DATE: 20050110

DOCKET: C39766

COURT OF APPEAL FOR ONTARIO

ROSENBERG, MOLDAVER AND SIMMONS JJ.A.

B E T W E E N :

LAWRENCE DESIREE EBARE and JULIE LIPSIT

Frederick J. Skeggs for the appellant

(Appellants (Plaintiffs))

• and -

GARY A. WINTER

Augusto P. Palombi for the respondent

(Respondent (Defendant))

Heard: November 30, 2004

On appeal from the judgment of Justice I.S. McMillan of the Superior Court of Justice dated March 6, 2003.

SIMMONS J.A.:

[1] In 1999, Lawrence Ebare purchased 1700 acres of land in Algoma, which he planned to use for logging. The respondent owns 40 acres of land that border the southern limit of Ebare’s property. Following Ebare’s purchase, the respondent refused to permit Ebare to use two roads on the respondent's property (the “north-south road” and the “east-west road/trail”), which Ebare claims have provided longstanding access to the 1700 acres. Accordingly, Ebare applied for a declaration under the Road Access Act, R.S.O. 1990, c. R. 34, (the “Act”) that the north-south road and the east-west road/trail are “access roads” within the meaning of the Act. In the alternative, Ebare requested a declaration that he is entitled to a prescriptive easement over the two roads.

[2] After accepting the evidence of two witnesses who described other roads over private land leading to the appellants' property, the trial judge dismissed the appellants' claim under the Act because the appellants had not proven that they do not have alternate access to their property.

[3] As for the appellants’ claim for a prescriptive easement, the trial judge found that the respondent’s predecessor in title occupied the 40-acre parcel between 1973 and 1999 with the intention of excluding all others. The appellants were not therefore entitled to a prescriptive easement pursuant to s. 31 of the Limitations Act, R.S.O. 1990, c. L. 15. In addition, the trial judge concluded that the appellants had not proven the elements necessary to establish a prescriptive easement based on the doctrine of lost modern grant.

[4] The appellants raise two issues on appeal. First, they submit that the trial judge applied the wrong test when considering their request for a declaration under the Act. In particular, they say that potential access routes over private lands are not sufficient to negate their rights under the Act and that the trial judge erred by failing to consider whether there was alternate legal access to their land. Second, the appellants contend the trial judge erred by failing to apply the presumption of lost modern grant.

[5] For the reasons that follow, I would dismiss the appeal.

Background

[6] The appellant Ebare bought the 1700-acre property in December 1999 from the respondent's brother, Eric Winter. Eric acquired the property in April 1999 after his father, Norbert Winter, died. Norbert acquired the 1700-acre property through a series of purchases between 1966 and 1978. In addition, in 1973, Norbert acquired the 40-acre property now owned by the respondent. Although Norbert retained the beneficial title to the 40-acre parcel, it was registered in the respondent's name so that it would not merge with the 1700-acre property. The Winters were and continue to be non-resident landowners who visit their properties in the summer and fall.

[7] In 1974, Norbert built a cabin on the 40-acre property. The trial judge noted that access to the 40-acre property (and the cabin) was provided “west from King's Highway 17 [which was located east of the property] North along Anderson Road, a public road, and from the termination of Anderson Road to the east limit of the 40-acre parcel and on to those lands."

[8] Around the time he built the cabin, Norbert erected a gate across the road leading to the 40-acre parcel. He also upgraded the trail leading from the eastern boundary of the property to the cabin. To the west of the cabin and stretching northwest, there is a cleared path. The trial judge found the path consistent with aspects of the evidence respecting historical findings of a trail dating back to 1864. He also found that the trail had been fenced at the western limit of the respondent’s property since approximately 1975 or 1976. The trail leading to the cabin and the path running northwest to the western limit of the 40 acres together constitute the east-west road/trail.

[9] In 1976, Norbert Winter constructed a road (the north-south road) on the 40-acre property that commenced at a point on the east-west road/trail near the eastern limit of the property and ran north to the 1700-acre property. He placed a gate at the south end of the north-south road. In 1981, Norbert began logging the 1700-acre property and using the north-south road to haul away timber.

[10] In his reasons, the trial judge referred to another road (“the blue road”) as being “of considerable significance” in the proceeding. He described the blue road as running in a northwest direction off of Anderson Road from a point approximately 500 feet east of the north-south road (i.e. east of the 40-acre parcel) to the 1700-acre property. The trial judge noted that the blue road traverses the northeast corner of the 40-acre property at its northern end before reaching 1700-acre property.

