Rose v. Krieser, In Trust [Indexed as: Rose v. Krieser (In Trust)]

58 O.R. (3d) 641

[2002] O.J. No. 1384

Docket No. C34319

Court of Appeal for Ontario

Abella, Goudge and Simmons JJ.A.

April 17, 2002

Real property -- Easements -- Prescription -- Right of way -- Closing words of s. 31 of Limitations Act that preclude acquisition of prescriptive easement based on 40 years of use if it appears that easement was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing refer to deed or written agreement creating permissive use and do not apply to agreement which created use as of right -- Limitations Act, R.S.O. 1990, c. L.15, s. 31.

The parties owned adjoining cottage properties. In 1955, their predecessors in title signed an agreement to lay down, maintain and enjoy a driveway between their respective lands. Among other things, each woman granted the other a right-of-way over an 8' by 190' strip of their respective properties as part of the 1955 agreement. They agreed that the two strips of land would "form together a mutual right-of-way and driveway" for the use of the parties. The two strips of land over which the rights of way were granted in fact adjoined to each other to form a driveway. The 1955 agreement was not registered on title. Soon after the respondent purchased her property in 1998, she advised the applicant that she intended to fence her property, including that part of the boundary line running through the mutual driveway. The applicant brought an application for a declaration that she held an easement over that portion of the mutual driveway that was located on the respondent's property and for an order prohibiting the respondent from erecting a fence or other obstruction on any part of the mutual driveway. The application was allowed. The applications judge found that the applicant had an easement by prescription over the mutual driveway. Specifically, the applications judge found that the shared use of the driveway had its origin in the 1955 agreement; that thereafter, the mutual driveway was constantly used for the purpose of ingress and egress for the benefit of owners, occupants and visitors of the two properties for more than 45 years; that such use had continued over this time without permission being sought from either owner or without payment or other acknowledgement of the servient owner's right or without assertion of exclusive ownership by the servient owner, and that in those circumstances, an easement was acquired by the applicant by reason of prescription. The prescriptive easement found by the applications judge was materially different, in dimensions and configuration, than the right-of-way granted by the 1955 agreement. While the nature and basic location of the use had its origins in the 1955 agreement, the finding of continuous use related to a significantly different piece of property. The respondent appealed, relying in part on s. 31 of the Limitations Act, and particularly on the closing words of that section, which preclude acquisition of a prescriptive easement over land based on 40 years of use if "it appears that [the easement] was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing."

Held, the appeal should be dismissed.

The closing words of s. 31 of the Act refer to a deed or written agreement creating a permissive use and did not apply to the 1955 agreement, which created a use as of right. Examined in context, it is apparent that the closing words of s. 31 relating to the 40-year time period are to be read in contrast with the preceding part of the section dealing with the 20-year time period. The words "consent or agreement expressly given or made for that purpose by deed or writing" in relation to the 40-year time period relate to the common law defence of permission given by deed or writing, and clarify that the defence of permission does not apply in full measure to the 40-year time period. Rather, the defence is limited to written permission with respect to the 40-year time period. Moreover, it is clear that the words "consent or agreement expressly given or made for that purpose by deed or writing" cannot apply to a use as of right given by deed or writing. The very foundation of the law of prescription is the presumption that the use originated with a grant of the right claimed. Proof of a written agreement granting the right simply displaces prescription; it does not constitute a defence to the claim. On the other hand, permission negatives a claimant's assertion that his use was "as of right" and constitutes a real defence to the claim.

APPEAL from a judgment of Lederman J. (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.) granting a declaration that the applicant had a prescriptive easement over the driveway.

