COURT FILE NO.: 248/11 (Guelph)

DATE: 20120103

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DAVID ALBERT WALKER and KATHRYN MOONEY Applicants v. DAVID D’AURIA and MICHELLE D’AURIA Respondents

BEFORE: O’Connor J.

COUNSEL: Trenton D. Johnson, for the Applicants Robert K. Brown, for the Respondents

E N D O R S E M E N T

[1] The parties are neighbours who apparently wish they were not. A 33 foot wide, gravelled right-of-way over a portion of the Respondent’s land (the D’Auria Property) abuts the Applicant’s land (the Walker Property). It runs for a distance of just under 300 ft. from a county road to railway lands that cross the D’Auria Property and abut the rear of the Walker Property. The railway tracks have been removed. These lands are now a recreational ‘rail trail’.

[2] The right-of-way first appeared on the titles of the two properties in 1911 in a deed that created the D’Auria lands as the subservient tenant and the Walker property as the dominant tenant. However, the public have used it for 100 years.

[3] The Applicants used a portion of it, about three-quarters of the full length, for about 11 years to access the rear of their lands to park their boat, trailer and other heavy equipment. Although the Respondents deny it, there is evidence that previous owners of the Walker property similarly used the turnoff short of the railway lands. Further, there is some evidence that one previous owner used the right-of-way as his primary driveway.

[4] Mr. Walker and Ms Mooney say access to the rear of their lands from either the county road or the rail trail is impossible because of the location of a pond, a marsh/wetland, mature trees and their septic bed system. The right-of-way is the only practical way to get there.

[5] Tempers flared between the parties in 2010.

[6] The D’Aurias placed boulders and a fence across the point where Mr. Walker and Ms Mooney had been accessing their property. They also erected a sign beside the road that reads, “Private laneway. No rail trail access.” The Applicants responded by pulling up some survey pins that marked the freshly surveyed boundary line between the properties. Notwithstanding their sign, the D’Aurias acknowledge the Applicants’ right to access the rail trail, but only the rail trail, over the right-of-way, and not their own property at any point short of the rail trail.

[7] The Applicants bring this Application seeking:

(a) a declaration that the right-of-way permits them vehicular access and egress to and from their property at the location they have used since they owned the property,

(b) if necessary, a declaration that they have acquired a prescriptive easement to access their property at the location they have been using and,

(c) if necessary, an injunction restraining the Respondents from interfering with their use of the right-of-way.

The Positions of the Parties

[8] The Applicants argue the clear wording of the original and subsequent deeds of both properties give them, as dominant tenants, the right to use all or any part of the right-of-way to enter and leave their land. No deed requires them to use only the full length of it, nor should it be interpreted as an access route only to the railway lands. Further, the grant of a positive easement includes the grant of all ancillary rights reasonably necessary to fully exercise and enjoy it. An ancillary right must be necessary, not merely convenient. They say their situation fits the ‘necessary’ criteria.

[9] The Respondents argue the right-of-way was created for the purpose of providing access and egress to and from the railway lands only. It cannot be used by the neighbours as their driveway. The description of the right-of-way and its purpose has evolved in several deeds over the years, but no deed grants the right to use only part of it. It is all or nothing, they argue. Further, the Applicants’ intended use falls short of being necessary. They can access their land from the other side of their lot by cutting some trees. They do not meet the ancillary test.

The Issues

[10] The issues include:

(d) the need for a determination of the purpose, extent and scope of the 1911 right-of-way as it has evolved in several deeds over the years;

(e) does it permit users access and egress to and from the Walker property at locations along its length or only at the railway lands?

(f) or is the right to turn off short of the end an ancillary use of the right-of-way, as that term has been defined by the Courts?

(g) is the reference to the railway lands merely a descriptor of the boundary of the right-of-way or does it define the purpose of it?

(h) have the owners of the dominant tenancy, i.e. the Applicants, obtained a prescriptive right to the use for access to and from their property?

The Several Descriptions of the Right-of-Way

[11] The 1911 deed to a predecessor in title of the Applicants described the right-of-way as follows:

…together with a right of way for trams and vehicles two rods wide from said road allowance to said Credit Valley Railway lands along the South Easterly Side of the above described lands and adjoining thereto.

The 1981 deed, to a predecessor in title of the Respondents, reads:

Subject to a right-of-way for trams and vehicles 33 feet in width from the said road allowance to the said Canadian Pacific Railway lands along the north-westerly side of the said lands.

