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A prescriptive easement by lost modern grant cannot be established where historical use was permissive and not reasonably necessary.
Neighbouring homeowners disputed rights over a 14-foot strip of land between their properties containing two abutting driveways.
The respondents claimed a prescriptive easement based on historical use by predecessors in title.
The application judge found the easement had been acquired through the doctrine of lost modern grant and ordered the appellants to remove a fence erected on their property.
The appellants appealed, arguing the requirements for a prescriptive easement had not been met.
The Court of Appeal allowed the appeal, finding the evidence did not establish use "as of right" and that the easement was not reasonably necessary to the enjoyment of the dominant property.
Prescriptive easement over shared driveway established; neighbours ordered to remove fence blocking access.
The applicants and respondents are neighbours who share a driveway.
The respondents built a fence down the middle of the driveway on their property line, preventing the applicants from accessing their rear parking spaces.
The applicants brought an application claiming a prescriptive easement over the respondents' portion of the driveway based on the doctrine of lost modern grant.
The court found that the applicants established 20 years of continuous, uninterrupted, open, and peaceful use of the driveway prior to the properties being registered in the land titles system.
The application was granted, and the respondents were ordered to remove the fence.