Cases referred to Burrows v. Lang, [1901] 2 Ch. 502, 70 L.J. Ch. 607, 84 L.T. 623, 49 W.R. 564, 17 T.L.R. 514, 45 Sol. Jo. 536; Gardner v. Hodgson's Kingston Brewery Co., [1903] A.C. 229, 72 L.J. Ch. 558, 88 L.T. 698, 52 W.R. 17, 19 T.L.R. 458 (H.L.); Garfinkel v. Kleinberg, 1955 112 (ON CA), [1955] O.R. 388, [1955] 2 D.L.R. 844 (C.A.); Henderson v. Volk (1982), 1982 1744 (ON CA), 35 O.R. (2d) 379, 132 D.L.R. (3d) 690 (C.A.); Israel v. Leith (1890), 20 O.R. 361 (C.A.); Myers v. Johnston (1922), 1922 567 (ON CA), 52 O.L.R. 658, [1923] 4 D.L.R. 1152 (C.A.); Rose v. Kreiser (2000), 32 R.P.R. (3d) 138 (Ont. S.C.J.) Statutes referred to Limitations Act, R.S.O. 1990, c. L.15, s. 31 Prescription Act, 1832, 2 & 3 Will. IV, c. 71, s. 2 Registry Act, R.S.O. 1990, c. R.20 Authorities referred to Cheshire, G.C., The Modern Law of Real Property, 9th ed. (London: Butterworths, 1962) Gale, C.J., Easements, 16th ed. (London: Sweet & Maxwell, 1997) Great Britain Law Reform Committee, 14th Report: Acquisition of Easements and Profits by Prescription, 1966 Megarry, R., and W. Wade, The Law of Real Property, 6th ed. by C. Harpum (London: Sweet & Maxwell, 2000)

Theodor Kerzner, Q.C., for appellant. Michael P. Farace, for respondent.

The judgment of the court was delivered by

[1] SIMMONS J.A.: -- This appeal raises an issue concerning the proper interpretation of the closing words of s. 31 of the Limitations Act, R.S.O. 1990, c. L.15 that preclude acquisition of a prescriptive easement over land based on 40 years of use if "it appears that [the easement] was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing."

[2] Mrs. Rose and Mrs. Krieser own adjoining cottage properties in Keswick fronting on Lake Simcoe. Their predecessors in title granted each other a mutual right-of-way over adjoining 8' strips of land on their respective properties in 1955 but did not register their agreement on title. In a judgment dated December 18, 2000, Lederman J. declared that Mrs. Rose is entitled to an easement by prescription over that portion of a mutual driveway that is situate on the Krieser property and said that "[t]he shared use of the mutual driveway finds its origin in the 1955 Agreement."

[3] Relying on the closing words of s. 31 of the Limitations Act, Mrs. Krieser claims that the applications judge erred in law when he found that a prescriptive easement could arise even though it originated in a written agreement. She also claims that other requirements for a valid easement were not met in this case, and that in any event, the easement granted far exceeded that which was contained in the original agreement.

[4] I have concluded that the applications judge was correct in determining that the 1955 Agreement created a use as of right, and that the closing of s. 31 of the Limitations Act do not, therefore, apply. Although prescription is not generally applicable where there is a written agreement creating a use as of right, I see no bar to the prescriptive easement found by the applications judge, which is materially different in size and configuration from the right-of-way granted in the 1955 Agreement. Further, I see no error in the findings of the applications judge. I would accordingly dismiss the appeal.

Background

[5] In 1950, Margaret S. Weisberg subdivided a parcel of land that she had acquired in 1949 into several lots fronting on Lake Simcoe. Becky Zale acquired one of those lots, now described as 140 Lake Drive East, Keswick (the "Krieser property"), in January 1950. Sarah Appelby acquired a lot adjoining the east side of the Krieser property, now described as 144 Lake Drive East, Keswick (the "Rose property"), around the same time. Sarah Appelby was Carolyn Rose's mother.

[6] On September 2, 1955, Becky Zale and Sarah Appelby signed an agreement (the "1955 Agreement") to "lay down, maintain and enjoy a driveway" between their respective lands. Among other things, each woman granted the other a right-of-way over an 8' x 190' strip of their respective properties as part of the 1955 Agreement. They agreed that the two strips of land would "form together a mutual right-of-way and driveway" for the use of the parties. The two strips of land over which the rights of way were granted in fact adjoined each other to form a driveway from Lake Drive East running north into their respective properties.

