COURT OF APPEAL FOR ONTARIO

CITATION: Lindhorst v. Sears, 2013 ONCA 294

DATE: 20130503

DOCKET: C51537

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Alvin Lindhorst

Applicant (Appellant)

and

David Sears

Respondent (Respondent)

Alvin Lindhorst, acting in person

John D. Bonn, for the respondent

Heard: April 25, 2013

On appeal from the order of Justice Cheryl Robertson of the Superior Court of Justice, dated December 3, 2009.

ENDORSEMENT

[1] The appellant, Alvin Lindhorst, appeals the December 3, 2009 order of the trial judge, dismissing his claim for, inter alia, a declaration that he has a right of way or easement permitting him to use the well located on the respondent’s neighbouring property, and allowing the respondent’s counter-claim for a declaration that the well-sharing agreement registered on title to the respondent’s property expired on March 20, 2010.

[2] In 1990, the respondent entered into an agreement to acquire his property. The agreement specifically noted that the well was shared with the then owners of the appellant’s property and that they had equal rights to the well. Prior to closing, the respondent entered into the well-sharing agreement with the then owners of the appellant’s property. The well-sharing agreement provided for shared use of the well until March 20, 2010. It was deposited on title to the respondent’s property, on March 9, 1990, when the respondent completed the purchase of his property.

[3] The appellant purchased his property at a tax sale some 16 years later. He understood that it used the well in question. The well-sharing agreement was not registered on title to his property. He did not search title to the respondent’s property.

[4] The appellant argues that the trial judge erred in finding that:

(1) the respondent had not repudiated the well-sharing agreement;

(2) the appellant’s right to use the well was governed by the well-sharing agreement despite the fact that it was not registered on title to the appellant’s property and the agreement of purchase and sale entered into by the respondent before the well-sharing agreement was executed specifically noted that the well was shared with the prior owners of the appellant’s property; and

(3) Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499, a decision of this court, did not apply in the circumstances, and the appellant was not entitled to a prescriptive right or equitable easement entitling him to use the well.

[5] We are not satisfied that the application judge made a palpable and over-riding error in concluding that the respondent had not repudiated the well-sharing agreement. The trial judge noted that the appellant had been convicted of an offence under s. 2 (1) (a)(i) of the Trespass to Property Act, R.S.O. 1990, c. T.21 and that he was appealing his conviction. She accepted the evidence of the respondent “that he never denied the appellant access to the well, just to him ‘wandering around [his] property’”. She was entitled to accept the respondent’s evidence over that of the appellant.

[6] The well is located on the respondent’s property. The fact that the well-sharing agreement – a restriction on title to the respondent’s property – was not also registered on title to the appellant’s property does not render it ineffective as against the appellant.

[7] We agree with the trial judge that the shared rights to the well acknowledged in the agreement of purchase and sale signed by the respondent were qualified by the subsequently executed well-sharing agreement, which gave express time limited permission for the owner of the appellant’s property to use the well.

[8] Finally, we agree with the trial judge that because the appellant’s right to access the well was governed by the well-sharing agreement, Depew is not applicable, and the appellant has no prescriptive right or easement in relation to the well.

[9] This appeal is accordingly dismissed. The respondent is entitled to his costs of this appeal on a partial indemnity scale, fixed at $ 5000, inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“Alexandra Hoy J.A.”