CITATION: Frohlich v. Ferraro and Ferraro, 2016 ONSC 3324
COURT FILE NO.: CV 12-047SR
DATE: 20160519
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Craig Frohlich
John D. Middlebro’, for the Plaintiff
Plaintiff
- and -
John Ferraro and Diane Ferraro
James A. Ironside, for the Defendants
Defendants
HEARD: April 25, 26 & 27, 2016
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
The Issue
[1] Pine Tree Harbour at Miller Lake, Ontario, is a tranquil and beautiful place. Cottagers go there to make family memories that last a lifetime.
[2] Craig Frohlich, the Plaintiff, and John and Diane Ferraro, the Defendants, are butting heads. Mr. Frohlich is asserting his property rights over his “water lot”. The Ferraros allege that they have acquired a prescriptive easement over the dry land portion of Mr. Frohlich’s water lot.
[3] Are the Ferraros entitled to that prescriptive easement? That is the issue to be decided. Everything else flows from there, no pun intended.
The Pleadings
[4] Mr. Frohlich’s Statement of Claim was issued on February 27, 2012. It was amended on April 3, 2012. Paragraph 1 of the Amended Claim has the following prayer for relief.
- The Plaintiff claims:
a. a declaration that the Defendants, or either of them, have entered on, damaged, trespassed, or otherwise caused nuisance upon his lands and premises, legally described as PT LOT 1 CON 8 WBR ST. EDMUNDS; WATER LT IN FRONT OF LT 1 CON 8 WBR ST. EDMUNDS, AS IN R374414, EXCEPT EASEMENTS THEREIN: NORTHERN BRUCE PENINSULA (the “Frohlich Property”);
b. an interim, interlocutory, and permanent injunction restraining the Defendants, either of them, or any persons claiming through them, from entering upon any part of the Frohlich Property for any purpose, whatsoever;
c. an injunction or mandatory order compelling the Defendants, or either of them, to remove from the Frohlich Property any structures and debris placed or built by them, and to restore the Frohlich Property to its original state, at their expense;
d. in the alternative, damages in an amount to be determined to compensate the Plaintiff for any removal of the structures and debris placed by the Defendants and undertaken by him, and for restoration of the Frohlich Property at their expense, should the Defendants fail to remove the encroaching structures within thirty (30 days) from the date of any such Order;
e. prejudgment interest on any amount awarded in accordance with section 128 of the Courts of Justice Act, RSO 1990, c C43, as amended;
f. postjudgment interest on any amount awarded in accordance with section 129 of the Courts of Justice Act, RSO 1990, c C43, as amended;
g. costs of this proceeding on a substantial indemnity basis, plus all applicable taxes; and
h. such further and other Relief as to this Honourable Court may seem just.
[5] Prior to the conclusion of the Plaintiff’s case at trial, an oral motion was brought to further amend the Claim. That request was opposed by the Defendants.
[6] I granted the motion, with reasons to follow. Subparagraph 1(b) of the Claim now reads as follows:
an interim, interlocutory and permanent injunction restraining the Defendants, either of them, or any persons claiming through them, from entering upon any part of the Frohlich property not covered by water for any purpose, whatsoever.
[7] Frankly, I was surprised that the amendment sought was opposed.
[8] The relevant Rules of Civil Procedure, Rules 26.01, 26.02 and 26.06, are set out below.
Rule 26 – Amendment of Pleadings
General Power of Court
26.01 - On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. R.R.O. 1990, Reg. 194, r. 26.01.
When Amendments May be Made
26.02 - A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or
(c) with leave of the court. R.R.O. 1990, Reg. 194, r. 26.02.
Amendment at Trial
26.06 - Where a pleading is amended at the trial, and the amendment is made on the face of the record, an order need not be taken out and the pleading as amended need not be filed or served unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 26.06.
[9] It is well settled that the use of the mandatory language in Rule 26.01, the word “shall”, has reduced the Court’s former discretion to refuse an amendment. Amendments to pleadings, at any stage of the action (including at trial), are presumptively approved: that is the general principle. Unless prejudice would result from the amendment that could not be compensated for by costs or an adjournment, the granting of the amendment is mandatory.
