ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-00461048
DATE: 20131223

BETWEEN:

REID LESTER and CAROL JONES

Applicants

– and –

JAMES WILLIAM CHANWELL BOND and MARY-ELIZABETH BOND

Respondents

Matthew Morden, for the Applicants
Evert Van Woudenberg, for the Respondents

HEARD: May 22 and September 6, 2013

J. MACDONALD J.

REASONS

iSSUE

[1] The applicants claim that their right of way over the respondents’ land has been substantially diminished by the respondents’ encroachment on it. The applicants seek an order for removal of the encroachment, allied declaratory relief and other consequential orders.

the facts

[2] In 1916, a 14 foot wide easement was created by grant for the purpose of establishing a right of way, being a laneway for “ingress, egress and regress” to and from the rear of a number of residential properties in what is now mid-town Toronto.

[3] At the present time, the applicants are two of a number of dominant tenement holders, all of whom own the residential properties on the east side of Hilton Avenue to the south of Melgund Road which are served by the aforesaid laneway, which lies to the rear, or to the east of these properties.

[4] The respondents are the servient tenement holders at present, whose residential property on the south side of Melgund Road is burdened along its west side by the right of way. The laneway thus is oriented along a north-south axis and runs in a straight line south from Melgund Road to the applicants’ property, where it ends.

[5] Sometime prior to 1973, the respondents’ predecessor in title encroached on the east side of the right of way by constructing a low wall and establishing a garden behind it, immediately to the west of the dwelling situated on what is now the respondents’ property. For ease of reference, I will refer to this as the “1973 wall”.

[6] In 1998, the respondents removed the 1973 wall and built a new wall within the right of way. The 1998 wall was built in the same location as the 1973 wall and in addition, the 1998 wall extended farther to the south, lengthening the encroachment.

[7] Between the south side of Melgund Road and the northerly extremity of the right of way at the northerly limit of the respondents’ property, there is City of Toronto property over which the laneway passes in order to access Melgund Road. From some time prior to 1973 up to the present, there has been a retaining wall on the east side of the laneway, on City property. That retaining wall was rebuilt by the respondents, apparently with City concurrence, at the time the 1998 wall was built. Both the 1973 and the 1998 walls built on the respondents’ property joined into the southerly extremity of the City retaining wall. The westerly faces of the City retaining wall, the 1973 wall and the 1998 wall were and are in line, creating the appearance of a continuous wall. In addition, on City property on the west side of the laneway and paralleling it is a concrete curb, which extends to the City sidewalk.

[8] In 2002, the properties in issue were put into the Land Titles system, and became subject to the Land Titles Act, R.S.O. 1990 c. L-5.

[9] In July 2010, the applicants purchased their property on Hilton Avenue, thereby becoming two of the dominant tenement holders. Their evidence, provided by the applicant Jones only, is that the survey which they obtained as part of their purchase did not disclose the encroachment on the right of way. The applicant Lester is a lawyer. He has not delivered an affidavit. It is unknown whether he or his firm (which is acting for the applicants herein) acted for the applicants in the property purchase and, if so, what steps (if any) were taken to ascertain that the right of way which the applicants were acquiring was in accordance with the 1916 grant. Jones’ evidence is that the applicant obtained a new survey in June 2012 as a result of a number of disagreements with the respondents over a number of property issues, particularly where the southern extremity of the respondents’ property abuts on the northern side of the eastern portion of the applicants’ property. That survey disclosed the aforesaid encroachment to the applicants, according to Jones.

[10] When a lack of both common sense and neighbourliness led to non-resolution of the several property disputes between the parties, the applicants instituted this Application. The various other property disputes between the parties are not part of this Application and as a consequence, unfortunately for the parties, this Application can do little to resolve their legal difficulties. The other dominant tenement holders are not part of this Application.

[11] There are three surveys in the materials. A 1986 survey in the respondents’ materials shows the location and length of both the City retaining wall at that time and the 1973 wall. Each set of parties to this Application obtained a survey in 2012 showing the location and length of both the City retaining wall at that time and the 1998 wall. My findings about the location and length of the City retaining wall, the 1973 wall and the 1998 wall are based on the surveys and photographs which are in evidence.

findings and conclusions

[12] Measuring the laneway from the south edge of Melgund Road, including the width of the municipal sidewalk over which the laneway passes, 16 feet, 8 ¾ inches of the laneway is on City property. At all times, the City retaining wall, located entirely on City property, extended to the southern extremity of the City property.

[13] No part of the right of way in issue is on City property. It is entirely on the respondents’ property, immediately to the south of the City property.

[14] The 1973 wall extended 23 feet, 9 ½ inches south from the line between the southern extremity of the City property and the northern extremity of the respondents’ property.

