Depew et al. v. Wilkes et al. [Indexed as: Depew v. Wilkes]

60 O.R. (3d) 499

[2002] O.J. No. 2987

Docket No. C35690

Court of Appeal for Ontario,

Rosenberg, Sharpe and Cronk JJ.A.

July 31, 2002

Estoppel -- Proprietary estoppel -- Elements for establishing easement by doctrine of equitable proprietary estoppel -- Assertion of strict legal rights must be unconscionable --Accommodation element -- Encouragement element -- Detriment element -- Alleged easement must accommodate the dominant tenant -- Easement must be reasonably necessary for the better enjoyment of the dominant tenement.

Real property -- Easements -- Equitable proprietary estoppel -- Elements for establishing easement by doctrine of equitable proprietary [page500] estoppel -- Assertion of strict legal rights must be unconscionable -- Accommodation element -- Encouragement element -- Detriment element -- Alleged easement must accommodate the dominant tenant -- Easement must be reasonably necessary for the better enjoyment of the dominant tenement.

The appellants and the respondents owned cottage properties on Lake Erie. The respondents also owned Lot 13, upon which there was a lane, known as Willow Beach Lane. Lot 13 was subject to two rights-of-way that provided access to and from the appellants' cottages. The appellants parked their cars on Lot 13 and claimed that they had acquired possessory title to parts of Lot 13 based on adverse possession. After a trial, this claim was dismissed. The trial judge, however, found that the appellants had prescriptive easements and also easements based on the doctrine of equitable proprietary estoppel. He found that the appellants were entitled to park in front of their cottages but required an annual licence fee of $250 per cottage. He found that the appellant Wilkes had a prescriptive easement for a pier but required an annual licence fee of $100. The trial judge also found an easement with respect to a sand point well and assessed a $100 annual licence fee. He found an easement with respect to concrete blocks used to protect the cottages from high water. The parties appealed and cross- appealed the trial judgment. The main appeal raised the single issue of whether having found that the appellants had made a prescriptive easement with respect to the parking and the pier on Lot 13, did the trial judge err in considering the equitable claim.

Held, the appeal should be allowed and the cross-appeal should be dismissed.

The trial judge misdirected himself on the application of the doctrine of equitable proprietary estoppel. The doctrine requires that the assertion of strict legal rights be unconscionable. The trial judge made no such finding, and it is difficult to see any basis for doing so. There was no proper basis for the imposition of the licence fees. His approach was based on nothing more that a sense of justice or fairness and could be applied in virtually every case where a prescriptive easement is made out. Adopting this approach would make the law of easements unpredictable. The licence fees for parking and the pier should be set aside.

On the cross-appeal about the parking easement, the issue was whether the alleged easement accommodated the dominant tenant, that is, the respondents' properties, the accommodation factor being one of the four essential qualities of an easement. The respondents correctly submitted that convenience was not sufficient, and that the appellants must show that the easement was "reasonably necessary for the better enjoyment" of the dominant tenements. The reasonably necessary requirement serves to emphasize that there must be a connection between the easement and the dominant tenement, as opposed to a personal right. The reasonably necessary requirement is fact specific and must be applied in a flexible manner. In this case, the trial judge was correct in concluding that parking on Lot 13 does accommodate the dominant tenements.

On the cross-appeal about the sand point well, about which the trial judge had found an easement based on the doctrine of equitable proprietary estoppel, the only issue was whether the respondents had encouraged the beliefs of the appellants about their claims with respect to the well. The respondents submitted that the encouragement requirement was not made out because they were unaware of the sand point's existence until the litigation began. However, the evidence established that the wells were placed on Lot 13 first with the active encouragement of the respondents' predecessors in title and, thereafter, at least with the respondents' acquiescence. The trial judge's solution of a $100 annual fee was fair. [page501]

On the cross-appeal about the concrete blocks, it was argued that the claim for proprietary estoppel was not made out because the respondents had not established the element of detriment. However, there was an evidentiary basis for finding that this element had been proven.