[10] The amendment granted at trial occasioned absolutely no prejudice to the Defendants. In fact, it was to their favour. The amendment narrowed, not widened, the scope of relief being sought by Mr. Frohlich. Previously, he was asking that the Ferraros be prohibited from stepping foot on the ground of his entire water lot, whether that ground is dry or covered by one inch of water or by several feet of water. Now, the Plaintiff is asking merely that the Ferraros be prohibited from entering upon any part of his property, including any part of his water lot, that is not underwater.
[11] A practical example will help illustrate the point. Imagine Mr. Ferraro standing in two feet of water but within Mr. Frohlich’s water lot. That would have been captured by the Claim before it was further amended at trial. It would not be captured by the Claim now, in terms of the injunctive relief being sought.
[12] No adjournment was requested by the Defendants, nor was any necessary. They were helped, not harmed, by the amendment.
[13] The amendment was completely consistent with the evidence adduced at trial up to that point. I would have granted the amendment even if it had not been requested until after the close of the Plaintiff’s case.
[14] The Ferraros’ Statement of Defence and Counterclaim, dated July 20, 2012, at paragraph 13, sets out the relief being sought in the Counterclaim.
- The Plaintiffs by Counterclaim, hereinafter referred to as ‘Ferraro’ claim as follows:
a. Damages;
b. An easement by prescription from their property to the water’s edge as it fluctuates from time to time;
c. Costs of this action on a substantial indemnity basis, together with HST on legal fees and applicable disbursements payable by the Defendant by Counterclaim to the Plaintiffs by Counterclaim;
d. Such further and other relief as this Honourable Court deems just.
The Trial
[15] The parties brought their dispute before me in Owen Sound, and a short trial was held over 2.5 days during the last week of April 2016. Closing submissions by counsel were delivered in writing in May.
[16] At trial, I heard from three witnesses called by the Plaintiff:
(i) Craig Frohlich, the Plaintiff himself;
(ii) Patricia McMullen (the daughter of the former owners of the property now owned by Craig Frohlich, Mr. and Mrs. Willis); and
(iii) Howard Frohlich (Craig’s father and the owner of the property, through his company, before selling it to his son).
[17] I heard from three witnesses on behalf of the Defendants:
(i) John Ferraro, one of the Defendants (the other is his wife);
(ii) Stanley Holba [a long-time neighbour and owner of the property on the other side of the Willis/Frohlich property (in other words, the Willis/Frohlich property is roughly in the middle, with the Holba lot to the west and the Ferraro lot to the east)]; and
(iii) Bernice Ann Barber (daughter of the Sandhams, the family who sold the property to the Ferraros).
[18] As there are two Frohlichs who testified at trial, the Plaintiff and his father, I note for the reader’s benefit that any reference below to “Mr. Frohlich”, unless otherwise stated, is to the Plaintiff, Craig Frohlich.
II. The Issues and the Positions of the Parties
[19] There is really just one legal issue: are the Ferraros entitled to the prescriptive easement that they seek?
[20] As reflected in his counsel’s written closing submissions, the position of the Plaintiff is summarized as follows.
[21] First, the Ferraros have not proven on balance an essential ingredient of their claim: uninterrupted and continuous use, for the prescribed period of time (whether twenty or forty years), of the dry land portion of Mr. Frohlich’s water lot.
[22] Second, (the following submission is outlined in paragraph 86 of the Plaintiff’s written argument):
- In the alternative, the Plaintiff submits that the Ferraros’ claim for an easement by prescription is deficient for a number of reasons:
a. First, the Sandhams, the Ferraros, or both, had permissive access only to the water over the dry lands in the Water Lot at some point in the history of the two properties.
b. Second, their use of the Water Law was not “as of right”.
c. Thirdly, their use has not been open and uninterrupted.
d. Fourth, it has not been peaceful.
e. Finally, any access over the dry lands taken by the Ferraros or their predecessors in title was not from acquiescence by the Frohlich predecessors but merely allowed to exist as a display of good neighbourliness.
[23] Third, assuming that the Plaintiff is found to be the lawful owner of the water lot’s exposed lands, and assuming that the claim of the Ferraros for a prescriptive easement is dismissed, Mr. Frohlich is now prepared to accept nominal damages of $1.00 for trespass.
[24] Fourth and finally, Mr. Frohlich seeks a permanent injunction to prevent the Ferraros, and others claiming through them, from trespassing on the Plaintiff’s property that is not covered by water.
[25] The position of the Defendants is summarized as follows (note that the Ferraros’ written closing submissions were delivered late and contrary to my direction as reflected in my Endorsement made on 27 April 2016, however, I have considered them nonetheless).