[11] The blue road was significant in the proceeding because, for some time, it provided access to the 1700-acre property from Anderson Road. The trial judge found that Norbert erected a gate across the blue road at the point where the blue road crosses the eastern boundary of the 40-acre property. However, the trial judge also noted that improvements were made to the blue road in the late 1970s or early 1980s that inadvertently damaged it, making the southerly portion of the blue road impassable. Importantly, the trial judge rejected the appellants’ surveyor’s evidence equating the blue road with the north-south road based on their use for a similar purpose.

[12] Prior to purchasing the 1700-acre property, Ebare attempted to resolve the access problem directly. In an early draft of the agreement of purchase and sale, he inserted a condition that read in part: “the purchaser agrees to obtain an easement from the vendor’s brother to allow…access to and from the subject property using the existing roads which may be owned by the vendor’s brother…” That condition was not included in the final draft of the agreement of purchase and sale.

[13] In addition, Ebare spoke directly to the respondent. The respondent informed Ebare that the 40-acre parcel was private property and did not provide access to the 1700 acres.

[14] Ebare testified that his usual practice when he believed there was longstanding access to otherwise landlocked property was to remove gates or barriers preventing access with notice to the authorities. He said that he planned to do the same with the roads leading to the 1700-acre property, because “after talking to many people” he was not concerned about issues of access.

[15] There was contested evidence at trial concerning several issues. In large measure, the trial judge rejected the evidence tendered by the appellants and accepted the evidence tendered by the respondent.

[16] Dealing first with the appellants' surveyor' s evidence, the trial judge noted that the surveyor concluded that the north-south road and east-west road/trail were definitely access roads, with evidence of their existence dating back to the 1940s if not the turn-of-the-century. In assessing this evidence, the trial judge said the following:

It became apparent that Mr. Bolan made assumptions that were not later supported by evidence in the trial, and in certain respects, he was clearly in error. In other words, he could not offer direct evidence of the establishment of these roads. His evidence was predominantly of an incidental and anecdotal nature. When, for example, confronted with the fact that the blue road comprised the north/south road, at least prior to 1976, as opposed to the Winter north/south road as he had testified in examination-in-chief, his response was that it did not matter because the two roads serve the same purpose.

[17] As for the appellants' evidence concerning whether there were other roads providing access to the 1700-acre parcel, the trial judge said the following:

Mr. Bolan swore with absolute certainty that there were no other roads servicing the [1700] acre tract of land, other than this traversing the Defendant' s 40 acres, and that while there may have been skid trails, there were definitely no roads. His evidence in that regard is at variance with the evidence of Mr. Rutledge, who in 1996, 1997 and 1998 transported his logs to market in a westerly direction over and from the lands now owned by the [appellants]. Further, Mr. Rutledge testified that he personally hauled logs by truck from the subject lands upon a road to the north, through the Winters' gate and on what was a good road that led out to King’s Highway 17 North. In his evidence Mr. Bolan had testified that this was a trail from the north that may have been used for skidding logs at one time, but was never used as a logging road.

... Mr. John Farstad O.L.S. ... confirmed that the north/south Winter road was a relatively new road; that the east/west road was a very old road that extended far to the west and had little indication of traffic; and, ascertained that there were three roads that led up to, if not into, the [appellants'] lands from the northwest and west which were not the [respondent's] road.

On the issue of alternate access, Mr. Rutledge and Mr. Farstad, O.L.S., presented evidence of potential alternate routes. I accept the evidence of Mr. Rutledge in this regard and whose evidence was clear, consistent and credible. He had no personal interest in the outcome and he was personally involved [in] logging his lands in the early 1980s and again in the mid-1990s, with respect to his own northeast quarter Section 10, now owned by the [appellant]. His evidence raises realistic and reasonable alternatives for access routes that are physically attainable. I also accept the evidence of Mr. Farstad concerning his findings and which he was very careful not to overstate in his fair-minded approach.

[18] Concerning the extent of public use of the east-west road/trail, the trial judge found that Norbert occupied the 40-acre property “as private lands, and with credible evidence of an intention to exclude all others, since at least 1974 when the gate at the east limit was erected”. As for the period preceding 1974, the trial judge said the following:

The witnesses called on behalf of the [appellants] who were intended to provide the historical and intimate knowledge of the two roads that traverse the [respondent's] lands ... were incapable of establishing the criteria essential for a lost modern grant, at least not to my satisfaction. In certain critical respects, they were clearly mistaken.

Analysis

i) Did the trial judge err by failing to consider whether there was alternate legal access to the appellants' land?

[19] According to the appellants, although the trial judge found that the evidence disclosed other potential access routes to the 1700 acres, those routes were over private property, requiring the owner’s permission for legal access, and therefore could not meet the threshold for constituting alternate access routes. In particular, the appellants submit that the trial judge erred in failing to consider whether there was alternate “legal” access to the appellants’ lands. The appellants also point out that in some instances, the private roads identified by the respondent's witnesses did not provide access to the whole of the 1700-acre property.

