
Released: March 6, 2000