[7] Mrs. Rose and her two brothers became the owners of the Rose property on Sarah Appelby's death on September 1, 1979. Mrs. Rose purchased her brothers' interests in the Rose property in 1990.

[8] The Krieser property remained in the Zale family until approximately 1997, when the Toronto-Dominion Bank exercised a power of sale under a mortgage, and ultimately sold the property to Mrs. Krieser by agreement dated October 2, 1997. Mrs. Krieser completed the purchase of her property in June 1998.

[9] Soon after Mrs. Krieser purchased her property, she and her husband tore down the existing cottage and built a new one, and then advised the Roses that they intended to fence their property, including their part of the boundary line running through the mutual driveway.

[10] The 1955 Agreement was not registered on title at the time Mrs. Krieser purchased her property. Mr. Rose informed Mr. Krieser of the existence of the 1955 Agreement after the Kriesers indicated they intended to fence the boundary line running through the mutual driveway. Subsequently, Mrs. Rose commenced an application on February 20, 2000 claiming a declaration that she holds an easement over that portion of the mutual driveway that is located on the Krieser property and an order prohibiting Mrs. Krieser from erecting a fence or other obstruction on any part of the mutual driveway.

[11] The application was heard on May 4, 2000. On May 8, 2000, the applications judge issued an endorsement in which he declared that Mrs. Rose has an easement by prescription over the mutual driveway and enjoined Mrs. Krieser from erecting a fence or other obstruction on any part of it.

[12] Counsel reappeared before the applications judge on August 15, 2000 to settle the form of judgment. Each party presented a different description of the mutual driveway. Mrs. Krieser presented a description of a strip of land 16' wide x 158' long. Mrs. Rose presented a description of a strip of land varying in width from 17.35' at Lake Road East to 18.76' at a point 88' north of Lake Road East, and then broadening out into a keyhole shape over an additional distance of 70' to a maximum width of approximately 51'. The applications judge settled the judgment on the basis that the mutual driveway includes the keyhole area and that Mrs. Rose's easement includes the portion of the keyhole area on the Krieser property.

Findings of the Applications Judge

[13] The applications judge made the following findings in his endorsement dated May 8, 2000 that are significant to this appeal [at pp. 139-40 R.P.R.]:

Since [1955] all successor owners of [the Rose] property and all successor owners of [the Krieser] property have conducted themselves in accordance with the Agreement and have recognized and utilized the mutual driveway.

The Agreement was not registered on title and [Mrs. Krieser] did not have notice of the Agreement prior to purchasing the property in 1998. But prior to the purchase of [her] property, [Mrs. Krieser] and her husband had constructive, if not actual, notice that the driveway had been used on a mutual basis. That would have become apparent to them from the MLS listing, as a result of their own visual inspection, the formal inspection report that they commissioned, and the knowledge of their solicitor and of their real estate agent.

The shared use of the driveway finds its origin in the 1955 Agreement. Thereafter, the mutual driveway located partially on the [Rose] property and partially on the [Krieser] property has constantly been used for the purpose of ingress and egress for the benefit of owners, occupants and visitors of the two properties for in excess of 45 years. Such use has continued over this time without permission being sought from either owner or without payment or other acknowledgment of the servient owner's right or without assertion of exclusive ownership by the servient owner. In these circumstances, an easement has been acquired by [Mrs. Rose] by reason of prescription (see Garfinkel v. Kleinberg, 1955 112 (ON CA), [1955] O.R. 388 (Ont. C.A.); Zurawski v. Seftel (1984), 35 R.P.R. 199 (Ont. Co. Ct.).

[14] The applications judge's endorsement dated August 15, 2000 provides, in part, as follows:

Counsel appeared to settle the judgment. Counsel will prepare a formal judgment reflecting my decision as to the description of the driveway over which the Applicant Rose has prescriptive rights (namely Parts 5, 4, 2, 1 and 3 of the R Plan dated July 5/00).

The Applicant is at liberty to register the judgment and the R Plan.

