COURT FILE NO.: 11940/09
DATE: 2012-05-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dawn Marie (Wintle) Donohue and
Tammy Melissa Wintle
John DiFiore, for the Applicants
Applicants
- and -
Veronica Elizabeth Robins and
Peter Gordon Binka
Wayne Cusack, for the Respondents
Respondents
Application HEARD at Welland, Ontario:
December 16, 2011, January 3, 2012, and February 3, 2012
(Motion to strike heard September 2, 2011 and decision released November 23, 2011)
The Honourable Justice T. Maddalena
JUDGMENT
THE FACTS
[1] The applicants Dawn Marie (Wintle) Donohue and Tammy Melissa Wintle are the joint owners of two properties municipally known as 14L42B and 14L42D Morgan’s Point Road, Wainfleet, Ontario.
[2] 14L42D Morgan’s Point Road was acquired by the applicants in 1999 from their grandmother and consists of a lot which is approximately 48.5 feet frontage by 155 feet deep, upon which is situate a house, three sheds and two vinyl garages. The property was conveyed by the applicants’ grandmother to the applicants as tenants in common. This property fronts onto a right of way and the right of way is the sole means of access to this property from Morgan’s Point Road.
[3] 14L42B Morgan’s Point Road was acquired by the applicants in 2002 from their grandparents, and consists of a lot which is approximately 97 feet frontage by 154 depth upon which is situate a house, a concrete block shed and a vinyl shed. The property was conveyed by their grandparents as tenants in common with a life interest to the said grandparents. The applicants’ grandfather is now deceased. This property also fronts onto a right of way. This right of way is the sole means of access to this property from Morgan’s Point Road.
[4] The applicants’ properties are currently occupied by their father Mark Wintle as a tenant.
[5] The respondents Veronica Elizabeth Robins and Peter Gordon Binka acquired title to their property municipally known as 14L40 Morgan’s Point Road by deed registered to them September 18, 2001. The right of way referred to herein is owned by the respondents as joint tenants.
[6] The deeds to both the applicants’ properties that is 14L42B and 14L42D set out the entitlement to the right of way and describes the entitlement as “together with the right of way”.
[7] The deed to the respondents’ property, dated July 4, 2008, over which the right of way is situate, has a reference to “subject to” the right of way.
[8] After the respondents acquired the property, it was discovered that the lands comprising the right of way had inadvertently been left out of the conveyance. Title to the right of way had remained in the name of a predecessor in title. Eventually the right of way was conveyed to the respondents by transfer registered July 4, 2008.
[9] There is no dispute between the parties as to the existence of the right of way, its geographic location or its boundaries.
[10] Various deeds registered on title describe the right of way by a metes and bounds description. The dimensions of the right of way are not in dispute.
[11] However, none of the title documents establish criteria or give parameters pertaining to the right of way and its use, or obligations with respect to upkeep and maintenance.
[12] The right of way is L-shaped. Its long arm is 33 feet wide and runs westerly for 338 feet from Morgan’s Point Road along the northern boundary of the respondents’ lot. The short arm is 66 feet wide and extends 244 feet southward from the northern boundary along the westerly boundary of the applicants’ lot. It fronts on the lots owned by the applicants. There are three cottage lots extending westerly from the right of way, which is the sole means of access for them. This right of way is accurately shown in a survey prepared by Douglas G. Marr, Ontario Land Surveyor, and dated the 1st of April 2009.
STATEMENT OF THE ISSUES TO BE DETERMINED
[13] The issues to be determined are:
Do seven decorative rocks placed on the right of way, as shown on the survey referred to above, restrict the applicants’ ability to exit from Lot 14L42D (hereinafter referred to as “Lot D”)?
Do the four fern trees planted by the respondents with steel T-bar posts on the right of way, and bordering the right of way along the frontage of Lot 14L42B (hereinafter referred to as “Lot B”) block access to and from a driveway formerly used by the applicants and their invitees to enter and exit that part of the property?
Who is responsible for the maintenance and repair as well as snow removal for the right of way?
THE ROCKS ON THE RIGHT OF WAY
Applicants’ Position
[14] The respondents, in summer of 2008, placed seven rocks on the grassy part of the right of way where the laneway curves from east-west to north-south. These rocks are more particularly shown on the survey of Douglas G. Marr, OLS, dated April 1, 2009.
[15] The rocks are placed within the less travelled portion of the right of way, therefore falling just east of the more travelled portion of the right of way.