APPEAL and CROSS-APPEAL from a judgment of Marshall J. (2000), 2000 ONSC 22622, 193 D.L.R. (4th) 529, 38 R.P.R. (3d) 138 (S.C.J.) as well as an order.

Cases referred to Caldwell v. Elia (2000), 2000 ONCA 5672, 30 R.P.R. (3d) 295, 129 O.A.C. 379 (C.A.); Ellenborough Park (Re); Davies, Powell v. Maddison (Re), [1955] 3 All E.R. 667, [1956] Ch. 153, [1955] 3 W.L.R. 892, 99 Sol. Jo. 870 (C.A.), affg [1955] 2 All E.R. 38, [1956] Ch. 131, [1955] 3 W.L.R. 91, 99 Sol. Jo. 418; Henderson v. Volk (1982), 1982 ONCA 1744, 35 O.R. (2d) 379, 132 D.L.R. (3d) 690 (C.A.); MacKenzie v. Matthews (1999), 1999 ONCA 19931, 46 O.R. (3d) 21, 180 D.L.R. (4th) 674, 28 R.P.R. (3d) 1 (C.A.), affg (1998), 21 R.P.R. (3d) 307 (Ont. Gen. Div.) Statutes referred to Limitations Act, R.S.O. 1990, c. L.15, ss. 31, 32 Authorities referred to Cheshire, Modern Real Property, 7th ed. (1954) Gale, C.J., Gale On Easements, 16th ed. By J. Gaunt and P. Morgan (London: Sweet & Maxwell, 1997) Megarry, R., and W. Wade, The Law of Real Property, 6th ed. by C. Harpum (London: Sweet & Maxwell, 2000). Oosterhoff, A.H., and W.B. Rayner, Anger & Honsberger: Law of Real Property, 2nd ed. (Aurora: Canada Law Book, 1985). Snell, E.H.T., Snell's Equity, 30th ed. by John McGhee (London: Sweet & Maxwell, 2000)

Corina Anghel Bachmann, for appellants. Paul D. Amey, for respondents.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This appeal and cross-appeal raise issues concerning prescriptive and equitable easements. The appellants own cottages on Lake Erie. The respondents own a cottage on Lake Erie and, more importantly, a strip of land the appellants have used for parking and other purposes for many years. The appellants submit that having found prescriptive easements for certain uses such as the parking, Marshall J. erred in dealing with those rights under the rubric of equitable proprietary estoppel. I agree with that submission and would allow the appeal.

[2] The respondents by their cross-appeal submit that the trial judge erred in finding prescriptive and equitable easements. I do not agree with that submission and I would dismiss the cross-appeal. [page502]

[3] The appellants also appeal from the costs order at trial. The trial judge found that success was divided and made no order for costs. Particularly in light of the disposition of the appeal, I would allow the appeal from the costs award. The appellants are also entitled to their costs of the appeal and the cross-appeal on a partial indemnity basis.

The Facts

[4] The appellants and the respondents own cottages in Port Ryerse. To get to those cottages, one drives to the end of Commercial Road. The respondents' cottage abuts Commercial Road. The appellants' cottages are to the west of the respondents' cottage. To get to their cottages, the appellants turn west on to Willow Beach Lane, which runs between the cottages to the north and the beach to the south. Both Willow Beach Lane and the beach in front of the cottages lie on Lot 13. The respondents own Lot 13. The dispute in this case concerns the appellants' use of Lot 13. Lot 13 is subject to two express rights-of-way: access by the appellants' vehicles (ingress and egress) and access in common with the public to Lake Erie. Except for the appellant Wise, the appellants have rights of ingress and egress expressly stipulated in their deeds. The respondents concede that Wise has the same access rights as do the other appellants.