Grounds of Appeal

[15] Mrs. Krieser raises the following grounds of appeal:

(1) After finding that the shared use of the driveway has its origins in the 1955 Agreement, the applications judge erred by failing to find that the closing words of s. 31 of the Limitations Act preclude acquisition of a prescriptive right to an easement;

(2) The applications judge erred in failing to find that, as Mrs. Krieser lacked actual notice of the unregistered 1955 Agreement, she acquired title to her property free and clear of that agreement;

(3) The applications judge erred in failing to find that the claimed easement is not reasonably necessary for the better enjoyment of the dominant tenement;

(4) The applications judge erred in failing to find that any permitted use of the Krieser property by the Rose's was nothing more than an act of good neighbourliness that does not give rise to any legal rights; and

(5) The applications judge erred by accepting a draft reference plan as representing the mutual driveway without proper evidence when settling the form of judgment, and by extending the scope of the mutual driveway beyond the 16' driveway he described in his endorsement dated May 8, 2000.

[16] Mrs. Rose abandoned her cross appeal at the conclusion of the hearing before us.

Analysis

(1) Did the applications judge err by failing to find that the closing words of s. 31 of the Limitations Act preclude acquisition of a prescriptive right to an easement?

[17] Mrs. Krieser claims that the 1955 Agreement, together with the trial judge's finding that the shared use of the driveway has its origins in that agreement, preclude Mrs. Rose from acquiring an easement by prescription either at common law, under the doctrine of lost modern grant, or pursuant to the provisions of s. 31 of the Limitations Act. She relies in particular on the closing words of s. 31 that preclude acquisition of a prescriptive easement over land based on 40 years of use if "it appears that [the easement] was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing."

[18] I would not give effect to Mrs. Krieser's objections. In my view, it was open to the applications judge to find that Mrs. Rose is entitled to an easement by prescription pursuant to s. 31 of the Limitations Act for three reasons. First, it is apparent that the applications judge interpreted the 1955 Agreement as granting a "use as of right" as opposed to a licence or permissive form of use. I see no error in that conclusion. Second, the closing words of s. 31 of the Limitations Act do not apply to a written agreement that creates a use as of right. Third, the easement found by the applications judge is materially different in size and configuration than the right-of-way created by the 1955 Agreement. Although "the shared use of the driveway finds its origin in the 1955 Agreement" [p. 139 R.P.R.], that agreement neither creates nor bars the prescriptive easement found by the applications judge.

[19] The applications judge made a clear finding that the actual use of the driveway was non permissive but rather "as of right" in para. 6 of his endorsement when he said [at pp. 139-40 R.P.R.]:

Such use has continued over this time without permission being sought from either owner or without payment or other acknowledgement of the servient owner's right or without assertion of exclusive ownership by the servient owner. In these circumstances, an easement has been acquired by the Applicant by reason of prescription . . .

[20] It is also clear that the applications judge viewed this use as emanating, at least in part, from the use created by the 1955 Agreement. He said, in para. 3 [at p. 139 R.P.R.] of his endorsement"[s]ince that time all successor owners . . . have conducted themselves in accordance with the Agreement", and, at the opening of para. 6 [at p. 139 R.P.R.]"[t]he shared use of the driveway finds its origin in the 1955 Agreement".

[21] Under the terms of the 1955 Agreement, the parties "granted" each other a right-of-way, and stated that the two strips of land were "to form together a mutual right-of-way and driveway" for their use. Each was obliged to pay one half of the cost of maintaining the driveway. Neither was required to seek permission from the other to use the driveway, nor to pay the other for its use. In my view, the 1955 Agreement created a "use as of right".

[22] Turning to s. 31 of the Limitations Act, I note at the outset that it is not a simple provision to understand. It is modelled on s. 2 of the English Prescription Act, 1832. [See Note 1 at end of document] Megarry & Wade note that that "Act . . . is notorious as "one of the worst drafted Acts on the Statute Book". [See Note 2 at end of document] As the Prescription Act was an attempt to reduce certain difficulties arising at common law, it will be helpful to consider English law relating to prescription before attempting to understand the section.