[16] The applicants submit that the seven large rocks on the right of way restrict their ability to exit from the garages on Lot D on their property, as well as impede large water trucks and other emergency vehicles on the right of way.
[17] The applicant, Mark Wintle, states in his affidavit, that he would be required to drive over the portion of the right of way upon which the rocks are placed in order to exit from his driveway from Lot D.
[18] He states in his affidavit sworn the 12th of August 2010 at paragraph 2(c) as follows:-
“… The placement of the boulders on the right-of-way impedes one’s ability to reverse out of the driveway at 14L42D without making a difficult four point turn. The placement of the boulders in said location was totally unnecessary and done for the sole purpose of restricting my former use of the right-of-way, and impeding my ability to reverse out of the driveway at 14L42D.”
[19] Further, the applicant Mark Wintle deposes that emergency vehicles have been affected by the placement of the rocks on the right of way. Mark Wintle has stated in his evidence that fire trucks have been on the right of way at least three to four times and has referred to fire trucks having to do an eight point turn in order to exit the right of way.
[20] Mr. Wintle deposes at paragraph 3 of his affidavit sworn the 12th of August 2010 as follows:-
“… [T]here have been a number of occasions when fire trucks have had to attend to respond to various calls. I have on more than one occasion been out to direct those vehicles around the boulders placed on the right-of-way by the Respondents. They constitute an unnecessary obstacle to emergency vehicles.”
[21] Further, Mark Wintle has stated in his evidence that he has had to assist Hydro One getting around the rocks the night Binka’s property burned down. He stated that the water trucks “had a guy standing on top of the rocks to direct them away from it …”.
[22] Mark Wintle submits that his family and friends all have difficulties backing out of Lot D. Tammy Wintle referred to the necessity of making a three to four point turn in order to exit Lot D.
[23] Further, Gerald Upfold, a neighbour whose property is situate to the north of the right of way, has stated in his affidavit sworn the 11th of August 2010 in paragraphs 6 and 7 therein as follows:-
“The positioning of the rocks is such that they prevent anyone from backing a vehicle out of the Wintle’s property at ‘Lot D’ without making at least a four point turn. While the rocks do not impede entry onto the Wintle’s driveway on ‘Lot D’, reversing from the Wintle driveway is seriously impeded by reason of the placement of the rocks.
Prior to the rocks being placed there, I myself have parked vehicles in the Wintle’s driveway on ‘Lot D’ and I have used the portion of the right-of-way where the rocks are now located, to reverse onto in order to exit their property. This can no longer be done in the same manner and again, it can now only be done with great difficulty.”
[24] The applicants depose that the reason for the rocks is simply to obstruct backing out of the driveway safely and comfortably from Lot D.
[25] The applicants are also concerned that with substantial snowfall the rocks would be hard to see, particularly at nighttime. They depose that with a lot of snow, and particularly at night, someone unfamiliar with the rocks would easily have an accident and hit the rocks.
The Position of the Respondents
[26] The respondents, Peter Binka and Veronica Binka, depose that the rocks were placed on the right of the way for decorative purposes and also to direct vehicular traffic around the right of way.
[27] The rocks are approximately six to ten inches high and are otherwise flat. There are seven rocks in total that are at issue.
[28] Veronica Binka states in her affidavit that the decorative rocks pose no difficulty for large trucks or emergency vehicles. Gravel trucks and fire trucks are able to access in and out without difficulty. She deposes that the rocks beautify the area, channel vehicular traffic, and have no impact on Lot D.
[29] Andrew Price, whose father owned the respondents’ property prior to the respondents, also deposes that fire trucks entered the laneway without difficulty and travelled to the back of the property were Lots B, C and D are located, turned around and exited the premises via the same laneway again.
[30] The respondent, Mr. Binka, stated that persons would drive on that portion of the right of way where the rocks are now located but the placement of the rocks on the right of way does not impede access to the applicants’ property.
[31] The respondents claim that the rocks are simply a minor inconvenience to the applicants. The applicants state that it is a deliberate and major obstruction of their enjoyment of the right of way.
THE TREES IN FRONT OF LOT B
The Position of the Applicants
[32] The applicants depose that the planting of fern trees with T-bar posts by the respondents along the front of the applicants’ Lot B prevents access to Lot B where access had previously occurred in the past.
[33] The applicants have claimed two driveway entrances to Lot B historically.