[5] Over the years, the appellants have erected a number of structures on Lot 13 and have parked their cars on Lot 13 in front of their respective cottages. For reasons that are not now material, the respondents recently began to dispute these uses. At trial, the appellants claimed that they had acquired possessory title to parts of Lot 13 by way of adverse possession. Alternatively, they claimed prescriptive easements or easements by reason of equitable proprietary estoppel. The trial judge found against the appellants on adverse possession and that is no longer a part of the case. There is also no longer any dispute about some of the specific rights claimed by the appellants. I will summarize the facts in relation to the issues that are still outstanding.

Parking

[6] It would seem that parking is the most contentious issue between the parties. For more than 20 years, the appellants have parked their vehicles in front of their cottages. Public parking is available on Commercial Road but the appellants much prefer to park at the side of Willow Beach Lane on Lot 13 in front of their [page503] cottages. The respondents acknowledge that the appellants have many reasons for parking on Lot 13, including the following:

-- Safety: If the appellants had to walk the 150 to 250 feet from Commercial Road at night, they would risk injury because of the potholes.

-- Health: The appellants Crawford and Wise claim that they cannot walk from Commercial Road because of age or medical condition. The respondents dispute this claim with respect to Crawford.

-- Vandalism: There is an increased risk of vandalism associated with parking on Commercial Road.

-- Finding parking spots: At certain times of the year it is difficult to find parking spots on Commercial Road because the appellants have to compete with fishermen and day users of the beach.

-- Emergencies: Occasional family emergencies make it more desirable to park vehicles immediately in front of the cottages.

-- Inconvenience: Parking on Commercial Road results in some inconvenience when the appellants have to ferry children around.

[7] The trial judge found that the appellants had made out a prescriptive easement to park on Lot 13 in front of their cottages. He also found that the appellants had established their alternative claim for proprietary estoppel. In the result, he ruled that the appellants were entitled to park in front of their cottages but required them to pay an annual "licence fee" of $250 per cottage.

The pier

[8] In the 1950s, the predecessor in title to the appellant Wilkes built a large pier on Lot 13. The trial judge found that Wilkes had a prescriptive easement for the pier as well as an easement by proprietary estoppel. As with the parking, the trial judge granted an equitable remedy and required Wilkes to pay an annual $100 licence fee for the pier.

The well

[9] Wilkes' predecessor in title installed a well on Lot 13 over 70 years ago, with the permission of the respondents' predecessor in title. For most of that time, the well covering has been plainly visible. In 1985, Wilkes abandoned that well and installed a "sand point" to obtain water for his cottage and the Wise cottage. [page504] The sand point is beneath the surface and is not visible. The respondents claim that they were not aware of the sand point until the litigation began. The trial judge found that, in view of its very recent installation, Wilkes had not acquired a prescriptive easement over the well. He found, however, that users of the well had acquired an easement by reason of equitable proprietary estoppel and assessed a $100-per-year licence fee.

Concrete blocks

[10] In the 1970s, the appellants erected cement pads south of Willow Beach Lane on Lot 13 to protect their cottages and Willow Beach Lane from high water. In 1986, the appellants Crawford and Wise placed one-ton concrete blocks on top of the cement pads to provide further protection from high water. These blocks are moveable and in fact have been moved by storms. The trial judge found that, because of their relatively recent placement, there was no prescriptive easement with respect to the blocks. However, he found that the appellants had established their claim for proprietary estoppel in respect of the blocks. The trial judge did not impose any licence fee because the blocks benefited the whole beach, including the respondents' property.

The other improvements

[11] Over the years, the appellants made other improvements to Lot 13. The cement pads are an example. It is unnecessary to deal with those other improvements since neither side now complains about the trial judge's disposition.

Analysis

The main appeal

[12] The main appeal raises a single narrow issue. Having found that the appellants had made out a prescriptive easement with respect to the parking and the pier on Lot 13, did the trial judge err in considering the equitable claim? The trial judge gave these reasons for proceeding in that manner:

In the end then, although I have found that some of the improvements the defendants have made qualify as easements under the Limitations Act, I would deal with them first under the rubric of equitable proprietary estoppel. I do that because of the necessity of answering equity or fairness in the result.