[23] Prescriptive rights can arise in three ways under English law:

(1) at common law;

(2) under the doctrine of lost modern grant; or

(3) under the Prescription Act, 1832.

[24] To establish a prescriptive easement at common law, one had to demonstrate continuous use from time immemorial, i.e. 1189, the first year of the reign of Richard I. A claim would fail if it could be shown that use commenced after 1189. English courts developed the doctrine of lost modern grant as a response to the problem that the passage of time was making it increasingly difficult to satisfy the common law test. The doctrine of lost modern grant is a legal fiction that presumes long use originated in an actual grant of the right but that the deed of grant has been lost. [See Note 3 at end of document]

[25] Megarry and Wade comment that "presuming the existence of grants which had probably never been made was frequently felt to be objectionable" and that "[t]he Prescription Act, was designed to reduce the difficulties of prescription . . . and in particular the difficulty of persuading juries to presume grants to have been made when they knew this was not true". [See Note 4 at end of document]

[26] The following excerpts from paras. 18-121 and 18-132 of The Law of Real Property provide a useful background concerning the underlying basis of the law of prescription (all case citations omitted):

The basis of prescription is that if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin. Thus, the court may presume, on proof of the fact of long enjoyment, that there once was an actual grant of the right, even though it is impossible to produce any direct evidence of such a grant.

Prescription and limitation are in many ways similar principles, but as the law has developed they have become quite distinct subjects . . . One important difference is that limitation is extinctive but prescription is acquisitive: that is to say, adverse possession . . . extinguishes the previous owner's title, leaving the adverse possessor with a title based on his own actual possession, but prescription creates a new right which no one possessed previously. This is brought about by presuming a grant.

[27] With that background, I turn to the actual language of s. 31 of the Limitations Act. The relevant portions are as follows:

31. No claim that may be made lawfully at the common law, by . . . prescription or grant, to any way or other easement, . . . when the way . . . has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way . . . was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and when the way . . . has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

[28] Leaving aside for the moment the closing words of s. 31, the first part of the section shortens the time period required to acquire an easement by prescription from time immemorial, or from the presumed date of a lost grant, to either 20 years or 40 years immediately preceding the action, depending on the circumstances. The first part of s. 31 also preserves the other common law defences, apart from length of use, as part of its requirements.

[29] As for the closing words of s. 31, again, some additional background concerning the law of prescription will be helpful. Following the enactment of the Prescription Act, English courts interpreted the type of use that would be sufficient for a claim to succeed under s. 2 of the Act as being of the same character as that required at common law to found a claim by prescription.

[30] In Gardner v. Hodgson's Kingston Brewery Co., [1903] A.C. 229 at p. 239, 72 L.J. Ch. 558 (H.L.), Lindley L.J. explained that the words "claiming right thereto" in s. 2 of the Prescription Act, which also appear in line 4 of s. 31 of the Limitations Act, have the same meaning as the term "as of right". "As of right" was the equivalent of "the older expression nec vi, nec clam, nec precario", meaning that the enjoyment must not be as the result of violence, must not be secret, and must not be precarious.

[31] "Precarious" is explained in Gale, Easements, 16th ed. (London: Sweet & Maxwell, 1997), at paras. 4-76:

What is precarious? "That which depends not on right, but on the will of another person." [See Note 5 at end of document]

Enjoyment had under a licence or permission from the owner of the servient tenement confers no right to the easement.

[32] Lindley L.J. also made the following general comments in discussing the meaning of "as of right" in Gardner at p. 239 A.C.:

A temporary permission, although often renewed, would prevent an enjoyment from being "as of right"; but a permanent, irrevocable permission attributable to a lost grant would not have the same effect. The common law doctrine is that all prescription presupposes a grant. But if the grant is proved and its terms are known, prescription has no place.