[20] I reject the appellants' submissions. In order to succeed with their claim under the Act, at a minimum, the appellants were required to show that, apart from the two roads on the respondent’s land, there is no alternate access to their parcel of land. In that respect, I note that s. 2(1) of the Act provides, in part, as follows:

2(1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land... not owned by that person unless. [emphasis added]

See also 553173 Ontario Limited v. The Bank of Montreal (1995), 1995 7246 (ON SC), 26 O.R. (3d) 617, (Ont. Gen. Div.) aff'd (1988), 1998 3047 (ON CA), 38 O.R. (3d) 575 (Ont. C.A.).

[21] Assuming that alternate access means alternate legal access, the fact that available alternate access routes traverse private property does not preclude the alternate routes from constituting legal access routes. Legal access can be achieved over private property either through permission or by demonstrating that the alternate routes are access roads under the Act.

[22] As the appellants failed to demonstrate that legal access was not available over the alternate routes, they did not meet the burden of proving their claim. Further, on a plain reading of the s. 2(1) of the Act, the fact that a particular alternate access route may not afford access to the entirety of the appellants’ lands does not diminish its status of providing alternate access to the parcel of land owned by the appellants within the meaning of s. 2(1) of the Act.

ii) Did the trial judge err by failing to apply the presumption of lost modern grant?

[23] The appellants contend that the trial judge erred by failing to presume a lost grant of an easement over the north-south road and the east-west road/trail under the doctrine of lost modern grant.

[24] Once again, I reject the appellants’ submission.

[25] On the appeal hearing, the appellants acknowledged that there was evidence capable of supporting the trial judge’s finding that the predecessor owner of the respondent’s lands occupied those lands with an intention to exclude all others between 1974 and 1999. It follows that any use of the two roads on the respondent’s lands capable of raising a presumption of lost grant must have occurred prior to 1974. Since the north/south road on the respondent’s land was not built until 1976, it could not have been subject to the necessary use prior to 1974. In this respect, I agree with the trial judge's conclusion that the appellants' surveyor was “clearly in error” when he responded that it did not matter that it was the blue road that provided north/south access to the 1700 acres prior to 1976 as opposed to the north-south road “because the two roads serve the same purpose”.

[26] As for the east-west road/trail, the trial judge found that the appellants’ witnesses were incapable of providing the evidence necessary to meet the criteria essential for establishing lost modern grant. As I read his reasons, the specific criterion to which the trial judge was referring was “continuous, uninterrupted, open and peaceful” use of the roads over a period of at least twenty years. In effect, the trial judge concluded that the evidence provided by the appellants’ witnesses was not sufficient evidence to meet that criterion.

[27] As this court noted in Henderson v. Volk (1982), 1982 1744 (ON CA), 35 O.R. (2d) 379, the threshold for meeting the criteria for establishing a prescriptive easement is high:

It is right and proper for the courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant was established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor. It is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both the continuous use and acquiescence in such use by the owner of the servient tenement.

[28] I see no basis for interfering with the trial judge's conclusion that the appellants had not met that high standard. Moreover, in my view, the doctrine of lost modern grant does not raise a presumption of lost grant until an applicant demonstrates the necessary period of “continuous, uninterrupted, open and peaceful” possession.

[29] As this court noted in Rose v. Kreiser (2002), 2002 44894 (ON CA), 58 O.R. (3rd) 641, the doctrine of lost modern grant is a legal fiction created prior to the enactment of statutory limitation periods that was designed to counteract the harshness of the common law rules relating to prescription[^1]. Under the doctrine of lost modern grant, juries were instructed to presume a lost grant in circumstances of lengthy use even though use from time immemorial could not be established. However, the presumption did not arise until sufficient use during the necessary period was established: see John David Honsberger & H.D. Anger, Law of Real Property, 2d ed., vol. 2 (Aurora, Ontario: Canada Law Book, 1985) at 937,938.

[30] In my view, the record supports the trial judge's finding that the appellants failed to establish sufficient prior use of the north-south road and the east-west road/trail to raise a presumption of lost modern grant.

[31] Based on the foregoing reasons, the appeal is dismissed with costs to the respondent on a partial indemnity basis fixed at $12,000 inclusive of disbursements and applicable G.S.T.

Released: January 10, 2005 “MR”

“Janet Simmons J.A.”

“I agree Marc Rosenberg J.A.”

“I agree M. J. Moldaver J.A.”

[^1]: At para. 24 of Rose v. Kreiser this court said:

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. [citation omitted]