DATE: 20031114

DOCKET: C36887

COURT OF APPEAL FOR ONTARIO

RE: CAROL BOONE (Plaintiff/Respondent) – and – KEN BRINDLEY and THE CORPORATION OF THE TOWNSHIP OF COLBORNE, LINDA LEE BRINDLEY, FARM CREDIT CORPORATION, and DONNA MARGARET THOMAS and HUNTER’S BEACH COTTAGE ASSOCIATION (Defendants/Appellants) – and between – JAMES GORDON LAFFERTY and HELEN KRONBURG JUTZI (Plaintiffs/Respondents) – and – KEN BRINDLEY, LINDA LEE BRINDLEY, DONNA MARGARET THOMAS, and THE CORPORATION OF THE TOWNSHIP OF COLBORNE (Defendants/Appellants)

BEFORE: O’CONNOR A.C.J.O., MOLDAVER and GILLESE JJ.A.

COUNSEL: Valerie D. Wise for Ken Brindley Michael E. Mitchell and A.M. Tymec for Carol Boone Jarvis K. Postnikoff for James Gordon Lafferty and Helen Kronburg Jutzi

HEARD: October 28, 2003

On appeal from the judgment of Justice Joseph M. W. Donohue of the Superior Court of Justice dated July 25, 2001.

E N D O R S E M E N T

[1] The trial judge relied upon clear evidence that for over forty years, the Hunter’s Beach cottages including the respondents and their predecessors in title, used the disputed area for parking of their vehicles. He was fully justified in concluding that the parking of the vehicles along the right of way was an ancillary right included with the grant of the right-of-way to the cottages.

[2] In determining that parking is an ancillary right, the trial judge properly considered those factors relevant to determining what is reasonably necessary to the enjoyment of the right of way, including a consideration of the language of the conveyance creating the easement, the purpose and circumstances surrounding the creation of the right of way, the history of its development and the circumstances of its use.

Prescriptive Easement

[3] In light of our conclusion on the issue of ancillary rights, it is not necessary to decide the question of whether the respondents acquired a right to park by way of prescriptive easement.

Breadth of Relief

[4] The appellant asks, in the alternative, that the relief ordered below be restricted in a number of ways. The first request is for an order making it clear that the right to park is limited to the respondents. In our view, no such order is required. By the express terms of paragraph 1 of the judgment, the declared rights are those of the respondents.

[5] The appellant also proposed a number of possible restrictions to the area in which parking was permissible on the right of way and that parking be restricted to certain months of the year. We see no basis upon which to alter the terms of the relief ordered below. The trial judge was called upon to determine the nature and extent of the ancillary rights. He arrived at his conclusions through an application of the correct legal principles and after a thorough review of the evidence.

[6] The other related requests seek orders of this court declaring the rights of the appellant as owner of the right-of-way. Those requests are not properly before this court, not having been argued or decided below.

Compensation to Boone for Cost of Tank Installation

[7] The legal basis upon which the trial judge ordered the appellant to pay the respondent, Carol Boone, the cost of the original installation of the holding tank is unclear. In light of the trial judge’s factual finding that the tank was improperly placed on the right of way due to the carelessness of both Boone and the appellant, the cost of the original installation shall be borne equally by them. We would not order interest to be paid on the sum that will consequently be due from the appellant to Boone because Boone has had the benefit of having the tank on the appellant’s land in the intervening period.

Nuisance

[8] There is no question but that the appellant’s conduct seriously interfered with the respondents’ use and enjoyment of their cottage properties, including that of the respondent Boone following the injunction. The damage award appears proper and based on reasonable conclusions of fact. There is no basis for appellate intervention.

Conclusion

[9] Accordingly, the appeal is allowed in part. Paragraph 7 of the Judgment shall be varied to read as follows:

This court orders that the plaintiff Carol Boone shall remove the holding tank located on the Disputed Street Allowance, at her expense, upon the Defendant reimbursing her for one half of the cost of the original installation of the holding tank and the cost of pre-packing and levelling the resulting hole shall be the Defendant’s to bear;

[10] As the respondents have been largely successful, costs of the appeal are ordered in their favour fixed in the amount of $10,000, inclusive of disbursements and GST, to the respondent Boone and $7,500, inclusive of disbursements and GST, to the respondents Lafferty and Jutzi.

“D.R. O’Connor A.C.J.O.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”