[33] Finally, The Modern Law of Real Property [See Note 6 at end of document] contains a caution that the language of s. 2 of the Prescription Act cannot simply be interpreted at face value:

A hasty reading of section 2 might induce the belief that a right enjoyed for forty years is indefeasible unless it can be proved that it was enjoyed by virtue of a written grant. But this is not so. In the case of enjoyment for the shorter period the claim cannot be met by the objection that enjoyment originated subsequently to 1189, but it can be met and defeated by any one of the common law defences, namely:

a) that the right claimed lacks one or more of the characteristics essential to an easement; or

b) that the right in question, though enjoyed for twenty years, is prohibited by law, as, for example, because a grant would have been ultra vires the grantor; or

c) that the user was not as of right, i.e. that it was forcible, or secret, or enjoyed by permission whether written or oral.

Next, a claim to an easement based upon forty years' enjoyment can likewise be defeated upon the first two grounds, and also by proof that the user was forcible or secret or enjoyed by written permission. What is not sufficient to nullify a user lasting for this longer period is the oral permission of the servient owner.

(All citations omitted, emphasis in original)

[34] I will reproduce a portion of s. 31 of the Limitations Act for ease of reference:

31. No claim that may be made . . . by . . . prescription . . . to any . . . easement . . . when the way . . . has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated . . . by showing only that the way . . . was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and when the way . . . has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

(Emphasis added)

[35] Examined in context, it is apparent that the closing words of s. 31 relating to the 40-year time period are to be read in contrast with the preceding part of the section dealing with the 20-year time period. The words "consent or agreement expressly given or made for that purpose by deed or writing" in relation to the 40-year time period relate to the common law defence of permission given by deed or writing, and clarify that the defence of permission does not apply in full measure to the 40-year period. Rather, the defence is limited to written permission with respect to the 40-year period.

[36] Moreover, it is clear, in my view, that the words "consent or agreement expressly given or made for that purpose by deed or writing" cannot apply to a use as of right given by deed or writing. The very foundation of the law of prescription is the presumption that the use originated with a grant of the right claimed. Proof of a written agreement granting the right simply displaces prescription; it does not constitute a defence to the claim. On the other hand, permission negatives a claimant's assertion that his use was "as of right" and constitutes a real defence to the claim.

[37] In summary, I conclude that the closing words of s. 31 of the Limitations Act that preclude acquisition of a prescriptive easement based on 40 years of use if "it appears that [the easement] was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing" refer to a deed or written agreement creating a permissive use and do not apply to the 1955 Agreement, which created a "use as of right". However, I agree that, generally speaking, prescription is not applicable where there is a written document creating a "use as of right". As was noted [at p. 239 A.C.] in Gardner v. Hodgson's Kingston Brewery Co."if the grant is proved and its terms are known, prescription has no place."

[38] Mrs. Krieser interprets the applications judge's endorsement as granting an easement by prescription identical to the right-of-way granted in the 1955 Agreement and as foreclosing an easement by prescription. Further, she appears to assert, by her fifth ground of appeal, that the applications judge expanded his finding concerning the extent of the prescriptive easement when settling the formal judgment.

[39] I do not agree with that interpretation. A fair reading of the endorsement dated May 8, 2000, together with the evidence tendered on the application, indicates that that is not the case.

[40] Paragraph 2 of the endorsement is a discussion of the 1955 Agreement. It refers specifically to the dimensions of the right-of-way granted in the 1955 Agreement. Paragraph 6 of the endorsement [at p. 139 R.P.R.] speaks of "[t]he shared use of the driveway find[ing] its origin in the 1955 Agreement" and of the mutual driveway located on the respective properties being used constantly for ingress and egress for over 45 years. If the prescriptive easement as found by the applications judge were identical to the right-of-way granted in the 1955 Agreement, there would have been no need for him to speak of the driveway "find[ing] its origin" in that agreement.

[41] Although there was no evidence of the precise dimensions of the driveway as used before the applications judge on May 4, 2000, an aerial photograph of the driveway made it clear that the driveway as laid out was keyhole shaped, and not identical to the right-of-way granted in the 1955 Agreement. Moreover, there was evidence before the applications judge that the driveway had existed in the form shown in the aerial photograph since at least 1965, when Mr. Rose began going to the property, and that the keyhole area was important because it was used for parking and backing up so that drivers could exit the properties without backing on to Lake Drive East. In my view, the manner in which the applications judge settled the formal judgment makes it clear that he accepted the evidence tendered by Mrs. Rose that the keyhole shape reflects the driveway as used.

