DATE: 20031219
DOCKET: C39081
COURT OF APPEAL FOR ONTARIO
FELDMAN, SIMMONS AND GILLESE JJ.A.
B E T W E E N:
SUSAN PEARL FALLOWFIELD and KENNETH HAROLD FALLOWFIELD
Gerrard McGeachy for the appellants
Applicants and Respondents by Counter-Application (Respondents)
- and -
Todd C. Hein
for the respondents
CLAUDE BOURGAULT and MARY FELTMATE
Respondents and Applicants by Counter-Application
(Appellants)
HEARD: May 9, 2003
On appeal from a judgment of Justice Silja S. Seppi of the Superior Court of Justice dated October 8, 2002.
FELDMAN J.A.:
[1] I have had the benefit of reading the reasons of my colleague, Gillese J.A., who would dismiss the appeal. Respectfully, I am unable to agree. The following are the reasons why I would allow the appeal.
[2] My colleague has set out the background facts relevant to this appeal. I will only review the facts in order to highlight the matters that are important for my analysis.
BACKGROUND FACTS
[3] The appellants and respondents are next-door neighbours. Their houses are approximately four feet apart and linked underground. When the subdivision was developed, a mutual easement was granted by deeds giving each neighbour an easement for repairs over the two-foot wide strip of land adjacent to the other’s house that runs between their homes. The easements run from the front corners to the back corners of the houses. [^1] The following is a sketch of the easements and the fence:
sidewalk
property line
fence
[4] In June 2002, the appellants built a fence that separates the front yard of their house from the front yard of the respondents’ house. The fence, which is on the appellants’ side of the lot line, begins at the sidewalk and ends two and one half inches in front of the land that is subject to the easement. The fence is built entirely on the appellants’ property that is not subject to the easement.
[5] The mutual easements between the parties’ houses were created with the subdivision and exist between sixty-four of the seventy-eight homes on the street. The configuration of these homes is that on one side there is open space, and on the other side between the homes there is the four-foot strip which is subject to the mutual repair easement.
[6] Access to the backyards of the homes is available on the non-easement side of each home. However, a predecessor in title to the respondents constructed a patio and deck at the back of their home on the open side, very close to the lot line, with the consequence that the respondents cannot access their backyard with equipment from that side of the house.
[7] The respondents brought an application for a declaration that the fence interferes with access to the easement for equipment wider than two feet, and for an injunction restraining the appellants from obstructing the easement or access to the easement.
[8] The application judge’s endorsement is reproduced below:
The issue is whether the fence constructed by the [appellants] on their own property constitutes an obstruction of the [respondents’] use of a registered easement over a 2’ strip of the [appellants’] land between their 2 houses. The easement allows the [respondents], their servants agents and workmen to enter in, over, upon and through the property for the purpose of maintaining and keeping the [respondents’] building in repair. The test is whether the fence, as constructed, substantially interferes with the easement’s legitimate use. Both properties have the same easement rights over the other with the result that the width of the maintenance and repair space between the houses is a total of 4 feet. The construction of the fence reduces the [respondents’] access to the easement from a 4 foot width to about a 26” width. A 28” wheelbarrow does not fit through any more, nor would any other maintenance and repair equipment that is wider than the reduced access point. The construction of the immovable 6 foot high section of the fence substantially interferes with the [respondents’] legitimate use of the easement. Using a wheelbarrow for needed brick or mortar repair is a reasonable exercise of the [respondents’] legitimate easement rights. Access by normal maintenance and repair equipment, as needed, which may well be wider than 26” should not be blocked.
In the result, there will be a declaration in accordance with Paragraphs 20, 21 and 22 of the [respondents’] factum, and an order that the 6’ high portion of the [appellants’] fence be forthwith removed or, in the alternative, modified so as to make it sufficiently portable to allow the [respondents] an unobstructed and unfettered access of a minimum of 4 feet to the subject easement.
The other relief claimed in the application and counterapplication are directed to a trial of the issues, pleadings, filings and disclosure to be as per the Rules of Civil Procedure [emphasis added].
ISSUES
[9] Three main issues are raised in this appeal:
(1) Did the grant of the easement to the respondents include an ancillary right to extend the easement to allow them to cross over the property of the appellants in front of the granted easement, in order to enter onto the four-foot strip with equipment wider than two feet?
(2) If the easement is not extended by an ancillary right, could a fence constructed wholly on the appellants’ property and not on land that is subject to the easement, constitute in law, an obstruction of the respondents’ reasonable use of the easement?
(3) Did the application judge err by finding that the fence substantially interferes with the respondents’ right to make reasonable use of the easement?
ANALYSIS
1. Ancillary Rights
[10] Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created. This principle is set out in Halsbury’s Laws of England, vol. 14, 4th ed. (London: Butterworths, 1980) at p. 26, para. 54:
The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances.
[11] In interpreting the meaning and intent of an express easement, the concept of ancillary rights arises. The grant of an express easement includes such ancillary rights as are reasonably necessary to use or enjoy the easement. However, to imply a right ancillary to that which is expressly granted in the easement, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable. Halsbury’s explains the concept at p. 10, para. 20, in the following way:
The express grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment. The ancillary right thus implied must be necessary for the use and enjoyment, in the way contemplated by the parties, of the right granted; it is not sufficient that such an ancillary right would be convenient, usual, common in the district or reasonable. The most usual example of such an ancillary right is the right of the dominant owner to enter the servient tenement and execute such repairs upon the subject matter of the easement as are reasonably necessary for the enjoyment of the easement. The dominant owner is entitled to protect his right to enter and repair by preventing the doing on the servient tenement of anything which would materially interfere with or render more expensive or difficult the exercise of the right, and the court will restrain such an interference by injunction. It is no defence to proceedings by the dominant owner to show that he may still exercise his right if he only expends more money or exercises greater skill.
[12] The classic example of an ancillary right was articulated by Parker J. in Jones v. Pritchard, [1908] 1 Ch. 630 (Ch.D.) at 638, where he stated:
Once again, the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Thus the grantee of an easement for a watercourse through his neighbour’s land may, when reasonably necessary, enter his neighbour’s land for the purpose of repairing, and may repair, such watercourse.
[13] The example demonstrates the necessity. Without the ancillary right to get to the watercourse, the grantee of the easement would have no physical access to that watercourse. Therefore, the grantee has the right to enter his neighbour’s land, when reasonably necessary, to get to the watercourse and effect repairs.