The 1999 deed to the Applicants reads:

Together with a Right-of-way for vehicles over a strip of land having a perpendicular width of 33 feet and lying adjacent to the south-easterly limit of the aforesaid parcel of land and which said right-of-way is more particularly described as follows…

(The four boundaries are then described in metes and bounds.)

The Law

[12] The rights and obligations of the parties to a right-of-way expressly granted, first in 1911, then repeated in subsequent transfers of the lands of both the dominant and subservient tenants, depends on the express wording initially employed, as modified over time. All deeds refer to the purpose, location and the dimensions of the right-of-way. Although the wording has changed over the years, the changes are not substantive. They do not alter in any material respect the purpose, location and dimensions of the right-of-way. The changes are essentially a modernization of previous descriptions – 2 rods becomes 33 feet, trams and vehicles becomes simply vehicles, and the names of the railway companies reflect the then current owner.

[13] It is clear that the reference to the railway lands is made to define one of the boundaries of the right-of-way. It cannot be interpreted to be defining the purpose of the right-of-way, as the Respondents argue, that is, to provide access to the railway lands. If this were the case the various railway land owners would have to have granted access to their lands. Their neighbours would not have had authority unilaterally to create a subservient tenancy of their neighbour, a railway company, without the company specifically granting such a right-of-way. There is no evidence that any of the railway owners ever granted such a right-of-way. There is no evidence of a railway station or platform, nor that trains ever stopped at or anywhere near the right-of-way. Thus, there would have been no reason to restrict the use of the right-of-way to access to only the railway lands.

[14] I find the reference to the railway lands in each grant is as a descriptor only of one of the boundaries of the right-of-way.

The Ancillary Rights Issue

[15] In Laferty v. Brindley, [2001] O.J. No. 5936, Donohue J., of this court, reviewed the law defining what constitutes an ancillary right and the circumstances under which it may be claimed by a dominant tenant. (Paragraphs 34 to 43 inclusive). His judgment was upheld by the Ontario court of Appeal at [2003] O.J. No. 4256 and 2003 20920 (ON CA), 179 O.A.C. 50.

[16] At paragraph 36, quoting from C.E.D. v.9, title 51, s. 90, Donohue J. says:

The grant of a positive easement prima facie includes also the grant of all such ancillary rights as are reasonably necessary for its exercise and enjoyment …

The question of what rights are reasonably necessary incorporates into it the usual factors that accompany any question of reasonableness, namely a consideration of all the circumstances which are in any way relevant. Kasch v. Goyan (1993), 32 R.P.R. (2d) 297 (B.C.C.A.)

[17] In this case, I have found that the Applicants and at least some of their predecessors in title have used the right-of-way to access their property at the point now barricaded by the Respondents. Further, it is the only logical location to access the rear of their property. It need be shown by the Applicants only that the use they have been and wish to continue making of the right-of-way is “…reasonably necessary for its enjoyment …” (para. 36 Laferty v. Brindley, supra)

[18] I find the Applicants have met this criteria. It is not necessary in order to prove an ancillary use to demonstrate that the use they seek is absolutely necessary or that it is the only access they have to their property. Further, the use they seek does not interfere with or even inconvenience the Respondents use of it as a right-of-way to their own lands.

The Prescriptive Easement Issue

[19] At the Application I indicated to the parties that they need not make lengthy submissions respecting this issue as it was clear that the Applicants could tender no evidence respecting approximately ten years of the required twenty of uninterrupted occupancy by them and predecessors in title necessary to succeed on such a claim.

Result

[20] A Declaration shall issue that the right-of-way registered on title to Part of the North-easterly Half of Lot 29, Concession 4, Town of Erin, as in 571766 (PIN 71138-0061 (LT) and as described in Instrument No. ROS241021, provides for vehicular ingress and egress to and from the rear of the Applicants’ property.

[21] The parties may make submissions as to costs to the Court in writing prior to January 27, 2012.

O’CONNOR J.

DATE: January 3, 2012

COURT FILE NO.: 248/11 (Guelph)

DATE: 20120103

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DAVID ALBERT WALKER and KATHRYN MOONEY Applicants v. DAVID D’AURIA and MICHELLE D’AURIA

BEFORE: O’Connor J.

COUNSEL: Trenton D. Johnson, for the Applicants Robert K. Brown, for the Respondents

ENDORSEMENT

O’CONNOR J.

DATE: January 3, 2012