Here, for all these reasons, I have chosen the "path" of equitable proprietary estoppel giving rise to an equitable easement coupled to a rent or annual licence fee. In this way, in these instances, equity can best be done. [page505]

Here the Depew family own and, presumably, have paid taxes on Lot 13. Though equity will assist the cottagers in establishing the easement by estoppel, equity to the titleholder of the land requires that a reasonable annual fee be paid to the titleholder for the use of the land.

[13] In my view, the trial judge misdirected himself on the application of the equitable doctrine. The doctrine is described by the authors of Megarry & Wade, The Law of Real Property, 6th ed. (London: Sweet & Maxwell, 2000) at p. 727:

Proprietary estoppel, which is also sometimes referred to as "estoppel by acquiescence" or "estoppel by encouragement", is a means by which property rights may be affected or created. The term describes the equitable jurisdiction by which a court may interfere in cases where the assertion of strict legal rights is found to be unconscionable.

(Footnotes omitted; emphasis added)

[14] The trial judge found that, because of the expiration of the 20-year limitation period provided for in ss. 31 and 32 of the Limitations Act, R.S.O. 1990, c. L.15, the appellants had acquired prescriptive easements to park their cars in front of their cottages on Lot 13 and that Wilkes had established a prescriptive easement with respect to the pier. These were legal rights. It was nevertheless open to the trial judge to grant the respondents an equitable remedy, provided he found assertion of these strict legal rights unconscionable.

[15] The trial judge made no such finding and it is difficult to see any basis for doing so. The appellants and their predecessors in title had been parking on Lot 13 for many decades without charge and with the acquiescence of the respondents and their predecessors in title. The Wilkes pier was erected in the 1950s and, as the trial judge said, it benefited all the cottagers, including the respondents, by protecting the beach, Willow Beach Lane and the cottages. The only reasons given by the trial judge for imposing the licence fees were that the respondents presumably were paying taxes on Lot 13 and that "equity to the titleholder of the land requires that a reasonable annual fee be paid to the titleholder for the use of the land." There was no evidence of how much, if anything, the respondents were paying in taxes.

[16] While I appreciate that the trial judge turned to equity in order to effect what he thought was a fair result, I have concluded that he erred in doing so. His approach is based on nothing more than his sense of justice or fairness and could be applied in virtually every case where a prescriptive easement is made out. Adopting this approach would make the law of easements unpredictable. As Cory J.A. said in Henderson v. Volk (1982), 1982 ONCA 1744, 35 O.R. (2d) 379 at p. 384, 132 D.L.R. (3d) 690 (C.A.), the courts ought to proceed with caution before finding title by prescription [page506] because "[i]t tends to subject a property owner to a burden without compensation". However, notwithstanding that result, absent a finding of unconscionability there is no basis for proceeding to consider some further equitable remedy where a prescriptive easement has been found to exist. In the result, I would set aside the licence fees for parking and the pier.

[17] This is sufficient to dispose of the main appeal, provided that the trial judge's finding of a prescriptive easement for parking can be sustained. That is one of the issues raised on the cross-appeal. The respondents had cross- appealed the trial judge's finding of an easement with respect to the pier, but they have abandoned that part of their cross-appeal. I will now turn to the cross-appeal.