[14] In Goodhart v. Hyett (1883), 25 Ch.D. 182 (Ch.D.),[^2] the owners of a house had an easement for the supply of water from pipes on the adjoining land. An injunction was granted restraining the construction of a house on the adjoining land over the water pipes because it would interfere with the first owner’s ancillary right to go onto the adjoining property to repair the pipes. The court noted that although it might still be possible to repair the pipes with a house over them, it was not practical and would not allow the enjoyment of the easement as before.
[15] In the present case, the first issue for the application judge was to interpret the extent of the easement based on the wording of the grant, the circumstances at the time the grant was made, and the potential application of the ancillary rights doctrine.
[16] The wording of the clause granting the easement is clear in delineating the physical boundaries of the grant. The easement extends only to the front corners of the respective houses, but not beyond. As worded, the easement does not grant any right to the respondents to enter the easement from the appellants’ property in front of the easement; as worded, the respondents can only enter the easement from their own property.
[17] The purpose of the easement is unambiguous. It grants the respondents a right for them, their servants, agents and workmen, to enter in, over, upon and through the two-foot wide strip of land belonging to the appellants immediately adjacent to the appellants’ house, commencing at the front corner of the appellants’ house and ending at the back corner, for the purpose of maintaining and keeping their house in repair. Contrary to the submission of the respondents that they need access to the easement to bring their lawnmower to the backyard, the easement is not intended to be used to gain access to the backyard for gardening or other purposes.
[18] Moreover, because the grant of the easement occurred at the time of the planning and construction of the homes in the subdivision, it is the intention and circumstances at that time that govern. Therefore, the fact that at some point following the grant of the easement the respondents or their predecessors built a deck and patio at the back of their house obstructing their access to their backyard on the non-easement side of their house is irrelevant in construing the nature and extent of the easement.
[19] Once the wording of the grant has been interpreted in the context of the circumstances that existed at the time it was deeded, the next question is whether there are any ancillary rights, not included in the wording of the granted easement, that are reasonably necessary for the respondents to be able to exercise their use of the easement.
[20] The respondents’ position is that they cannot make effective use of the easement without being entitled to access it from the area in front of it on the appellants’ property. They say they need to have an entry way wider than two feet onto the easement from the front of the two houses, so that the easement as granted necessarily includes an area on the appellants’ property beyond the front corner of their home.
[21] In my view, there is neither a legal nor factual basis for this claim.
[22] As demonstrated by the cases referred to above, an ancillary right arises where it is necessary to give effect to the rights granted by the easement. Where, for example, there is an easement across one’s backyard for hydro wires, the hydro utility has the ancillary right to enter the yard in order to maintain the wires. Without the ancillary right, there would be no ability to access the wires.
[23] However, just because it may be more convenient to have an ancillary right that extends an easement, if it is not necessary for the effective use of that easement as granted, it will not form part of the easement.
[24] Furthermore, the courts have been particularly loath to imply an ancillary right that would have the effect of enlarging the dimensions of a granted easement onto land not included within its described boundaries. The recent decision of this court in Drumonde v. Moniz (1997), 105 O.A.C. 295, is an example of that reticence.
[25] That case involved a mutual driveway between two homes that extended into the backyards where the parties each had a garage. The full driveway was six feet, eleven inches wide. Drumonde’s son liked to turn his large car around at the back of the driveway and drive out facing forward. In effecting the turn-around manoeuvre, he would encroach on a portion of Moniz’s yard with part of his car. Moniz decided to build a fence wholly on his own property in the backyard beside the driveway to prevent this encroachment. Drumonde sought to enjoin Moniz from erecting the fence. The trial judge granted the injunction.
[26] On appeal, this court held that the trial judge erred in fact and in law, and granted a remedy to which Drumonde was not entitled. The evidence given by Drumonde’s son was that it was extremely tight for him to turn his car around in the driveway and that his left side mirror was millimetres away from the driveway wall. Austin J.A. considered the situation as described above, including the age and location of the houses, and concluded that the houses were built when cars were much smaller. He also found, at para. 15, that using the driveway of that size to turn around a large car “with one inch clearance on either side does not make a great deal of common sense.”
[27] The court held that the plaintiff was confined to the use of the easement as granted, and could not encroach on his neighbour’s yard. As a result, there was no reason why the defendant could not erect a fence on his own property beside the driveway, which fence did not obstruct the driveway itself. Austin J.A. held, at paras. 18-21:
The fundamental error in the judgment below, in my respectful view, is the finding that the erection of a fence on land owned by the defendants and unencumbered by a right-of-way would constitute an obstruction of the plaintiff’s use of the right-of-way. The fence would be entirely on the defendants’ property. As a result, it would be physically impossible for it to interfere with any legitimate use of the right-of-way. The two are mutually exclusive.
The plaintiff has a right to use a strip of land six feet, eleven inches wide and seventy feet long. He has no legal right to encroach, at road level, at a level one foot above grade or four feet above grade, beyond the width of that strip, with the bumpers, grille, doors or any other part of his vehicle.
The proposed fence would not be in the right of way; it would be beside the right-of-way. Consequently, the fence, provided it is built entirely on the defendants’ land, and provided it goes straight up and does not overhang the mutual driveway, could not obstruct the right-of-way; neither could it obstruct lawful use of the right-of-way.
[28] Although it clearly would have been more convenient for the plaintiff to have access to a wider turning circle than was provided by the dimensions of the granted easement, the court refused to find that it was necessary for the reasonable use of the easement. If there was no extension of the easement beyond its granted boundaries, then it followed that a fence that did not obstruct the easement as granted could not be enjoined.
[29] Importantly, Austin J.A. also noted that counsel were unable to cite any case in which relief was granted in similar circumstances.[^3] He held that the English Chancery case of National Trust for Places of Historic Interest or Natural Beauty v. White, [1987] 1 W.L.R. 907 (Ch.D.), relied on by the trial judge, did not support the trial judge’s result. Austin J.A. noted, however, that the trial judge in National Trust, at 914, made a comment that was relevant to the Drumonde case. He referred to the case of Todrick v. Western National Omnibus Co. Ltd., [1934] Ch. 190 (Ch.D.), as standing for the proposition that, “it could not have been within the contemplation of the parties at the time of the grant that a way that was only 7 ft. 9 ins. wide should be used for omnibuses 7 ft. 6 ins. wide, leaving only 1 1/2 ins. clearance on each side.”