[42] Finally, the prescriptive easement found by the applications judge is materially different, in dimensions and configuration, than the right-of-way granted by the 1955 Agreement. Although it is true that the nature and basic location of the use had its origins in the 1955 agreement, the finding of continuous use related to a significantly different piece of property. I can see no bar to the applications judge's conclusion that Mrs. Rose is entitled to an easement by prescription in these circumstances.

[43] I would not give effect to this ground of appeal.

(2) Did the applications judge err in failing to find that as Mrs. Krieser lacked actual notice of the unregistered 1955 Agreement she acquired title to her property free and clear of that agreement?

[44] This ground of appeal presupposes that the trial judge erred in finding a prescriptive easement. The Registry Act, R.S.O. 1990, c. R.20, does not operate as a bar to a claim for a prescriptive easement: Garfinkel v. Kleinberg, 1955 112 (ON CA), [1955] O.R. 388, [1955] 2 D.L.R. 844 (C.A.); Myers v. Johnston (1922), 1922 567 (ON CA), 52 O.L.R. 658, [1923] 4 D.L.R. 1152 (C.A.); Israel v. Leith (1890), 20 O.R. 361 (C.A.). I would not give effect to this ground of appeal.

(3) Did the applications judge err in failing to find that the claimed easement is not reasonably necessary for the better enjoyment of the dominant tenement?

[45] This issue was not raised in submissions before the applications judge. I agree with Mrs. Rose's contention that it ought not to have been raised on appeal. However, it can be disposed of simply.

[46] The parties are agreed that one of the requirements for creation of a valid easement by prescription is that the easement must accommodate the dominant tenement, meaning that the easement must be reasonably necessary for the better enjoyment of the dominant tenement rather than merely conferring an advantage upon the owner and rendering his ownership more valuable.

[47] Mrs. Krieser contends that the Roses would have ample room to access their property via the portion of the mutual driveway located on their own land without the benefit of the prescriptive easement and that the prescriptive easement is not therefore reasonably necessary for the better enjoyment of the dominant tenement.

[48] In my view, it was open to the applications judge to conclude that the easement he found accommodates the dominant tenement based solely on the evidence concerning use of the keyhole portion of the driveway to permit drivers to avoid backing on to Lake Road East. There was also other evidence from the Roses concerning the difficulties they felt they would encounter if their access was limited to the portion of the mutual driveway located on their land.

[49] The applications judge did not address this issue specifically in his reasons. However, he is presumed to know the law and is not required to make specific findings on each and every issue, so long as the record supports his conclusions. This is particularly true where the parties have not identified a particular issue as being contentious.

(4) Did the applications judge err in failing to find that any permitted use of the Krieser property by the Roses was nothing more than an act of good neighbourliness that does not give rise to any legal rights?

[50] Mrs. Krieser contends that the Roses' use of the keyhole portion of the mutual driveway was occasional at best, and nothing more than an act of good neighbourliness on the part of the Kriesers. She relies on Henderson v. Volk (1982), 1982 1744 (ON CA), 35 O.R. (2d) 379, 132 D.L.R. (3d) 690 (C.A.) to support her submission that such use is insufficient to give rise to a prescriptive claim.

[51] The applications judge made specific reference to this submission and to Henderson v. Volk in relation to the whole of the driveway in para. 5 of his endorsement dated May 8, 2000. He rejected it in para. 6 of his endorsement [at p. 139 R.P.R.] when he found that the driveway had been used "constantly . . . for the purpose of ingress and egress" and that such use was non-permissive.

[52] Mrs. Krieser submits that this finding was unreasonable as to the keyhole portion of the driveway. In particular, she says:

Howard [Rose] testified that he used the whole of the pie or fan shaped area to turn around, but gave no evidence as to the frequency of such use, or over what period of time that use had extended. He did not give evidence as to how he could have done so in light of the evidence that the Roses parked on their side of the keyhole area and the Zale's parked on their side.