The cross-appeal

Parking

[18] The authors of Anger and Honsberger: Law of Real Property, 2nd ed. (Aurora: Canada Law Book, 1985) at p. 925 describe an easement as a "right annexed to land which permits the owner of the dominant tenement to require the owner of the servient tenement 'to suffer or not to do' something on such land". They describe the four essential qualities of an easement in these terms:

(i) there must be a dominant and a servient tenement;

(ii) an easement must accommodate the dominant tenement;

(iii) dominant and servient owners must be different persons; and

(iv) a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

[19] In this case, the servient tenement is Lot 13. The dominant tenements are the appellants' lots. On this part of the appeal, dealing with parking, the issue is condition two: the easement must accommodate the dominant tenement. The respondents submit that, while the appellants may find it convenient to park on Lot 13 in front of their cottages, this is not sufficient and they must show that the easement is "reasonably necessary for the better enjoyment" of the dominant tenements. The reasonable necessity elaboration of the accommodation requirement seems to have originated in a passage from Cheshire's Modern Real Property, 7th ed. (1954) that was approved by the English Court of Appeal in In re Ellenborough Park; In re Davies, Powell v. Maddison, [1955] 2 All E.R. 38, [1956-57] Ch. 131. Evershed M.R. stated, at p. 170 Ch., [page507]

We think it unnecessary to review the authorities in which the principle has been applied; for the effect of the decisions is stated with accuracy in Dr. Cheshire's Modern Real Property, 7th ed., at p. 457. After pointing out that "one of the fundamental principles concerning easements is that they must be not only appurtenant to a dominant tenement, but also connected with the normal enjoyment of the dominant tenement" and referring to certain citations in support of that proposition the author proceeded: "We may expand the statement of the principle thus: a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment of that tenement, for if it has no necessary connexion 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, but a mere contractual right personal to and only enforceable between the two contracting parties . . .

(Emphasis added)

[20] The reasonable necessity requirement serves to emphasize that there must be a connection between the easement and the dominant tenement, as opposed to a personal right. In MacKenzie v. Matthews (1999), 1999 ONCA 19931, 46 O.R. (3d) 21, at para. 8, 180 D.L.R. (4th) 674 (C.A.), Sharpe J.A., speaking for the court, held that the grant of an express easement includes a grant of ancillary rights "which are reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor". In that case, the owners of two islands had been granted a 20-foot right-of-way over the appellants' property. The evident purpose of the right-of-way was for the owners of the island to gain access to their islands. The court found that the parking of vehicles while the users of the right-of- way enjoyed access to the islands was an ancillary right reasonably necessary to the use and enjoyment of the easement.

[21] In Caldwell v. Elia (2000), 2000 ONCA 5672, 129 O.A.C. 379, 30 R.P.R. (3d) 295 (C.A.), this court considered the conditions for easements acquired by prescription and easements of necessity. The latter is described in Gale on Easements, 16th ed. (London: Sweet & Maxwell, 1997) at p. 148:

A way of necessity, strictly so called, arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without any legally enforceable means of access. In such a case the part so left inaccessible is entitled, as of necessity, to a way over the other part.

[22] In Caldwell, the original owner had created by deed a right-of-way over one lot to provide access to a land-locked lot. However, the owners had never used that right-of-way. Instead, for many years they had used a gravel road to get access to and from the properties. At some point, the respondents sought to block the gravel road. The trial judge held that the gravel road [page508] did not accommodate the appellant's property because it was not reasonably necessary; the appellant could simply use the right-of-way. This court allowed the appeal and held that the gravel road did accommodate the appellant's property and that the appellant had acquired an easement by prescription. Austin J.A., speaking for the court at para. 14, distinguished between an easement acquired by prescription and easements of necessity:

What [the appellant] 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 [the appellant's] prescriptive claim.

(Emphasis on "not" in original; other emphasis added)

[23] I do not understand the court in Caldwell to have held that reasonable necessity as understood in Ellenborough Park is not a requirement for a prescriptive easement. To the contrary, both before and after the passage quoted above, the court accepted the Ellenborough Park test.

[24] In the present case, I agree with the respondents that the appellants had to establish that parking was, in the words of Ellenborough Park, "reasonably necessary for the better enjoyment" of the dominant tenements. The reasonable necessity requirement is fact specific and must be applied in a flexible manner. As was said in Anger and Honsberger, supra at p. 927:

What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow.