[30] A case not referred to by Austin J.A., where the court reached a different conclusion than Austin J.A. did in Drumonde on the intent of a grant is V.T. Engineering Ltd. v. Richard Barland & Co. (1968), 19 P. & C.R. 890 (Ch.D.). In that case, the landlord leased an industrial building at the back of its property to the tenant together with a right of way over a winding roadway leading from street to the tenant’s premises. The tenant used the roadway to transport large steel beams from its premises in large trucks. The landlord wanted to construct a building up to and over the roadway leaving it effectively as a covered tunnel with pillars at intervals along the road to hold up the roof. Issues arose regarding both the tenant’s use of the vertical and lateral swing space from the road. In considering the issue of the tenant’s right to lateral swing space, Megarry J., at 895, stated:
I can well see that on the grant of a right of way the grantor must accept that over the way granted he cannot thereafter exercise rights which materially interfere with the enjoyment of the easement. It may perhaps be that he must allow some degree of tolerance for wide loads, so that he cannot fence or build up to the very edge of the way granted, but must leave a freeboard of a foot or two, particularly if there are bends in the way. But that is very different from saying that the grant of a way may in effect sterilise a strip of land of indefinite depth on each side of the way, depending on the loads and methods of loading from time to time adopted. This seems to me to go far beyond any necessary or reasonable expectation or implication; and quite apart from the absence of authority on the point, it seems to me that such a right would or might subject the grantor to a quite unjustifiable burden. I accordingly reject such a claim.
[31] Contrary to the conclusion reached by the court in Drumonde, in the circumstances of the right of way granted in V.T. Engineering, Megarry J. was satisfied that the granted right of way included, in effect as a necessary ancillary right, the right to encroach to the extent of a foot or two over the side of the road to accommodate the wide loads carried by the tenant’s trucks, particularly because there were bends in the road necessitating such encroachment. In that case, it appeared that the trucks would not be able to negotiate the turns with their loads without some limited encroachment. As a result, the proposed pillars right at the edge of the road would interfere with what the court found to be the tenant’s reasonable use of the easement, as extended by the necessary ancillary right.
2. Substantial Interference
[32] Some confusion has arisen regarding the application of the doctrine of substantial interference as a result of a misinterpretation of the English Court of Appeal case of Pettey v. Parsons, [1914] 2 Ch. 653 (Ch.D.), which was cited by the trial judge in Drumonde as authority for the proposition that:
[A] party sharing a right-of-way may fence his property only if such fencing does not substantially interfere with the adjoining owner’s reasonable enjoyment of the right-of-way as created.
[33] In Drumonde, Austin J.A., at para. 22, cleared up the confusion. The confusion arises because the statement is correct where, as in Pettey, a fence is erected by a party on the part of the party’s land that constitutes the easement. However, it does not apply in circumstances as existed in Drumonde, where the fence is erected on the part of the party’s land that is not subject to the easement. Many cases, like Pettey, address what structures a party may erect on an easement itself, as a party is not precluded from placing some chattels or erecting a fence or gate on an easement, as long as what is done does not substantially interfere with the other party’s use of the easement that was granted to that party. See for example, Mackenzie v. Matthews (1999), 46 O.R. (3d) 21 (C.A.), National Trust, supra, Ledrew v. Geist, [1988] O.J. No. 852 (Dist. Ct.), Lafferty v. Brindley (2001), 8 R.P.R. (4th) 279 (Sup. Ct.), varied on other grounds, [2003] O.J. No. 4256 (C.A.), Celsteel Ltd. v. Alton House Holdings Ltd., [1985] 1 W.L.R. 204 (Ch.D.), Keefe v. Amor, [1965] 1 Q.B. 334. That, of course, is a completely different issue than what a party may do on the part of its own land that is not encumbered by the easement.
[34] For example, the Ontario case of Lewis v. Wakeling (1923), 54 O.L.R. 647 (C.A.), referred to by Austin J.A., was also a situation where the defendant had a right of way over an adjoining strip of the plaintiff’s property, seven feet by eighty feet, and the plaintiff wanted to erect a boundary fence on the right of way to separate the two properties. Again, the issue was the constraints on the right of the owner of the servient tenement (i.e., the parcel of land part of which is subject to a right of way) to build a fence on the portion of the land that is subject to the right of way. The plaintiff was entitled to do so, as long as the defendant had reasonable access to the right of way through a gate.
[35] Similarly, in the recent Ontario Court of Appeal case of MacKenzie v. Matthews, supra, the issue also involved the right of the owner of the servient tenement to erect a boundary fence on the easement itself, and whether such a boundary fence would amount to a substantial interference with those who had the right to use the easement. Matthews was not a case where the owner of the servient tenement wanted to erect a fence on the part of his land that was not encumbered by the easement (as in the present case).
[36] Interestingly, National Trust, supra, and Matthews were quite factually similar cases. Each concerned access by the owner of the dominant tenement from an easement to an area that was adjacent to the easement but not on the servient tenement, which areas were used, in one case, for parking vehicles and, in the other, for a vehicle turn-around area from the easement. In both cases, the court prohibited the owner of the servient tenement from constructing a fence on the easement that would have blocked access to the adjacent vehicle use area.
[37] The 1977 Wisconsin case of Hunter v. McDonald, supra, which was referred to in the Ontario High Court case Rice v. Bleta, [1986] O.J. No. 136 (H.C.), appears to be inconsistent with both the English and Canadian jurisprudence, and has been the subject of some thoughtful criticism. See Note, Easements – Nuisances – Right of Convenient Use, 1977 Wis. L. Rev. 1226. I would not follow the Hunter case.
3. The Findings of the Application Judge
[38] In the present case, the respondents are effectively claiming an ancillary right to enter the easement by crossing over the appellants’ property situated in front of the easement. The effect of their claim is that the easement extends beyond its described boundary at the corner of the appellants’ home an indefinite distance to allow the respondents to bring three to four-foot wide pieces of equipment into the space between the homes for the purpose of effecting repairs. The fence erected by the appellants on their own property effectively prevents such trespassing. Of course, if the respondents have a valid ancillary right to cross the appellants’ property to enter the easement, then they would not be trespassing.
[39] The application judge described the issue before her as whether the fence the appellants constructed on their own property “constitutes an obstruction of the [respondents’] use of a registered easement over a 2’ strip of the [appellants’] land between their 2 houses.” She stated that the test was “whether the fence, as constructed, substantially interferes with the easement’s legitimate use.” The application judge assumed that the construction of the fence reduced the access to the easement, without first considering the applicability of the ancillary rights doctrine.