[34] North of the four lilac bushes on Lot B, the applicants claim is the northerly driveway to the cottage which still exists and is not impeded. However, the applicants claim that the southerly portion, i.e. south of the lilac bushes where the respondents have planted four fern trees with T-bar posts, prevents access to their second driveway to Lot B.
[35] Therefore, the applicants depose that the southerly portion of the driveway on Lot B is now entirely blocked by the action of the respondents.
[36] Further, this southerly portion is where the applicants kept their wood pile which can now no longer be accessed.
[37] Mark Wintle deposes that historically the Wintles used the entire front of Lot B to get in and out. Now, the second driveway which allowed access to the southerly portion of Lot B is entirely blocked as the result of the actions of the respondents, according to the applicants.
[38] Gerald Upfold deposes that prior to the planting of the trees that are at issue, one could access Lot B by two driveways. One driveway allowed access to the northerly portion of Lot B where the cottage is located. This driveway is still accessible. The second driveway which allowed access to the southerly portion of Lot B is entirely blocked. In his affidavit sworn the 11th of August 2010 Gerald Upfold deposes as follows in paragraphs 9 and 10 therein:-
“I am familiar with the row of cedar trees planted by Peter Binka directly in front of the Wintle cottage located at ‘Lot B’. Prior to the planting of the said cedars, one was able to access ‘Lot B’ by way of two different driveways on ‘Lot B’. One driveway allowed access to the northerly portion of ‘Lot B’ (where the cottage is located). This driveway is still accessible.
However, the second driveway which allowed access to the southerly portion of ‘Lot B’ has now been entirely blocked by the planting of the cedar trees and steel poles. This southerly portion of ‘Lot B’ is where the Wintles (including Stanley Wintle) have kept a wood pile since approximately the year 2000. One cannot access the southerly portion of ‘Lot B’ to gain access to the wood pile by utilizing the remaining driveway, in as much as maneuverability is hindered by both the cottage, a large walnut tree and a large maple tree on the property.”
The Position of the Respondents
[39] The respondents state that there is no visible trace of a driveway where they planted the trees.
[40] The respondents have noted that the survey does not show a second driveway onto Lot B where the four trees with the steel posts were planted. They have noted that the survey prepared and referred to herein shows with respect to Lot D dotted lines extending to the driveway. The respondents note that there are no such dotted lines with respect to Lot B.
[41] The position of the respondents with respect to Lot B is that the driveway entrance is to the right of the four lilac bushes. To the left are the trees planted by them. They dispute that a second driveway existed where the trees have been planted.
[42] Veronica Binka in her evidence deposed that she could see the wear on the driveway to the north and assumed that that is where vehicles came in and decided to put the trees on the other side.
[43] She does not agree that there were two means of entering the property. She deposes in her evidence that one side only was worn so she put the trees on the other end.
[44] Tammy Wintle acknowledged that the survey prepared by them does not have a driveway marked where the respondents planted trees on Lot B.
[45] Secondly, the respondents depose that the trees that were placed along Lot B have been spaced far enough apart so that one can either walk between them, ride a bike, pull a sled, or pass otherwise then with a vehicle. Accordingly, the respondents depose that the applicants’ wood pile on Lot B may still be accessed by an all-terrain vehicle, lawn mower, etc., or other smaller vehicle.
[46] Further, Veronica Binka deposes that before planting trees on Lot B she asked Mark Wintle which end he preferred for his driveway access and his response was that he didn’t care. As a result, she deposes, she planted the trees along Lot B where there was no vehicle traffic.
[47] Mark Wintle deposes that he did not tell Veronica Binka that he did not care or that it was okay to plant the trees fronting Lot B. Mark Wintle deposes that Veronica Binka did not ask his permission but simply told him that she was going ahead and planting trees.
[48] The respondents further admitted in their evidence that part of the reason for putting up the trees was to cover the “unsightly view” of the yard in Lot B.
MAINTENANCE AND SNOW REMOVAL ON THE RIGHT OF WAY
[49] The applicants have complained that the respondents have piled snow onto the right of way to prevent access to the applicants’ property.
[50] More specifically, Tammy Wintle has stated that the respondents have failed to properly clear snow on the right of way and have failed to properly grade and stone the right of way and failed to maintain mature trees on the laneway.
[51] Mark Wintle has specifically deposed that the respondents, with respect to snow clearing, have started snow clearing at their end and pushed the snow to the Wintle’s property so large mounds of snow would be in front of the Wintles’ property and none in front of the respondents’ property.
[52] Mark Wintle further complained that snow would be pushed against his truck and on at least one occasion the police were called. Mark Wintle’s complaint is that the snow is not distributed evenly and this is done to impede his access to the right of way.