[25] The trial judge found that parking on Lot 13 does accommodate the dominant tenements:

Considering all of the evidence on the size of the lots and the availability of public parking, I would conclude that parking is reasonably necessary in this case. The lots are, for the most part, built in and only 50' by 60' in total. The public parking available is on Commercial Road and, in the Court's view, a less than satisfactory alternative. I would conclude that parking is reasonably necessary. . . .

I am satisfied that the prescribed 20 years has long passed in regard to parking. I am satisfied there was acquiescence, that the parking was open and notorious and uninterrupted and, as I have said, reasonably necessary. In the result, then, I would grant an easement in regard to parking.

[26] I agree with that conclusion. The parking is connected with the normal enjoyment of the property. As the Caldwell case demonstrates, the fact that an alternative exists does not preclude [page509] a finding that the easement is reasonably necessary for the better enjoyment of that tenement. Taken together, the appellants' reasons for parking on Lot 13 listed above demonstrate that there was an adequate basis for the trial judge's finding of reasonable necessity.

The well

[27] The sand point well presents a different problem. The trial judge held that the appellants had not made out an easement by prescription because the sand point well was only recently installed and was not open or notorious. He went on to hold, however, that the appellants had acquired an equitable easement by virtue of equitable proprietary estoppel. The respondents challenge that holding in their cross-appeal. Of the conditions required to make out proprietary estoppel, the only one in issue in this part of the appeal is that of "encouragement", which is summarized as follows in Snells' Equity, 30th ed. (London: Sweet & Maxell, 2000) at para. 39-16:

A's belief must have been encouraged by O or his agent or predecessor in title. This may be done actively, as where a father persuades his son to build a bungalow on the father's land, or a mother assures her daughter that she will have the family home for her life, or a man assures his former mistress that the house in which they lived together is hers. The equity will also arise where O merely encourages A's belief passively, as where a mortgagee stood silently by while a purchaser in ignorance of the mortgage built on the land. "The circumstance of looking on is in many cases as strong as using terms of encouragement." Before the equity can arise in such circumstances, O must have known of A's expenditure. Further, normally he must also have known that the property was his, or that his property was being improved, or that he was entitled to interfere, for such knowledge makes it dishonest for him to remain wilfully passive and thereby afterwards profit by a mistake which he might have prevented. But this knowledge is not essential, for even without it, O's encouraging conduct considered in conjunction with A's actions and belief, may be such that it would be dishonest and unconscionable for O to seek to stand on his legal rights. Once it is shown that O gave assurances or other encouragement to A, and A suffers detriment, it will readily be inferred that the detriment was suffered as a result of the encouragement: the burden of proof is on O to show that A's conduct was not induced by the assurances.

(Footnotes omitted; emphasis added)

[28] The respondents submit that the encouragement requirement was not made out because they were unaware of the sand point's existence until the litigation began. They, therefore, could not be said to have encouraged the appellants.

[29] There has been a well on Lot 13 to serve the Wilkes and Wise cottages for over 70 years. That well was installed with the agreement of the respondents' predecessors in title. Originally, [page510] the well had a concrete cover. Around 1962, because of problems with the concrete cover being knocked off by storms, Mr. Wilkes replaced it with a stainless steel one. The cover, whether concrete or stainless steel, was virtually always visible; occasionally it would be covered by sand. In 1985, because of high water and because they were getting some taste from seaweed, Mr. Wilkes tried to drill a well on his own property. After spending $3,000, he had to give up because the water was contaminated by sulphur. Mr. Wilkes then decided to install the sand point. The sand point is not visible because it does not require rings. Mr. Wilkes testified that, "I had no idea I was going to have a problem with wells on the beach. I thought it was a right I had bought and acquired. It was always there."

[30] The trial judge dealt with the well as follows:

I am satisfied, on the evidence, that [the respondents] were aware of water wells being placed on the beach from time to time.