[40] In my view, the application judge erred in law by characterizing the issue and the test in this way. The application judge began with the issue of substantial interference before considering the meaning and the extent of the easement.
[41] Only after the extent of the easement has been determined should the court consider whether what was done constitutes a substantial interference with the intended use and enjoyment of the easement. Where there is no ancillary right to expand the easement beyond the dimensions described in the grant, then as this court stated in Drumonde, at para. 18, a fence constructed on one’s own property and not on the easement itself cannot constitute an obstruction of the use of the easement by the other party: “[I]t would be physically impossible for it to interfere with any legitimate use of the right-of-way.”
[42] In my view, there is no basis to conclude that the easement as granted includes the ancillary right to enter the easement by crossing over the appellants’ property that lies in front of the easement beside the appellants’ house. I reach that conclusion for several reasons:
- The wording of the easement is clear and unambiguous and defines the easement with precise dimensions. There is no basis on the wording of the easement to imply an extension of the defined boundaries.
- The easement was so described in the context of houses that were built four feet apart, i.e. in full knowledge of the limitations on access that were created by the placement of the houses and the dimensions of the mutual easement.
- The easement was not intended as a pass-through for equipment to the backyard. At the time of the grant, there was ample space to bring any backyard equipment including for gardening around the other side of the house.
- Although in the current circumstances it might be more convenient for the respondents to bring a wheelbarrow that is wider than two feet onto the easement without tipping it sideways, it is not necessary to do so. There is no evidence to suggest that the two-foot opening is not wide enough to accommodate ladders, smaller wheelbarrows and other equipment that may be necessary to effect repairs.
- It is worth noting that the extent and effect of the mutual easements, as granted, is the same for both neighbours: neither can enter the easement between the houses, either from the front or from the backyard, with a piece of equipment wider than two feet, without permission from the other to cross over a portion of the other’s property.
CONCLUSION
[43] I would answer the three issues raised on the appeal as follows:
- There is no basis for implying a right necessarily ancillary to the easement granted to the respondents, extending the dimensions of the easement to the appellants’ property in front of the easement for the purpose of allowing the respondents to bring equipment wider than two feet onto the easement.
- Because the easement is not extended by an ancillary right, the fence constructed by the appellants on their own property that is not subject to the easement cannot, in law, constitute an obstruction of the respondents’ right to the reasonable use of the easement granted to them.
- The application judge therefore erred when she found that the fence constructed by the appellants constitutes a substantial interference with the respondents’ right to make reasonable use of the easement.
[44] I would therefore allow the appeal with costs fixed at $3,500.
Signed: “K. Feldman J.A.”
“I agree Janet Simmons J.A.”
GILLESE J.A. (Dissenting):
[45] Claude Bourgault and Mary Feltmate, the appellants, live next door to Susan Fallowfield and Kenneth Fallowfield, the respondents. Their houses are separated by a four-foot wide strip of land. The parties’ joint property line runs down the middle of the four-foot strip of land.
[46] The four-foot strip of land is subject to mutual easements for the maintenance and repair of the parties’ homes.
[47] The appellants built an immoveable fence that has the effect of partially blocking the respondents’ access to the four-foot strip of land.
[48] The respondents applied for an order requiring the appellants to remove that part of the fence that blocked access to the easement. The applications judge made the order on the basis that the fence constituted an obstruction that substantially interfered with the respondents’ legitimate use of the easement.
[49] The appellants appeal on the basis that, as the fence is built entirely on their own property, the fence cannot constitute an obstruction of the easement. Alternatively, they argue that even if the fence does obstruct the easement, it does not substantially interfere with the respondents’ legitimate use of the easement.
[50] For the reasons that follow, I would dismiss the appeal.
BACKGROUND
[51] The appellants and the respondents live next door to one another. They do not get along.
[52] Their houses are approximately four feet apart. Their joint property line runs down the middle of the four-foot strip of property between their houses. The parties have matching easements over the two-foot-wide strips of land that they do not own. The easements run for only the length of the houses.
[53] The respondents’ easement is stated to be:
a right in the nature of an easement in favour of the owners and occupants from time to time of PART 4 and PART 44 on Plan 43R-6275 their servants, agents and workmen, to enter in, over, upon and through PART 43 on Plan 43R-6275 at all reasonable times for the purpose of maintaining and keeping in repair the building erected on PART 4 on Plan 43R-6275.
[54] The appellants built a fence that is situated entirely on their own property; no portion of the fence is on the land that is subject to the easements. The fence begins at the front sidewalk and runs parallel to the property line. (It is 3 inches within the appellants’ side of the joint property line.) The fence ends approximately 2.5 inches before the four-foot strip of land between the parties’ houses over which the easements run.
[55] The fence is uneven in height. That portion of the fence that begins at the front sidewalk is approximately three feet in height but, at the end of the fence that lies closest to the easements, the fence is six feet high.
[56] When the respondents bought their property in 1987, there was a wooden deck on the west side. It remains in existence. The four-foot strip of land is on the east side of their property. There is no easement on the west side of their property. Because of the deck, the respondents can access their backyard only from the east side of their home.
[57] The appellants have access to their backyard from both sides of their property. Since construction of the fence, they use the east side of their property for access to their backyard.
[58] The applications judge found that the fence reduced the respondents’ access to the easement from a four-foot width to about a twenty-six inch width. She further found that, as a result of the reduced access, the respondents could no longer take their twenty-eight inch wheelbarrow onto the easement nor could they bring in any other maintenance or repair equipment that is wider than the reduced access point. She held that using a wheelbarrow or other such maintenance equipment for needed brick or mortar repair was a reasonable exercise of the respondents’ legitimate easement rights and ordered the appellants to remove that portion of the fence that blocks access to the easement or to modify the fence so as to make it sufficiently portable that access could be had as necessary.
[59] The appellants argue that they are entitled to retain the fence because it lies entirely upon their own property. The errors that they allege the applications judge made form the issues for resolution on this appeal.
THE ISSUES
[60] Three issues must be determined in this appeal. Did the applications judge err:
(1) in law, in holding that the appellants’ fence could constitute an obstruction of the easement?
(2) in fact, in finding that the fence substantially interferes with the respondents’ legitimate use of the easement? or,
(3) in the relief ordered?
Issue #1 – Does the fence constitute an obstruction of the easement?