[26] First, the Ferraros and the Sandhams before them have had continuous, uninterrupted, open and peaceful access to the water, without permission, since 1952, and thus, the Ferraros’ claim for a prescriptive easement must succeed, whether by statute or in accordance with the common law.
[27] Second, the area over which the Defendants assert their prescriptive easement rights, and the purposes for which they intend to exercise those rights, are strictly confined. In the Ferraros’ written argument, under the heading “Order Requested”, the following paragraphs, 70(a), 71 and 72, appear.
[70] The Defendant’s claim:
a) an easement over Part 3 of 3R-8291, being previously described as the WATER LOT IN FRONT OF LT 1 CON 8 WBR ST. EDMUNDS, AS IN R374414, EXCEPT EASEMENTS THEREIN: NORTHERN BRUCE PENINSULA, and being defined in Paragraph 1 of the Statement of Claim as the “Frohlich Property”.
[71] For greater clarity and certainty, the easement will run the 300 feet of ‘frontage’ where the Ferraro property abuts the Shore Road Allowance to the high water mark, wherever that may be from time to time as the water washes/laps up the land/shore.
[72] For further certainty, Schedule “B” to this submission will give a “visual” of the easement the Defendants are seeking. This shows the defined area of the easement which will be qualified only to allow the Defendants the right to travel only so far as the high water mark. There is no effort to seek to build, linger or do anything on the Plaintiff’s land (keeping in mind there is uncertainty where that might be specifically along the 4th course, being the shoreline) except travel for the purpose of accessing the water in Pine Tree Harbour.
[28] Third and finally, the Plaintiff himself testified that he has sustained no damages due to the Ferraros’ alleged trespassing, therefore, no damages ought to be awarded.
III. Analysis
The Law
[29] The doctrine of lost modern grant continues to exist in Ontario and is the foundation for the acquisition of prescriptive easements. It is based on the legal fiction that the owner of the property in question originally made a grant of the easement to the claimant (or the claimant’s predecessor), despite the absence of any direct evidence of that grant having been made. 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, at paragraph 56 [citing the earlier decision of the Court of Appeal for Ontario in Henderson v. Volk (1982) 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379, at page 382].
[30] The prescriptive easement claimant must prove, on balance, a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, for a period of twenty (20) years. 1043 Bloor Inc., supra, at paragraph 57 (citing Henderson, supra, at page 383).
[31] The claimant’s enjoyment of the easement must not be permissive (that is, not at the will and pleasure) of the owner of the property in question. 1043 Bloor Inc., supra, at paragraph 59 (citing Henderson, supra, at page 383). See also Kaminskas v. Storm, 2009 ONCA 318, at paragraph 30.
[32] Acknowledgement by the claimant that his/her use is not as of right, at any time during the twenty year period, will defeat the claim for a prescriptive easement. 1043 Bloor Inc., supra, at paragraph 60 (citing the earlier decision of the Court of Appeal for Ontario in Garfinkel v. Kleinberg, 1955 CanLII 112 (ON CA), [1955] O.R. 388, at page 394).
[33] There are sound policy reasons for a Court exercising caution before finding that a prescriptive easement has been established. Such a finding tends to subject the property’s owner to a burden without compensation; it may discourage acts of kindness and good neighbourliness; and it may punish the kind and thoughtful while rewarding the aggressor. 1043 Bloor Inc., supra, at paragraphs 62-64 (citing Henderson, supra, at page 384 and the decision of the Court of Appeal for Ontario in Temma Realty Co. v. Ress Enterprises Ltd., 1968 CanLII 342 (ON CA), [1968] 2 O.R. 293, at page 297).
[34] In addition to the above references to the leading jurisprudence, the following provisions (sections 31, 32 and 34) of the Real Property Limitations Act, R.S.O. 1990, Chapter L.15, as amended, are instructive.
Right of way easement, etc.
- No claim that may be made lawfully at the common law, by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed, or derived upon, over or from any land or water of the Crown or being the property of any person, when the way or other matter as herein last before-mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way or other matter was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way or other matter as herein last before-mentioned has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. R.S.O. 1990, c. L.15, s. 31.
How period to be calculated, and what acts deemed an interruption
- Each of the respective periods of years mentioned in sections 30 and 31 shall be deemed and taken to be the period next before some action wherein the claim or matter to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those sections, unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made. R.S.O. 1990, c. L.15, s. 32.