[53] Mrs. Rose testified on her cross-examination that the whole of the driveway was used as a mutual driveway, that occupants and visitors would usually drive down the centre portion of the narrow part of the driveway for safety reasons, and that what she described as the pie-shaped portion of the driveway was used for parking and turning around on both properties. Mr. Rose said that parties would back into the pie- shaped portion of the driveway in order to exit going forward.

[54] There is a clear inference from the evidence that use of the keyhole portion of the driveway was routine. The evidence supports the findings of the applications judge. I would not give effect to this ground of appeal.

(5) Did the applications judge err by accepting a draft reference plan as representing the mutual driveway without proper evidence when settling the form of judgment, and by extending the scope of the mutual driveway beyond the 16' driveway he described in his endorsement dated May 8, 2000?

[55] Mrs. Krieser contends that the applications judge's endorsement dated May 8, 2000 refers to an easement that is 16' wide. She submits that the applications judge erred by relying on the reference plan submitted to him on August 15, 2000 as defining the prescriptive easement when the reference plan significantly altered the easement he found, and when there was no evidence to link the reference plan to the evidence tendered on the application.

[56] I reject both of Mrs. Krieser's contentions. I dealt with her submission concerning the proper interpretation of the applications judge's endorsement in paras. 38 to 41 above.

[57] As for a link between the reference plan and the evidence tendered on the application, it is noteworthy that two draft reference plans, both prepared by the same surveying firm, were submitted to the applications judge on August 15, 2001. The draft reference plan prepared at the request of Mrs. Krieser depicts a 16' wide driveway. The draft reference plan ultimately selected by the applications judge was prepared at the request of Mrs. Rose.

[58] Both draft reference plans were appended to an affidavit sworn by a solicitor associated with counsel for Mrs. Krieser. The solicitor did not raise any objections concerning the "Rose" draft reference plan in his affidavit. The surveying firm that prepared the draft reference plans is the same surveying firm who had prepared a sketch of the Krieser property in 1997. The Kriesers received a copy of that sketch when they purchased their property. The sketch depicted the portion of the mutual driveway located on the Krieser property. Field notes pertaining to the driveway are included in the application material. The logical inference is that the surveying firm based the dimensions of their original sketch and their subsequent draft reference plan on findings made when they attended at the property.

[59] Mr. Rose's evidence given on cross-examination was that the aerial photograph of the driveway had been taken in about 1993 or 1994 and that the driveway had been in existence, to his knowledge, for over 35 years.

[60] Given all of these circumstances, I am satisfied that there was sufficient evidence before the applications judge to permit the inference that the draft reference plan commissioned by Mrs. Rose depicted the easement by prescription that he had found, namely the mutual driveway as it appears on the ground, and as it has been used for many years.

Disposition

[61] For the reasons given, the appeal is dismissed with costs to Mrs. Rose on a partial indemnity scale. If counsel are unable to agree on the quantum of costs, counsel for Mrs. Rose may deliver a bills of cost and brief written submissions within ten days following the release of these reasons. Counsel for Mrs. Krieser may respond within seven days thereafter.

Appeal dismissed.

Notes

Note 1: 2 & 3 Will. IV, c. 71.

Note 2: The Law of Real Property, 6th ed. (London: Sweet & Maxwell, 2000), at para. 18-140, citing the Law Reform Committee 14th Report, Cmnd. 3100 (1966), para. 40.

Note 3: This summary is derived from the Great Britain Law Reform Committee, 14th Report: Acquisition of Easements and Profits by Prescription, (1966), paras. 8-10.

Note 4: The Law of Real Property, at paras. 18-138 and 18-140.

Note 5: Citing Burrows v. Lang, [1901] 2 Ch. 502 at p. 510, 70 L.J. Ch. 607.

Note 6: Cheshire, 9th ed. (London, Butterworths, 1962), at p. 480.