[61] The appellants argue that the applications judge erred in law in holding that their fence, which was erected wholly on their own property, could constitute an obstruction of the respondents’ easement. They rely on the following passage from this court in Drumonde v. Moniz, [1997] O. J. No. 4812 at para. 18:
The fundamental error in the judgment below, in my respectful view, is the finding that the erection of a fence on land owned by the defendants and unencumbered by a right- of-way would constitute an obstruction of the plaintiff’s use of the right-of-way. The fence would be entirely on the defendants’ property. As a result, it would be physically impossible for it to interfere with any legitimate use of the right-of-way. The two are mutually exclusive.
[62] The respondents, on the other hand, point to this court’s more recent decision of MacKenzie v. Matthews (2000), 46 O.R. (3d) 21, 180 D.L.R. (4th) 674, (1999), 28 R.P.R. (3d) 1, in which both the reasoning and the result appear to conflict with that in Drumonde.
[63] A close examination of the two cases is warranted.
[64] In Drumonde, the parties lived next door to one another for a number of years. They shared a driveway, each house being subject to an easement in favour of the other. In 1990, Drumonde’s son bought a larger car and replaced his single garage with a two-car garage. The son preferred to turn his car around before entering the driveway so that he could turn onto the street facing forward. In performing this manoeuvre, he generally drove over a part of the Moniz’ backyard. The Moniz’ intended to build a fence along their property line immediately south of where the mutual driveway ended. If the fence were erected, Drumonde’s son could no longer pass over Moniz’ property. Expert evidence established that the son could continue the same manoeuvre and turn his car around before entering the driveway, if he drove very slowly and carefully.
[65] Drumonde brought an application to enjoin Moniz from building the fence on the grounds that the fence would interfere with his use of the mutual driveway. The trial judge granted the injunction, finding that the fence would constitute a substantial interference with Drumonde’s use of the right of way.
[66] On appeal, this court reversed the decision. Austin J.A. wrote, at paragraphs 14, 19, 21 and 26:
The area of concern here is one faced by citizens every day of the week: using ordinary care and ordinary sense, can the driveway be navigated without undue difficulty? … The fact that the son had been using the driveway for four years at the time of the trial, with no damage to anything other than his patience, suggests strongly that the answer to the question is “yes”.
The plaintiff has a right to use a strip of land six feet, eleven inches wide and seventy feet long. He has no legal right to encroach . . . beyond the width of that strip, with the bumpers, grille, doors or any other part of his vehicle.
The proposed fence would not be in the right-of-way; it would be beside the right-of-way. Consequently, the fence, provided it is built entirely on the defendants’ land, and provided it goes straight up and does not overhang the mutual driveway, could not obstruct the right-of-way; neither could it obstruct lawful use of the right-of-way.
There has been no limitation to, or obstruction of, the plaintiff’s access from his property into the right-of-way by the defendants. I would therefore allow the appeal and set aside the judgment below.
[67] In Mackenzie v. Matthews, the respondents owned two islands across the lake from the mainland. The respondents had access to their island properties by means of a right of way over the applicants’ land. The applicants sought a declaration that they were entitled to erect a fence on the western boundary of their property. At first instance, the respondents (and other authorised users of the right of way) were declared to have the right to access a portion of the land adjacent to the right of away for purposes of “vehicle turnaround” and it was held that the applicants had no right to fence the western boundary of their property to preclude access to the vehicle turnaround.
[68] This court upheld the applications judge but varied the judgment to permit the applicants to build a fence with an unlocked gate which would enable the respondents to use the vehicle turnaround. In so holding, the court adopted the principle found in English law that an owner’s right to erect a fence on his or her own property is not absolute but, instead, is subject to a neighbour’s easement rights.
[69] Sharpe J.A. wrote (at paragraphs 8, 13 and 14):
I also agree with the applications judge that “the grant of an 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”. The easement was specifically intended to afford owners of the islands access to their properties by boat and the installation and maintenance of a dock is implicit in such an easement… I agree that the installation and maintenance of a dock is an ancillary right that is reasonably necessary to the use and enjoyment of the easement in question: see Jones v. Pritchard, [1908] 1 Ch. 630 [(Eng. Ch. Div.)] at p. 638…; Smith v. Morris, [1935] O.R. 260 [(Ont. C.A.)] at pp. 264-265…
The appellants [the servient owners] also rely on the common law right of an owner to fence his or her property: Lewis v. Wakeling (1923), 54 O.L.R. 647 (C.A.). They say that this right allows them to fence the western boundary of their land, and precludes the respondent island owners from accessing the vehicle turnaround area on the Matthews property.…
I have found that access to and from the vehicle turnaround is a reasonable ancillary use. Such use benefits no right or interest other than the easement itself. In my view, it follows that the appellants’ common law right to fence their property has been limited by the easement to the extent necessary to afford the respondents access to and from the vehicle turnaround.
[70] Based on Mackenzie v. Matthews, the fence in question is an obstruction as it has the effect of interfering with the respondents’ access to the easement.
[71] While the two cases appear to conflict, in my view they do not. There are two parts to a determination of whether the fence in this case is an obstruction: first, is the fence an obstruction in law and second, is it an obstruction in fact. In my view, Mackenzie v. Matthews speaks to the first part of the analysis whereas Drumonde addresses the second.
[72] Drumonde was decided on the basis of reasonable use -- that is, whether the fence was actually an obstruction. The Drumondes could still use the right of way as intended although, when driving larger cars, they had to be more careful and drive more slowly. In that sense, the Moniz’ fence did not obstruct or interfere with the Drumondes’ use of the right of way; the fence merely prevented the Drumondes from driving over the Moniz’ property. In other words, in Drumonde, the court was dealing with whether an ancillary right would attach to the easement not whether an ancillary right could attach to the easement. The court found, on the facts of that case, the fence did not obstruct the easement, given its legitimate use. Thus, I do not read Drumonde as standing for the proposition that a fence built entirely on the servient owner’s property can never obstruct an easement; rather, the court found that on the facts of the case, the fence did not obstruct the easement.
[73] On the other hand, I see the case at bar as posing the same question as that considered by this court in Mackenzie v. Matthews, namely, whether the fence in law can constitute an obstruction. In both the case at bar and in Mackenzie v. Matthews, the proposed fence would have the effect of interfering with ancillary rights. In Mackenzie v. Matthews, the ancillary right was use of the vehicle turnaround. In the case at bar, it is passing over the appellants’ property to gain access to the easement. Both are ancillary rights necessary for the reasonable enjoyment of the easement and are interfered with by the fence.