Necessity for strict proof
- In the cases mentioned in and provided for by this Act, of claims to ways, water courses or other easements, no presumption shall be allowed or made in favour or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this Act as is applicable to the case and to the nature of the claim. R.S.O. 1990, c. L.15, s. 34.
[35] Those provisions mean, in part, that “a statutory claim to a prescriptive easement based on a 40-years’ user can be defeated by permission only where that permission was given in writing”, while “claims to a prescriptive right based on the doctrine of lost modern grant (or with respect to the statutory right based on 20 years’ user) can be defeated by consent or permission, whether written or oral”. Kaminskas, supra, at paragraphs 34-35.
[36] Finally, although the Plaintiff’s written submissions deal with the law as it pertains to injunctive relief, the written argument filed by the Defendants is silent on that issue. That is understandable. There is an implied acknowledgement by the Ferraros that, if they fail in their claim for a prescriptive easement, Mr. Frohlich is entitled to the injunction that he seeks. That is made clear at paragraph 4 of the Defendants’ written submissions, where the “fundamental issue” to be decided is framed as either the injunctive relief sought by Mr. Frohlich or the prescriptive easement sought by the Ferraros.
[37] Hence, it is unnecessary for this Court to outline in any detail the law as it pertains to injunctions.
[38] As for damages, the Plaintiff cites no authority for his request that he be awarded nominal damages for trespass in the amount of $1.00, although it is trite law that a Court may award a small, token quantum as compensation where it finds a violation of a legal right that it deems worthy of protection, such as in a case of trespass to property, but also finds no actual harm done.
The Facts Not in Dispute
[39] First, let me try to paint a picture for the reader, in words (not an easy thing to do).
[40] The Holbas, the Willis’/Frohlichs and the Sandhams/Ferraros all have properties that front on to a small harbour which flows from Lake Huron. The area is called Pine Tree Harbour, at Miller Lake, on the Bruce Peninsula.
[41] To the south of their properties is a shore road allowance that is owned by the Municipality.
[42] The Willis/Frohlich property is roughly in the middle. The Holbas are to the west. The Sandhams/Ferraros are to the east.
[43] Imagine yourself looking at a survey (several were filed as Exhibits at trial). The Holbas are on the left, the Willis’/Frohlichs in the middle, and the Sandhams/Ferraros on the right. Below those land lots is the shore road allowance. Below that is water (the harbour). There is an “island” (not always surrounded by water) in the harbour.
[44] It is that island that Mr. Frohlich is most interested in protecting his ownership of and which the Ferraros have, in the past, been most interested in using.
[45] The Holbas have been there since 1960.
[46] The Willis’ were there from 1956 to 2002, although the parents had both passed away before Patricia McMullen (their daughter) sold the property to Howard Frohlich’s company in 2002. Howard sold the property to his son, Craig (the Plaintiff), in 2010.
[47] The Sandhams were there from 1952 to 1990. The Ferraros bought the property in 1990. Diane Ferraro is the current sole owner on title.
[48] Quite responsibly, at paragraphs 2, 3 and 10 of their written argument, the Ferraros concede that Mr. Frohlich owns the water lot (Part 3 on Plan 3R-8291), which property is substantial in size (nearly 19 acres) and includes land that is fully in front of the Ferraros’ cottage (between their cottage and the water).
[49] In other words, unless water levels were to rise dramatically, it would be impossible for the Ferraros to access the water from their cottage property without stepping foot on land owned by Mr. Frohlich.
[50] To be more specific, unless the water level is very high, the Ferraros’ straightest and most direct path to the water from their cottage building would take them from their grass, to the shore road allowance, to some dry land owned by Mr. Frohlich, and finally in to the water.
[51] Everyone agrees that the water level in the area of Pine Tree Harbour fluctuates over time, sometimes considerably so.
Findings of Fact on the Key Issues
[52] This trial took a turn, to the detriment of the Ferraros, when their final two witnesses testified – Mr. Holba and Ms. Barber. The evidence of those two witnesses, which evidence I readily accept because they were, by far, the two most disinterested (impartial and objective) witnesses called by either side, destroys the claim of the Defendants.
[53] Mr. Holba testified that he always crossed the Frohlich property (formerly owned by the Willis’) with the permission of the Willis’. He would ask permission; the Willis’ would give it. I accept that evidence.