[15] The 1998 wall extends 72 feet, 4 inches south from the line between the southern extremity of the City property and the northern extremity of the respondents’ property.

[16] Consequently, the 1998 wall extends 48 feet, 6 ½ inches farther to the south than the 1973 wall did. The distance from the south end of the 1998 wall to the southern extremity of the right of way, at the northern extremity of the applicants’ property, is 26 feet, 6 ¾ inches.

[17] There are three significant features of this right of way dispute, I find. First, the laneway, at its north end, intersects at right angles with, and stops at Melgund Road, a municipal street. The most northerly 16 feet, 8 ¾ inches of the laneway is on City property, and not on the right of way.

[18] Second, the northern end of the 1998 wall located in the right of way joins into the City retaining wall, which is on City property. The westerly faces of them are in line. The City retaining wall narrows the laneway in the immediate area of where vehicles must turn 90 degrees, into and from Melgund Road. The difficulty thus caused is enhanced by the presence of the concrete curb on City property on the west side of the laneway, which runs parallel to it. This is the narrowest part of the laneway. The line formed by the westerly face of the City retaining wall and the 1998 wall angles to the east, so that the laneway adjacent to the south end of the 1998 wall is wider than the laneway adjacent to the City retaining wall. The laneway adjacent to the City retaining wall is 11 feet, 7 inches wide. The laneway adjacent to the south end of the 1998 wall is 11 feet, 11 inches wide.

[19] Third, I find from the evidence herein that the 1998 wall which narrows part of the right of way does not create a substantial obstruction either to the applicants’ rights pursuant to the 1916 grant or the rights of other dominant tenement holders. My reasons are as follows.

[20] The City retaining wall, which is beyond the reach of this Application because it is not on the right of way and the City is not a party, creates a significant obstruction to passage along the laneway. That is the narrowest part of the laneway. That narrowest part, bounded by the City retaining wall on the east and the concrete curb on the west is also where vehicles entering and leaving the laneway must make a 90 degree turn into or out of the laneway. Manoeuvring difficulties result from this. From Jones’ evidence, these difficulties are worse in winter because of snow accumulations and slipperiness. I think that shorter days and longer nights also add to this.

[21] In reviewing Jones’ affidavits, her complaints about the difficulties allegedly caused by the encroachment of the 1998 wall on the right of way and the laneway thereon are in fact complaints about difficulties caused by the City retaining wall, which is not on the right of way. Jones ignores the fact that part of the laneway is on City property, which leads her to attribute the difficulties on the City portion of the laneway, described above, to the right of way encroachment. This is demonstrated in paragraph 19 of her affidavit dated November 29, 2012 and elsewhere therein. In paragraph 19, she states that “The Obstruction” is on the right of way and that it extends from the southernmost part of the respondents’ house “to the sidewalk at Melgund Road, on the northerly edge of the Servient Land”, and that at its “northerly point, adjacent to the sidewalk at Melgund Road, the Obstruction encroaches onto the right of way…”. This is clearly incorrect because it ignores the presence of City property over which the laneway runs, to the north of the right of way in issue.

[22] In paragraph 21 of her affidavit, Jones complains of the “narrow corridor” which is the “entrance of the Right of Way at Melgund Road”. This is not part of the right of way. This part of the laneway is on City property. In paragraph 23, Jones sets out difficulties which the applicants have had turning from Melgund Road into the right of way because of the “retaining walls”. This is not part of the right of way. This part of the laneway is on City property. In paragraph 24, Jones refers to “the situation” being aggravated by winter conditions. The only situation to which she has referred is not on the right of the way. It is on City property. She does refer to water draining from the northwest corner of the respondents’ house onto the right of way where it freezes in the wintertime. She also refers to an incline “at the entrance to the Right of Way” which adds to winter driving difficulties, given the narrowing at that point. The incline is steepest on the City portion of the laneway, based on the photographs in evidence. Within the right of way, the incline is a minor change in grade. In paragraph 25, Jones states that Lester slid twice while driving “into the entrance of the Right of Way”. I find it is probable that this is, in fact, a reference to difficulty driving on City property, not on the right of way. I read Jones’ similar complaints in paragraph 26 in the same way. Alternatively, given Jones’ failure to distinguish between the part of the laneway on City property and the part of the laneway on the right of way, I find that this evidence does not prove that these difficulties occurred on the right of way.

[23] In paragraph 27, Jones expresses the hope that, in the future the applicants will be able to avoid accidents “in the entrance to the Right of Way”. However, it is her concern that “the unilateral encroachment by the Respondents on some 2 feet, 7 inches of the paved Right of Way at the entrance from Melgund Road has inevitably and unnecessarily increased the risk that” the Applicants “will in fact suffer some kind of driving mishap, simply because of the narrowness of the Right of Way.” I find that all of this refers to the narrowness of the laneway on City property and not to the right of way.

