DATE: 20020618 DOCKET: C36580

COURT OF APPEAL FOR ONTARIO

RE:

DELBERT LULOFF and RUBY LULOFF (Plaintiffs/Respondents in Appeal) v. GEORGE KAISER and ELIZABETH NAUMAN (Defendants/Appellants in Appeal)

BEFORE:

MCMURTRY C.J.O., O’CONNOR A.C.J.O. and BORINS J.A.

COUNSEL:

Gary Enskat

for the appellant

Tracy Lyle

for the respondent

HEARD:

June 11, 2002

RELEASED ORALLY:

June 11, 2002

On appeal from the judgment of Justice E.R. Millette dated May 29, 2001.

E N D O R S E M E N T

[1] [1] The appellants concede that there was sufficient evidence on which the trial judge could find that the respondents were entitled to a prescriptive easement over the appellants’ land. The trial judge declared that the easement was located over all of Part 5 on Reference Plan 49R-9641 which has a uniform width of 66 feet. This resulted in an easement over a road having a width of 66 feet.

[1] [2] The prescriptive right of the respondents to an easement must be confined to land they continuously used during the period in question. The evidence indicated that the width of the road used by the respondents did not exceed 25 feet in any one place and was narrower in other places. Accordingly, the effect of the judgment is to grant a declaration to the respondents for an easement that is wider than the road that the respondents use to gain access to their property. Unfortunately, the trial judge did not make a finding as to the width of the road in use by the respondents.

[2] [3] In the result, the appeal is allowed by varying paragraph 1 of the judgment to read as follows:

There shall issue a declaration that the plaintiffs are entitled to a prescriptive easement in the nature of a right-of-way in perpetuity for persons and vehicles over part of Lot 24, Concession 5 in the Township of Brudenell in the County of Renfrew for purposes of ingress and egress to and from Lot 23. The boundaries of such easement shall be as described in a survey of the existing roadway to be prepared by the plaintiffs at their expense and to be confirmed by the trial judge.

[3] [4] We see no reason to interfere with the costs award for the trial. There is divided success in the appeal. There will be no order as to the costs for the appeal.

“R. McMurtry C.J.O.”

“Dennis O’Connor A.C.J.O.”

“S. Borins J.A.”