[54] Further, Mr. Holba contradicted the assertions of the Ferraros that portions of the water lot are crucial to the enjoyment of their cottage. Not so for Mr. Holba, who has been there for a much, much longer period of time. For instance, Mr. Holba testified that he launched his boat from his own cottage property or, when water levels were very low, from the property owned by the Sandhams (now the Ferraros), not from the Willis/Frohlich property, including the island. I accept that evidence.
[55] Ms. Barber testified that she never used the structure on the island in the water lot without being in the company of the Willis’, or one of them. I accept that evidence. That leads to the logical conclusion that, although Ms. Barber (then a young child) did not get permission from the Willis’ to be on the dry land in Part 3, someone did (probably her parents).
[56] The evidence of Mr. Holba and Ms. Barber suggests that both of them knew, or at least assumed, that the Willis’ owned the island in the water lot.
[57] Largely on the basis of the evidence of Mr. Holba and Ms. Barber, I find as a fact that, at least until the Ferraros acquired the property in 1990, any use of the dry land in Part 3 by the neighbours on either side of the Willis’ was with the permission of the Willis’.
[58] We know from the real estate documents that the Ferraros acquired possession of the property on June 8, 1990 (see the Agreement of Purchase and Sale between Mr. Ferraro, as the purchaser, and Mr. Sandham, as the vendor).
[59] Mr. Frohlich testified that he erected “No Trespassing” signs around his property, near what he believed were the lot lines, in late spring 2010. Mr. Ferraro said that the signs were put up in early summer 2010.
[60] Much time was spent at trial on the exact timing of those signs being erected. I suspect that there was an effort by the respective parties to bring the date either just within twenty years or just beyond twenty years from June 8, 1990.
[61] It does not matter, frankly. What matters is that both sides agree, and both Mr. Frohlich and Mr. Ferraro testified, that the erection of the signs was a clear message, and the first of its kind, that the Ferraros no longer had permission to use Part 3, or at least portions of it.
[62] That mutual understanding is crucial. Logically, it can only mean one thing: that, before the signs were erected in 2010, the Ferraros had permission, even if implied, to use Part 3. I make that finding of fact.
Legal Conclusions
[63] I repeat, the prescriptive easement claimant must prove, on balance, for the relevant period of time, a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without the permission of the property owner.
[64] On a balance of probabilities, the Ferraros cannot prove that on these facts. On the totality of the evidence adduced at trial, most particularly the testimony of Mr. Holba and Ms. Barber and the common evidence of the Plaintiff and Mr. Ferraro concerning the significance of the erection of the “No Trespassing” signs, the earliest that the Defendants can establish their or the Sandhams’ use of dry land in Part 3 as being without the permission of the owner (the Willis’/Mr. Frohlich) is some time in the late spring or early summer of 2010 (far, far less than the twenty years required).
[65] This is not a case of mere acquiescence by the Willis’ and Mr. Frohlich. It is a case of permission to use, express (up to June 1990) or at least implied (post-June 1990).
[66] As such, the claim by the Ferraros for a prescriptive easement must fail. There is no need to address whether the other ingredients have been satisfied (for example, whether the use was peaceful).
[67] I reject the alternative argument advanced by the Ferraros, namely, that their claim can succeed even with permission by the property owner because it stretches back more than forty years, to 1952 (the Defendants rely upon section 31 of the Real Property Limitations Act, supra, quoted above in these Reasons).
[68] The Ferraros’ own written argument defeats that alternative claim. Paragraph 59 of the Defendants’ written submissions states as follows:
[59] It is acknowledged there is no direct evidence from Bernice Barber to cover the period from 1986 to the Ferraro purchase in the spring of 1990, but the evidence adduced by Ms. McMullen was clear that the access to, and the use of the water continued throughout this time period. There was no evidence of any interruption. Further, it would stretch the fact of “cottage life”, and the decades of access to the water, to determine that “user” period was interrupted by the four (4) year gap in the evidence.
[69] With respect, the Defendants have reversed the burden of proof. They must show that the use was uninterrupted; it is not up to the other side to establish that it was interrupted.
[70] Further, a review of the evidence at trial of Ms. McMullen does not support the assertion that the Sandhams’ use continued uninterrupted between 1986 and 1990. In fact, Ms. McMullen testified that she was not there often after her father died in 1984 but started attending more frequently (every second weekend, at least) after the Ferraros acquired their property in 1990. Thus, Ms. McMullen had limited opportunity to observe the Sandhams’ use of the area between 1986 and 1990.