[74] Although there are very few decided cases on point, in my view the weight of authority supports the position that this court adopted in Mackenzie v. Matthews. In so concluding, I rely on the decision of the Supreme Court of Canada in Wheeler v. Black (1887), 14 S.C.R. 242 and four cases decided in Ontario: Lewis. v. Wakeling (1923), 54 O.L.R. 647 (C.A.), Rice v. Bleta, [1986] O.J. No. 136 (H.C.), Ledrew v. Geist, [1988] O.J. No. 852 (Dist. Ct.) and Lafferty v. Brindley, [2001] O.J. No. 5936 (Sup. Ct.), varied on appeal on an unrelated issue [2003] O.J. No. 4256 (C.A.).
[75] In Wheeler, the plaintiffs had obtained, by deed, a right of draining their property through an alley on property belonging to the defendants. The defendants built a barn over the drain. When the drain needed repairs, the plaintiffs brought an action in which they sought an order requiring the defendants to demolish the portion of the barn that diminished their use of the drain.
[76] Ritchie J., writing for the majority, held that the barn materially interfered with the plaintiffs’ means of access to the drain. He affirmed the judgment given by the court below that required the defendant to demolish the part of the barn that covered the drain, thereby enabling the plaintiffs to repair the drain as easily as they could have when the drain was not covered.
[77] In a concurring judgment, at p. 245, Strong J. held:
The law governing this case is precisely identical with the law of England as appears by the case of Goodhart v. Hyett… That decision is entirely in point, and the law it lays down is precisely similar to that of the Province of Quebec.
[78] In the English case of Goodhart v. Hyett (1884), 25 Ch. D. 182 (U.K.) referred to by Strong J., the plaintiffs lived in a house that was located approximately 300 yards from ‘The Bottomless Pit’, a deep spring of water. The spring was located on the defendant’s land. Pipes passed from the spring over the defendant’s land and supplied water to the plaintiff’s house and grounds. The defendant wished to build a house over the land under which the pipes ran. The plaintiffs obtained an injunction preventing him from building the house in that location. The court held that the right to have the pipes as an easement across the land carried with it the right to enter on the land to do that which was necessary to preserve the right. In response to the defendant’s argument that building the house would not make it impossible for the plaintiffs to enter and repair the pipes but only more difficult, the court said this at p. 187:
… the fact that the Plaintiffs would continue to have the right to do it is not enough. They must have the opportunity and the means of doing it; and the question is whether anything which the Defendant is doing will practically and really in any way obstruct the doing of what the Plaintiffs are entitled to do …(emphasis added)
[79] Using the test as framed in Goodhart, the question for resolution in this appeal is whether the appellants’ fence “practically and really in any way obstruct[s]” the respondents’ right to use the easement for the purposes of maintaining and repairing their home. In my view, there can be no question but that the fence is such an obstruction.
[80] Both the result and the reasoning in Wheeler and Goodhart apply in the instant case. Thus, the respondents are entitled to have the fence altered so that they may have the same access to the easement that they did prior to the building of the fence.
[81] As previously indicated, in my view the jurisprudence of this province is to the same effect.
[82] In Lewis v. Wakeling, a majority of this court held that the plaintiff was entitled to erect a fence on the boundary of his land only if the fence had a gate or gates in it that gave the defendant reasonable access to his right of way.
[83] In Rice v. Bleta, the parties were neighbours who shared a mutual driveway. The defendant built a fence, on his property, that ran alongside the driveway but which fell outside the right of way. The plaintiffs brought an application for an interim injunction to have the fence removed, on the basis that it impeded their use of the driveway. The plaintiffs deposed that the property could not be used, that their van could just barely get through the right of way without scraping the side of the house and that one of the mirrors on the passenger side had to be removed in order for their vehicle to ease through the space to be parked at the rear of their residence.
[84] The motions judge granted the interim injunction and ordered the defendant to remove his fence within seven days. The motions judge cited this court’s decision to the effect that property owners do not “have an unbridled licence to wreak havoc on their neighbours”: Pugliese v. National Capital Commission (1977), 17 O.R. (2d) 129 (C.A.) at p. 19 (QL), appeal to the Supreme Court of Canada dismissed 1979 32 (SCC), [1979] 2 S.C.R. 104. He also referred to the American case of Hunter v. McDonald, 254 N.W. (2d) 282 (1977), (Supreme Court of Wisconsin) for the proposition that a servient owner may be enjoined from obstructing the use of an easement even when the obstruction does not physically encroach upon the easement.
[85] In Hunter v. McDonald, a servient owner placed rocks, posts and fence posts alongside a right of way (a roadway) in order to slow down the dominant owner’s vehicles that allegedly were speeding. The obstructions were on the servient owner’s own property and did not encroach upon the easement. On appeal, the Supreme Court of Wisconsin affirmed the trial judge’s order for the removal of the obstacles on the basis that they interfered with the dominant owner’s reasonable use of the right of way. The Supreme Court wrote, at page 285:
[A]n easement ‘is a permanent interest in another’s land with a right to enjoy it fully and without obstruction …’. While the owner of property subject to an easement may make all proper use of his land including the right to make changes in or upon it, nevertheless such owner may not unreasonably interfere with the use by the easement holder. . . . This oft-repeated statement of the servient owner’s rights and duties virtually always phrases his duty in terms of protecting the easement holder’s right to use the easement for the purpose for which it was created.
At 28 C.J.S. Easements, para. 96, it is stated,
An obstruction or disturbance of an easement is anything which wrongfully interferes with the privilege to which the owner of the easement is entitled by making its use less convenient and beneficial than before. Obstructions or disturbances are unauthorized and constitute nuisances.
. . .Thus, physical encroachment upon the property of the complaining landowner is not required. We conclude that even if the rocks, posts, fence and fence posts do not physically encroach upon the easement, these items may nevertheless unreasonably obstruct the use of the easement to which the plaintiffs are entitled.
[86] In Ledrew v. Geist, the servient owner built a steel fence along the westerly edge of his property. The fence blocked the dominant owner’s access to a right of way along a lakeshore. The dominant owner applied for an interim injunction enjoining the servient owner from interfering with his easement rights. The interim injunction was granted; the servient owner was “enjoined from interfering with the rights of way of the applicants in any way”. The decision is brief and the facts not entirely clear. However, the decision supports the proposition that a fence built on a servient owner’s property, and not on the easement itself, may be ordered removed if it impedes access to a dominant owner’s right of way.