[24] The same is true about Jones’ assertions in paragraphs 28 and 29. In her assertions in paragraph 31 Jones again does not explicitly distinguish between the narrowness on City property and the right of way encroachment. Since the narrowness is greater on City property than on the right of way, I find that the difficulty referred to in paragraph 31 which a contractor had in using the laneway due to its narrowness arose on City property, at the entrance to the laneway. This is confirmed by Jones’ concluding words in paragraph 29 that the “pinch point” is at the entrance, between the two retaining walls, and that the assertions in paragraph 31 are an example of that.

[25] Jones’ assertions about the entrance into the right of way from Melgund Road are the reason why, in what I described as the first significant feature of this dispute, I have described the most northerly portion of the laneway as including where it passes over the municipal sidewalk. This is the area where Jones describes difficulties due to narrowness which, she attempts to suggest, are a feature of the right of way.

[26] In addition, I conclude that the encroachment resulting from the 1998 wall is not a substantial obstruction of the right of way for the following reasons. There is one entrance to the laneway, at Melgund Road. The laneway is narrowest at this point, on City property. This “pinch point” acts like a filter. Larger vehicles cannot get into the laneway and therefore have no problem with the encroachment in issue, which is farther to the south. Smaller vehicles which are capable of passing through the “pinch point” at the entrance to the laneway on City property have no substantial difficulty because of the encroachment, for three reasons. First, the laneway is wider there than at the entrance “pinch point”. Second, the laneway is straight at that point and so is the line of travel. Third, there is no evidence of any obstruction along the west side of the laneway opposite the encroachment. Further, at the other end of the laneway, the applicants’ own garage encroaches on the right of way and the laneway. The applicants’ use of the right of way is made more difficult by this encroachment because they must also turn here at 90 degrees to access their garage from the laneway, or to access the laneway from their garage.

[27] Looked at cumulatively, the substantial obstructions to passage along the laneway are at its northern and southern extremities and do not result from the respondents’ actions.

[28] Jones’ evidence, I find, does not establish that the 1998 wall causes any difficulty in using the right of way. In addition, there is no evidence that any other dominant tenement holder has ever been impeded in any way in exercising rights under the 1916 grant by either the 1973 wall or the 1998 wall.

[29] I find that, for the entire 72 feet, 4 inches of the 1998 wall, it parallels the laneway as it presently exists and leaves reasonable and adequate room for the passage of both people and ordinary vehicles. Vehicles which are larger than ordinary are not obstructed by the 1998 wall because they cannot enter the laneway, due to the narrowness of its opening on City property.

The Law

[30] The applicants take the position that the 1998 wall is a permanent structure, which entitles them to the remedies which they seek.

[31] In Pettey v. Parsons, [1914] 2 Ch. 653 Cozens-Hardy M.E., held at page 662 that the obstruction of a private right of way is not actionable unless there is a real, substantial interference with the enjoyment of it.

[32] In Devaney v. McNab (1921), 1921 557 (ON CA), 69 D.L.R. 231 (Ont. C.A.), Middleton, J. delivered the majority reasons. The case involved a right of way which was intruded upon by a permanent, overhead fire escape. Middleton J. held that “(i)n each case it appears to me that it must be regarded as a question of fact, and upon the undisputed state of affairs here I can come to no other conclusion than that this structure is a substantial interference with the plaintiffs’ right.” In addition, he held “(i)t is well settled that the rights of the parties must be determined according to the true construction of the grant (see United Land Co. v. Great Eastern R.W. Co. (1875), L.R. 10 Ch. 586); and it is to be observed that the grant here is in the widest possible terms. It follows, I think, that the grantor must not derogate in any way from his grant. Where the thing that is complained of is the erection of a substantial and permanent structure upon the land over which the grantor has already given the right of way, it appears to me to be almost impossible to say that there is not a real and substantial interference with the right conveyed.”

[33] In the case at bar, the 1916 grant created the right of way in issue “for the purpose of ingress, egress and regress” to and from the properties owned by the dominant tenement holders. In my view, while the 1998 wall is a permanent structure within the right of way, it is not a substantial structure in that it does not substantially interfere with the right conveyed. It is an intrusion upon the right of way but it does not obstruct people making their way thereon, for the reasons given. Consequently, the 1998 wall is not a real, substantial interference with the rights given by the 1916 grant. As Middleton J. held, the Court should not interfere when the encroachment “does not in truth and in substance affect the beneficial use of the right granted …”.

[34] That is sufficient to dismiss this Application.

additional conclusions

[35] Substantial time in argument was directed to the proper interpretation of several sections of the Real Property Limitations Act, R.S.O. 1990 c. L-15 (“the RPLA”). I will address these issues for the sake of completeness.