[71] In addition, in their written argument, the Defendants submit that Ms. McMullen is generally an incredible witness whose evidence ought to be rejected; they cannot have it both ways. Given that position, it is odd for the Ferraros to point to Ms. McMullen as the witness who can fill the gap in the evidence for several years between 1986 and 1990.
[72] Finally, I cannot, as suggested by the Defendants, take some form of judicial notice of the fact that cottagers continue their patterns of use throughout the years. In fact, as children come and go, as Ms. Barber did, families (including the Sandhams) may very well alter their use of some portions of the surrounding area.
[73] The evidence does not establish, on balance, a 40-year period of uninterrupted use. The period, even if it began in 1952, did not continue uninterrupted for forty years. Placing the case at its very highest for the Defendants, on the evidence adduced at trial, the period of use by their predecessors, the Sandhams, continued uninterrupted for some 34 years (1952 to 1986).
[74] There is a complete lack of evidence as to what was happening with the Sandhams’ use of the surrounding property between 1986 and 1990.
[75] Consequently, whether twenty or forty years is the governing time period, the Ferraros have failed to prove their claim for a prescriptive easement. The longer period is defeated by the interruption in use. The shorter period is defeated by permission.
[76] The policy considerations against finding lightly a prescriptive easement give this Court great comfort in reaching the above conclusions and denying the relief requested by the Defendants.
[77] In a pivotal moment during the trial, Mr. Ferraro himself testified in cross-examination that it is possible to do everything that his family likes to do in Part 3 by accessing the water from the shore road allowance directly in front of his own property, something that Mr. Frohlich, although not required in law to permit if in fact that access trespasses on to dry land in the water lot, is prepared to allow. The Plaintiff testified to that at trial.
[78] It was clear to me at trial that the Ferraros are not required to access the island, for example, to do what they like to do at the cottage (like fish or sunbathe), however, they prefer to do so as it is better there. That may be so, but that is not enough to gain a legal right to access dry land in Part 3.
[79] We all have neighbours, at home or at the cottage, whose properties we envy. That is part of life.
[80] The claims by Mr. Frohlich for declaratory and injunctive relief are granted. This Court declares that the Defendants have entered and trespassed on the Plaintiff’s property. A permanent injunction shall issue restraining the Defendants, or anyone claiming through them, from entering upon any part of the Plaintiff’s property that is not covered by water.
[81] I leave it to the parties and their counsel to consider whether, in the Order itself, that wording ought to be amended to expressly exclude some dry land between the shore road allowance and the water, directly in front of the Ferraro cottage. Such an exclusion would be to the advantage of the Ferraros and would be consistent with Mr. Frohlich’s testimony at trial.
[82] Of course, as counsel know, such amended wording for the injunctive relief in the Order is far different than granting the prescriptive easement sought by the Defendants.
[83] As for Mr. Frohlich’s request that the Defendants be compelled to remove at their own expense any remaining structures that were placed or built by them on Mr. Frohlich’s property and restore that property to its original state, I am not satisfied that the evidence at trial supports that there are any such remaining structures. Thus, that relief is denied.
[84] Regarding damages, the Plaintiff’s position is entirely reasonable. I award to him $1.00 in nominal damages for trespass.
[85] There is no need for prejudgment interest. Surely, given the token quantum of damages awarded, there is no need for post-judgment interest either.
[86] The Defendants’ Counterclaim is dismissed.
IV. Conclusion
[87] A Judgment or Order shall issue in accordance with these Reasons. To summarize, (i) in large part, the claim of the Plaintiff, as amended, is granted, and (ii) the Counterclaim is dismissed.
[88] In the normal course, the Plaintiff would be entitled to some costs. I encourage the parties and counsel to settle that issue, barring which I will receive written submissions, with these guidelines. The Plaintiff shall file within thirty days of today. The Defendants shall file within fifteen days thereafter. No reply is permitted. Each submission shall be limited to two pages, excluding attachments such as offers to settle and dockets.
[89] Lastly, I want to encourage the parties to find some way to co-exist at Pine Tree Harbour in a peaceful manner. I would hate to see the Ferraros have to leave their slice of paradise. I do not think that they are bad people. I just think that they are wrong in law.
Conlan J.
Released: May 19, 2016