[87] In Lafferty v. Brindley, a servient owner had placed wrecked cars on a right of way in order to prevent his neighbours from parking there. The motions judge ordered the cars removed on the basis of both property law and the law of nuisance.
[88] The principle underlying these cases is that voiced by Masten J.A. in Smith v. Morris, [1935] O.R. 260 (C.A.) at 264 when granting judgment to a dominant owner, albeit in a different context:
While the burden imposed on the servient tenement is not to be increased by the action of the owner of the dominant tenement, regard must be had to the fact that the predominant idea is that the dominant tenement shall really enjoy the easement granted, not as a mere theoretical right on paper, but by a real physical enjoyment of the right conferred. (Emphasis added.)
[89] The English jurisprudence is to the same effect. In Celsteel Ltd. v. Alton Homes Ltd. [1985] 1 W.L.R. 204 (Ch. Div.), the defendants proposed to build a car wash on part of a driveway over which the plaintiffs had a right of way. The car wash would have had the effect of reducing the width of a driveway from 9 metres to a width of 4.14 metres. As this was a substantial interference with the plaintiff’s right of way, an injunction was issued restraining the construction of the car wash.
[90] The applications judge referred to Keefe v. Amor [1965] 1 Q.B. 334, a decision of the English Court of Appeal in which it was held that obstacles on a servient owner’s property are actionable where such obstacles impede the user of the strip from the “exercise of the right granted as from time to time is reasonably required by the dominant tenant” (at p. 217).
[91] He referred also to the case of Pettey v. Parsons, [1914] 2 Ch. 653 (C.A.) in which a servient owner was permitted to build a fence across an easement, provided it contained a gate and did not interfere with the easement’s reasonable use by the dominant owner.
[92] In addition, the English case of V.T. Engineering Ltd. v. Richard Barland & Co. Ltd. (1968), 19 P. & C.R. 890 (Ch.D.) held that an ancillary right can attach to an easement where the ancillary right would affect the use that the servient owner can make of his or her land that is not subject to the easement.
[93] In V.T. Engineering, the defendant had leased part of its premises to the plaintiff and had retained the other part of the premises for its own use. The lease included a grant of a right of way “at all times and for all purposes” over a roadway on the landlord’s part of the property leading to the tenant’s part of the property. The plaintiff tenant was in the business of creating large metal structures and used the right of way to bring in materials and to transport the large metal structures from the leased premises once they were produced.
[94] At some point during the lease, the defendant landlord wanted to extend the building it occupied on the part of the premises that it had retained for its own use. The landlord proposed extending its building over the right of way but offered to create a tunnel through the extension so that the tenant could continue to use the right of way. The proposed extension would not be built on the ground covered by the right of way, but would be built up to both edges of the right of way, and would be built in the airspace over the ground covered by the right of way. The tenant objected as it would not provide the tenant with enough room, horizontally or vertically, to take the large metal structures away from the premises. The court referred to the objection as one regarding “swing space” and considered it both as an objection regarding vertical “swing space” and as an objection regarding horizontal or lateral “swing space”.
[95] What is relevant for our purposes is the court’s treatment of the plaintiff’s objection regarding lateral swing space because, as in the case at bar, a construction close to the edge of the easement, while not on the easement, was interfering with the owner of the dominant tenement’s ability to swing equipment over land not subject to the easement in using the easement. The question before the court in V.T. Engineering, like the question before this court, is whether the grant of an easement can include an ancillary right for the owner of the dominant tenement to take an object over the land belonging to the servient owner that is not subject to the easement.
[96] The court dealt with this issue in the following manner:
Let me take lateral swing space first, and assume as an example the grant of a right of way over a roadway eight feet wide. Let me further assume that there is no wall or hedge on either side. If there is an implied right of lateral swing space, the servient owner can never erect any wall or building abutting on the roadway lest it interfere with the dominant owner’s rights. The dominant owner is, on this view, entitled not only to ingress and egress over the eight feet road, and to occupy it with stationary vehicles being loaded or unloaded, but also to have a strip on either side of the roadway, of indefinite dimensions which depend on the size and manoeuvrability of the goods which he or some successor in title of his may later choose to receive on the dominant tenement or despatch from it, kept free from any obstruction which might hinder the loading or unloading.
I can well see that on the grant of a right of way the grantor must accept that over the way granted he cannot thereafter exercise rights which materially interfere with the enjoyment of the easement. (pp. 894-95)
[97] In conclusion on this point, in my view, the case at bar falls within the narrow class of cases in which ancillary rights can affect the use that the dominant owner can make of his or her land that is not subject to the easement.
Issue #2 – Does the fence substantially interfere with the respondents’ legitimate use of the easement?
[98] The test for determining whether the fence, in fact, obstructs the easement is whether the fence substantially interferes with the respondents’ reasonable use of the easement.
[99] As this court stated in MacKenzie v. Matthews at para. 12:
There is no mechanical way to determine what constitutes an unreasonable demand upon an easement. Each case depends upon both a proper construction of the instrument creating the easement and the factual circumstances: see: Laurie v. Winch,… 1952 10 (SCC), [1952] 4 D.L.R. 449 (S.C.C.) at p. 455; National Trust for Places of Historic Interest or Natural Beauty v. White, [1987] 1 W.L.R. 907 (Ch.D.) at 913. It is important to consider the language of the conveyance creating the easement, its purpose and the circumstances of its creation, the history of its development in conjunction with the vehicle turnaround, and the circumstances of its use.
[100] After setting out the test, the applications judge concluded:
Both properties have the same easement rights over the other with the result that the width of the maintenance and repair space between the houses is a total of 4 feet. The construction of the fence reduces the applicants’ access to the easement from a 4 foot width to about a 26” width. A 28” wheelbarrow does not fit through any more, nor would any other maintenance and repair equipment that is wider than the reduced access point. The construction of the immovable 6 foot high section of the fence substantially interferes with the applicants’ legitimate use of the easement. Using a wheelbarrow for needed brick or mortar repair is a reasonable exercise of the applicants’ legitimate easement rights. Access by normal maintenance and repair equipment, as needed, which may well be wider than 26” should not be blocked.