[53] Mark Wintle has deposed that in the past he together with Gerald Upfold and Mark’s father have maintained the right of way.
[54] The respondents, however, after acquiring the right of way, have advised the applicants that they, i.e. the respondents, will maintain the right of way at their cost.
[55] In this instance, the respondents are the legal owners of the right of way. The applicants would have the right to maintain the right of way only if the right of way is not being maintained by the respondents. Here, the evidence suggests there is evidence that the respondents are maintaining the right of way and this will continue to fall to them to maintain the right of way at their own cost. Should the respondents fail to maintain the right of way, then the maintenance may be done by the applicants under such conditions.
LAW AND ANALYSIS
[56] The right of way is created by an express grant in the transfers.
[57] The law regarding the proper use of a right of way has been well established in the case of Gormley v. Hoyt, [1982] N.B.J. No. 365. At paragraph 14 the court stated as follows:-
“… The owner of a right-of-way, in the absence of agreement with the owner [of the land] over which it passes, has the burden of maintaining the right-of-way including the right to enter upon it for the purpose of making it effective: see Dalhousie Land Company Limited v. [*page81] Bearce (1933), 1933 CanLII 565 (NB CA), 6 M.P.R. 399. The right of the owner of the right-of-way easement includes not only the right to keep the road in repair but also the right to make a road. It would follow therefore that the owner of the freehold over which the right-of-way passes has no right to remove rock, gravel and other material even though he himself owns the material if the removal has the effect of making the roadway less convenient for those enjoying the right-of-way. Likewise, he has no right to obstruct reasonable access to persons having such right-of-way.”
[58] Further in the case of Foster v. McCoy, [1998] N.B.J. No. 281, the court held in paragraph 28 (quoting Keefe v. Amor, [1965] 1 Q.B. 334, Lord Justice Russell):-
“Where a right of way exists in respect of a strip of land it is not necessarily open to the grantee to complain of obstacles on every part of the strip; he can only complain of such obstacles as impede the user of the strip for such exercise of the right granted as from time to time is reasonably required by the dominant tenant. … The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required.”
[59] It is clear that the applicants (dominant tenants) could previously drive where the decorative rocks are now situate. The current seven decorative rocks do prevent the reasonable use of the right of way as it relates to Lot D.
[60] Exiting from the driveway of Lot D is now problematic.
[61] Further problems could easily arise in instances of prolonged and heavy snowfall where it is possible that the rocks would not be visible to vehicles.
[62] I am persuaded that the placement of the decorative rocks on the right of way has interfered with the reasonable access and reasonable enjoyment of the right of way by the applicants, and further could pose a problem to other vehicles. Thus, the seven decorative rocks shall be removed from the right of way.
[63] The fern trees with the steel posts do not present a similar reasonable impediment to Lot B.
[64] I am not persuaded that Lot B had two clearly marked driveways as claimed by the applicants. This is not shown on their survey.
[65] The trees on Lot B that are in issue do not interfere with the applicants’ reasonable enjoyment and use of the right of way. The applicants clearly have a driveway for Lot B. There is no reasonable impediment to access Lot B. Accordingly, the trees in front of Lot B may remain.
[66] The usage, the maintenance and the upkeep of the right of way is not in the title documents. However, the respondents are the legal owners and there is substantial evidence to suggest that the respondents wish to maintain the right of way and are doing so. Accordingly, the respondents are to continue to maintain the right of way. It is settled law that in the event that the respondents fail to maintain the right of way for the benefit of the applicants, then the applicants are able to do so.
SUMMARY OF ORDERS MADE
[67] Summary of orders made:-
The seven decorative rocks shall be removed from the right of way within 30 days.
The four fern trees with steel posts relating to Lot B shall remain.
There is a declaration that the respondents, as owners, are entitled to maintain the right of way and plough the snow at their sole cost in such a manner as not to impede the applicants’ reasonable access to the right of way. If they fail to do so, the applicants may then maintain it and/or plough the snow but at the cost of the respondents.
Given the mixed success of the parties, there shall be no order as to costs.
Maddalena, J.
Released: May 14, 2012
COURT FILE NO.: 11940/09
DATE: 2012-05-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Dawn Marie (Wintle) Donohue and
Tammy Melissa Wintle
Applicants
- and –
Veronica Elizabeth Robins and
Peter Gordon Binka
Respondents
JUDGMENT
Maddalena, J.