The Wilkes' well used by Lot 7 (Wise) and Lot 8 (Wilkes) for many, many years had a stainless steel cover that was, except in high water, clearly visible to all. These improvements were all made with the knowledge and acquiescence of the Depew family.

[31] I agree with the trial judge's conclusion on this aspect of the cross-appeal. The evidence establishes that the wells were placed on Lot 13 first with the active encouragement of the respondents' predecessors in title and thereafter, at least with the respondents' acquiescence. In light of the appellants Wilkes and Wise's long-standing use of a well on Lot 13, I think it would be wrong to focus only on whether the respondents knew the location of the particular well in use at the time of trial. In fact, Mr. Depew testified that he did not object to the use of Lot 13 for a well to service the Wilkes and Wise properties. He testified that, "If permission is asked we normally grant it. We like to know what's on the property." The respondents' course of conduct and that of their predecessors in title encouraged the Wilkes and Wise families to install a well on Lot 13. It is regrettable that the parties could not reach their own arrangement over the well. However, the trial judge's solution of a $100 annual fee is a fair one.

The concrete blocks

[32] The concrete blocks were recently installed and therefore the appellants did not make out a claim for a prescriptive easement. The trial judge held that the appellants were entitled to an equitable easement with respect to the concrete blocks. He did not impose a licence fee because the blocks benefit all of the owners, including the respondents. [page511]

[33] On their cross-appeal, the respondents submit that the trial judge erred in finding that the appellants' claim for proprietary estoppel was made out. The principal submission is that the element of detriment was not made out. For proprietary estoppel to be made out, there must be detriment. The person making the claim "must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment": Snells' Equity, supra, at para. 39-14.

[34] The respondents submit that it is open to the appellants to move the blocks to their own property without any loss on their investment. Therefore, there is no detriment. The trial judge did not expressly deal with the issue of detriment as it relates to the concrete blocks. However, I am satisfied that there is an evidentiary basis for finding that the appellants had proved detriment. The blocks have been placed on the south side of Willow Beach Lane, on Lot 13, to protect the lane as well as the cottages. The lane is required so that the owners can access their cottages. The appellants have spent money to acquire and place the blocks in that location.

Costs

[35] The appellants submit that the trial judge erred in principle in finding that success was divided at trial and thus in making no costs award. They also submit that they were entitled to solicitor and client costs as a result of an offer to settle. The trial judge heard extensive submissions from counsel and reviewed the various offers to settle. He noted that the respondents vindicated their ownership of Lot 13, while the appellants achieved substantial success by clarifying their rights in respect of the property; the appellants failed in their primary claim based on adverse possession but succeeded on their alternative claim for easements. The appellants submit that the trial judge misconceived the nature of the claim. They argue that the appellants obtained all that they sought and the particular label -- easements as opposed to adverse possession -- was of little consequence. I agree with that submission. Further, in light of the disposition of the appeal and the cross-appeal, the appellants have achieved almost complete success. I would therefore allow the appeal with respect to costs and award the appellants their costs of the trial on a partial indemnity basis. This is not a case for costs on a substantial indemnity scale.

Disposition

[36] Accordingly, the appeal is allowed and the judgment varied as follows. With respect to parking, para. 4 of the judgment is [page512] varied to remove reference to equitable easements by estoppel and para. 5 of the judgment is struck out. With respect to the pier, para. 10 of the judgment is varied to remove reference to an equitable easement by estoppel and para. 11 is struck out. I would allow the appeal with respect to costs and award the appellants their costs of the trial on a partial indemnity basis to be assessed.

[37] The appellants are entitled to their costs of the appeal and the cross-appeal on a partial indemnity basis. At the hearing of the appeal, Ms. Bachmann provided the court with a draft bill of costs. I have reviewed the bill of costs in light of the issues raised on the appeal. I would fix the costs of the appeal at $16,000 inclusive of disbursements and GST.

Order accordingly.