[101] The appellants say that the applications judge erred in finding that the fence reduces the respondents’ access to the easement from a four-foot width to a width of approximately twenty-six inches because “the Respondents have never had more than approximately 2 feet of legitimate access” to the easement.
[102] I cannot accept this argument. The respondents clearly have a right of access over the two-foot portion of the four-foot strip that they own. In addition, they have a right of way (for the purposes specified in the easement) over the two-foot portion of the four-foot strip that the appellants own. Thus, prior to the construction of the fence, the respondents had legitimate access to the whole four-foot strip of land between the parties’ houses. The applications judge correctly concluded that the fence reduced the respondents’ access from a width of four-feet to a width of approximately twenty-six inches.
[103] Next, the appellants argue that the applications judge erred in finding that forcing the appellants to use repair and maintenance equipment with a maximum width of twenty-six inches is a substantial interference with the legitimate use of the easement. They make the following points in support of this argument: (1) there was no evidence that there are no wheelbarrows available that are less than twenty-six inches in width or that normal maintenance and repair equipment is wider than twenty-six inches; (2) the respondents should be able to gain access to the easement from the other side of their house; and, (3) the applications judge failed to give appropriate weight to the animosity between the parties and the resultant heightening of the appellants’ privacy interest in the fence.
[104] The standard of review that this court is to apply to the applications judge’s factual findings and inferences drawn from the facts is that of palpable and overriding error. Questions of mixed fact and law involving the application of a legal standard to a set of facts will generally also be subject to a standard of palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[105] It cannot be said that the applications judge made a palpable and overriding error in concluding as she did. There was evidence upon which the applications judge could reach her conclusions. She properly considered the language and purpose of the easement and the circumstances of its use. The respondents’ affidavit evidence established that they have used the easement from the time that they purchased their home in 1987, and that they use it for the purposes set out in the easement and for such things as taking their lawnmower to the backyard. The easement provides the only outside access to their backyard. It is the means by which they maintain and repair their home and the easement itself. They deposed that they need to repair their home, including repairing their chimney and bricks along the easement which they say have been damaged by the appellants. Pictures of the damaged bricks were attached to their affidavit. They can no longer push their lawnmower to mow the front yard without tipping it over and spilling gasoline in order to get around the fence. As found by the trial judge, they can no longer take a twenty-eight-inch wheelbarrow onto the easement. Their evidence demonstrates that they can no longer enter the easement for the purpose of maintaining and keeping in repair their home or the easement as they cannot bring in the equipment necessary to maintain the building.
[106] The evidence also establishes that when the respondents became aware that the appellants intended to build a fence, they told the appellants of their concerns and their need to be able to take appropriate equipment over the easement. Their requests that the fence be built in a fashion that would not interfere with their use of the easement have been in vain.
[107] The appellants submitted no contrary evidence nor did they conduct cross-examinations upon the affidavit.
[108] The fact that an empty wheelbarrow can be tilted sideways in order to gain access is no answer where the purpose of the easement is to permit “repair and maintenance” of the respondents’ home; a wheelbarrow will have materials in it if it is being taken onto the easement in order to effect repairs to the house. Repair and maintenance equipment can be more than twenty-six inches in width. Even if the applications judge was not entitled to take judicial notice of that fact, the respondents’ evidence is sufficient to justify her finding.
[109] The fact that there is no gate on the west side of the respondents’ property is irrelevant. The easement is on the east side of the respondents’ home. It is the easement (coupled with ownership of their own two-foot portion of the strip) that is to provide the respondents with the necessary access to effect repairs to their home. I note, again, that the deck on the west side of the respondents’ home was in existence at the time they purchased the house so the respondents have never been able to gain access to their backyard or to the easement from the west side of their property.
[110] Finally, in view of the record, the applications judge must have been aware of the animosity between the parties. The alternate form of relief ordered shows that the applications judge was cognizant of the appellants’ privacy concerns as her order enables the appellants to retain the fence while providing the respondents with reasonable access to the easement.
Issue #3 – Did the applications judge err in the relief granted?
[111] The applications judge ordered the appellants to remove the portion of the fence that blocks access to the easement or, alternatively, to modify the fence so that access can be had when necessary.
[112] The appellants submit that the order could not have been made, as the respondents had not specifically sought it.
[113] In the Notice of Application, the respondents sought a declaration that the appellants could not construct a fence that would have the effect of interfering with access to the mutual registered easement and an injunction restraining the appellants from obstructing access to the easement. In addition, they specifically asked for an order requiring removal of the portion of the fence that blocked access to the easement. Although modifying the fence to allow access was not specifically requested, in my view it is responsive to the appellants’ privacy concerns and is encompassed by the broader form of relief sought by the respondents.
[114] The appellants also argue that the relief granted amounts to a prescriptive easement over their land because it gives the respondents the right to use a part of their land beyond that governed by the express terms of the easement. Enabling the respondents to have an unobstructed right of access to the easement is not tantamount to giving them a prescriptive easement over a portion of the appellants’ land; the respondents’ entitlement is limited to those ancillary rights that are reasonably necessary to enable them to use the easement for the purposes for which it was granted. See, for example, Matthews v. Mackenzie in which this court varied the relief given at first instance to permit the appellants to erect an unlocked gate at the point where the proposed fence would meet the right of way.
CONCLUSION
[115] Accordingly, I would dismiss the appeal with costs to the respondents fixed in the amount of $3,800, inclusive of GST and disbursements.
Signed: “E.E. Gillese J.A.”
Released:”JS” DECEMBER 19, 2003
[^1]: SUBJECT to a right in the nature of an easement in favour of the owners and occupants from time to time of PART 4 and PART 44 on Plan 43R-6275 their servants, agents and workmen, to enter in, over, upon and through PART 43 on Plan 43R-6275 at all reasonable times for the purpose of maintaining and keeping in repair the building erected on PART 4 on Plan 43R-6275.
Together with a right in the nature of an easement in favour of the owners and occupants from time to time of PART 3 and PART 43 on Plan 43R-6275 their servants, agents and workmen, to enter in, over, upon and through PART 44 on Plan 43R-6275 at all reasonable times for the purpose of maintaining and keeping in repair the building erected on PART 3 on Plan 43R-6275.
[^2]: This case was cited with approval by Strong J. in a similar factual context in Wheeler v. Black (1887), 14 S.C.R. 242.
[^3]: In fact, the only case that does so is the Wisconsin case of Hunter v. McDonald, 254 N.W. 2d 282 (Wis. 1977) and cases that have followed it.