[36] I begin by noting that s. 51 of the Land Titles Act states that no rights may be acquired in land by “adverse possession” after the land is registered under that Act, as the lands in issue were in 2002. Since the evidence herein describes the existence of the 1973 wall as of that date and does not say when it was built, the evidence establishes that it existed for 25 years up to its removal in 1998. The 1998 wall then replaced the 1973 wall and extended it. The 1998 wall was in place for 4 years up to 2002.

[37] Based on the authority of Mykel v. Doyle, (1880) 45 U.C.Q.B 65 (C.A.) and the cases which have followed it, the RPLA applies only to creation of an easement, and not to extinguishment of it. See, in particular, Midanic v. Gross [1957] O.W.N. 35 (C.A.). The RPLA thus does not support the respondents’ contention that the encroachments on the right of way since 1973 have extinguished the right of way to that extent, due to the passage of time.

[38] The respondents therefore submit that the taking of possession of part of the right of way by means of encroachment, which possession is adverse to the interests of the dominant tenement holders, has led to the creation of an easement on the original easement, by reason of the encroachments in issue. Thus, the respondents seek the protection of the RPLA based on the encroachment first by the 1973 wall and second by the 1998 wall.

[39] In addition, the respondents submit that the dominant tenement holders abandoned that part of right of way which was kept from their use by the aforesaid encroachments.

[40] I reject both of these positions.

[41] The submission that an easement was created on the original easement by taking possession of part of the original easement by means of encroachment is not sustainable in law. The respondents are the owners of the property which is subject to the original easement for the purpose of a right of way. The original easement, burdening the respondents’ property, makes them the servient tenement holders thereof. The respondents’ assertion is that they now have the benefit of a new easement on that easement, by reason of the length of time that their encroachment on the original easement has existed. If correct, their assertion would make them the dominant tenement holders of the new easement because it is for their benefit, and the dominant tenement holders of the original easement would become the servient tenement holders of the new easement because their rights under the original easement are burdened by the new easement. Speaking solely of the property which is the subject of the encroachment, it is the respondents’ position that they are, simultaneously, the owners, servient tenement holders and dominant tenement holders of it.

[42] The law is clear that the dominant and servient tenements cannot be owned by the same persons. See Attrill v. Platt (1883), 1884 9 (SCC), 10 S.C.R. 425; Innes v. Ferguson (1894), 21 O.A.R. 323, aff’d 1895 58 (SCC), 24 S.C.R. 703. In addition, the law provides that the taking of possession of part of an easement, as here, merely suspends the easement to that extent, for so long as that taking of possession continues. For the respondents to recover the benefit of that which has been granted to the dominant tenement holders, the easement would have to be extinguished. For the easement to be extinguished, there must be more than unity of possession. There must be both unity of possession and unity of ownership. Unity of ownership requires that both the servient tenement and the dominant tenements (here there are several) be owned by the same person. See Charles Harpum, Stuart Bridge and Martin Dixon ed., Megarry and Wade “The Law of Real Property”, 8th ed. (London: Sweet & Maxwell, 2012) s. 29-014 and the cases cited therein; Anne Warner LaForest ed., Anger and Honsberger “The Law of Real Property”, 3d ed. (Toronto: Canada Law Book) s. 17.20.60(a) and the cases cited therein, particularly Innes v. Ferguson (supra).

[43] It is implicit in the concept of unity of possession merely suspending an easement that that part of the easement is not lost to the dominant tenement holders by such possessory taking. The right to the benefits of the easement, being merely suspended, is restored to the dominant tenement holders when that possessory taking ceases.

[44] The respondents’ argument that the dominant tenement holders abandoned part of the 1916 easement is not well founded because mere non-user of the encroached portion of the easement is not sufficient in law to infer that the dominant tenement holders have abandoned that part of their right of way. They must be shown to have intended to abandon the right to make use of the encroached portion. See Megarry and Wade op. cit. at s. 29-009. The evidence here simply fails to establish this.

disposition

[45] The Application is dismissed.

[46] The usual rule is that costs follow the event. In this case, I decline to award costs to the respondents. They constructed the 1998 wall encroaching on the right of way without either notice to or discussion with the dominant tenement holders. I regard their conduct as underhanded and overbearing. They took what their neighbours, the dominant tenement holders are entitled to have. While that taking is not so substantial that it merits upsetting the status quo by giving the applicants the relief which they seek, it was accomplished in a manner which is deserving of disapproval.

John Macdonald, J.

Released: December 23, 2013

COURT FILE NO.: CV-12-00461048
DATE: 20131223

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

REID LESTER and CAROL JONES

Applicants

– and –

JAMES WILLIAM CHANWELL BOND and MARY-ELIZABETH BOND

Respondents

REASONS

J. Macdonald J.

Released: December 23, 2013