Court File and Parties

COURT FILE NO.: CV-10-218 DATE: 20161011 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Peter Majewsky Plaintiff

Daniel Pust, for the Plaintiff

• and -

Juris Veveris and Christina Miller-Veveris and Stewart Title Guaranty Company Defendants

Self-Represented

HEARD: June 7,8,9,10, 2016

REASONS FOR JUDGMENT M. J. Donohue, J

ORDER SOUGHT

[1] The plaintiff property owner, Peter Majewsky, seeks an order for a permanent right of way to the extent that the current laneway to his property encroaches onto the defendants’ land. He seeks an order for possessory title to the area of his house and yard including out buildings by way of adverse possession over a ten-year period. He also seeks a permanent right of way for the continued use, operation and maintenance of a cedar pathway on the basis that it has been in use for a twenty-year period.

[2] The claim against the defendant Stewart Title Insurance had previously been dismissed on consent.

OVERVIEW

[3] The parties had each purchased adjoining country properties to the west of Highway 10, Markdale, in the 1980s.

[4] In 2008, a casual interest by the defendant Veverises led them to do an online search of the boundary lines of their property. They determined from an aerial photograph of the boundaries that there were some encroachments on their property by their plaintiff neighbours. They commissioned a survey to confirm the actual encroachments later that year.

[5] Settlement discussions to resolve the boundaries were not fruitful and this litigation was commenced in 2010. The plaintiff claims possessory title to the disputed areas. The defendant neighbours, Mr. and Mrs. Veveris, hold paper title.

CHRONOLOGY

[6] The chronology of events underlying this action is as follows:

• 1969: A survey was done which set out the boundaries of the neighbouring properties.
• 1984: Christel Majewsky, the plaintiff’s mother, purchased 65 acres in an area west of Highway 10, Markdale. She weekended and vacationed there at a mobile home which had a fixed added room. She attended there with her common law spouse, Mr. Fohry as well as her son, Peter Majewsky, the plaintiff.
• 1988: Mr. and Mrs. Veveris, the defendants, residents of New Mexico, purchased 48 acres from the Mr. and Mrs. Lejins, residents of Saskatchewan.
• 1990: Mr. Fohry, Christel Majewsky’s spouse, was added as an owner on title to the plaintiff’s property.
• 1993: Fire destroyed the Majewsky mobile home with the added room. It was replaced by a bungalow, a three-bedroom house with a new septic tank, weeping bed and improved hydro wiring. It became Christel Majewsky and Mr. Fohry’s permanent residence.
• 2000: Peter Majewsky, the plaintiff, began bringing his spouse Laura Lizotte on visits to his mother’s property.
• 2007: Mr. Fohry passed away. Christel Majewsky sold the property and residence to her son Peter Majewsky, the plaintiff.
• 2008: Mr. and Mrs. Veveris observed an aerial survey online and became concerned about the boundary lines. They contacted Christel Majewsky and then her son Peter Majewsky as the new owner. They commissioned a 2008 survey which identified the encroachments.
• 2009: May 25, both properties were converted to Land Titles.
• 2015: Laura Lizotte, Peter Majewsky’s spouse, was added on title to the Majewsky property.

PROPERTY DESCRIPTIONS

[7] The plaintiff Majewsky property was Parts 4, 5, 6, 8 and 9 being parts of Lots 86 and 87 on Plan 17R -139. Parts 8 and 9 composed the laneway which was subject to a right-of-way of adjoining owners. They had a right-of-way in common with all others entitled over Part 10, which belonged to Canadian Pacific Railway.

[8] The defendant Veveris’ property was Part 7 on Plan R-139 with a right of way over Parts 8, 9, and 10, the laneway. Their property is located roughly to the north and northwest of the Majewsky property. It is unserviced, undeveloped land. They attended the property perhaps once a year and generally spent an hour or two. At the far end of the property there was a steel container unit. Over the years Mr. Fohry and later Mr. Majewsky would come on to their land to mow a path across to this storage unit. It was done as a kindness to be neighbourly. Mr. Veveris confirmed that they had permission and were free to do so.

[9] An angled property line runs roughly north-westerly from the end of the laneway from a hydro pole. The misinformed location of this angled boundary line led to the encroachment and dispute.

[10] When the Majewskys (first Christel and later Peter) and the Veveris’ purchased their respective properties, there were no monuments or stakes marking the property boundaries. All had the 1969 survey, which indicated the angled property line from the most westerly hydro pole.

[11] A line of trees and partial fencing extends off on an angle from that hydro pole. The real estate agents for Christel Majewsky and for the Veverises respectively indicated or suggested that the angled tree line was the angled boundary line of the survey.

THE ANGLED TREE LINE

[12] Mr. Veveris testified at trial that he never considered the tree line along the yard of the house to be the angled boundary.

[13] I do not accept this evidence for a number of reasons as follows.

[14] He never objected to the location of house and mowed yard for twenty years. He admitted that he and his wife were under the mistaken belief that the house and yard were on their neighbours’ property.

[15] Under cross-examination he agreed that Mr. Fohry had pointed vaguely to the tree line indicating it was the boundary and Mr. Veveris never contradicted him.

[16] Mr. Veveris admitted that he had no concerns about encroachment on their land until they did the online aerial survey investigation in 2008. He agreed it was idle curiosity that made them do it. He assumed that the Majewskys were occupying their own land.

[17] The Veverises built an access entrance road into their land to the north and parallel to that angled tree line.

[18] The Majewskys did all the maintenance of that tree line. Within the tree line is manicured lawn maintained by the Majewskys.

The Confusion Explained

[19] It is not surprising that the real estate agents would conclude the angled tree line that runs from the hydro pole was the angled boundary line on the survey.

[20] Highway 10 in that area does not run truly north. It runs roughly northwest. The laneway from Highway 10 runs roughly south-south-west from Highway 10 but curves northerly at the hydro pole and then southerly before turning due west as the Majewsky driveway to the house.

[21] The angled tree line from the hydro pole, which had the appearance of the boundary line, ran roughly northwest.

[22] The actual angled boundary runs roughly due west.

[23] I have extracted this information from the 1969 and 2008 surveys. The parties themselves did not give their evidence in terms of the compass nor did they appear to have consulted a compass at any time.

[24] I infer that the angled highway, the angled laneway and the angled tree line combined to misguide the real estate agents and the two sets of property holders, leading them to a mutual mistake as to the boundary. This mutual mistake has long existed.

Evidence of The Parties

[25] At the time that the boundary dispute was raised, Mr. Majewsky had only owned the property for four months. He was, however, very familiar with it. He purchased it from his mother, Christel Majewsky. He had weekended and vacationed at the property since she bought it in 1984. He helped do some of the work on the property to assist his mother and her spouse, Mr. Fohry. Mr. Majewsky’s spouse Ms. Lizotte had begun attending with him at the property when they began dating in 2000. She is now a registered owner on title.

[26] Mr. Majewsky and his mother Christel Majewsky testified, as did Ms. Lizotte, seeking the possessory claim.

[27] Mr. Majewsky had the same understanding of the property line as his mother, that it ran from the last hydro pole on the laneway along the tree line. He said there was barbed wire fencing amongst the trees and at one time it had had some chicken wire but that had since been cleaned out.

[28] Mr. Veveris testified for the defendants.

[29] All witnesses were in essence self-interested but in general, I found them all to have made an effort to be truthful with the court. They all demonstrated courtesy and dignity throughout the trial. There were only a few contentious facts.

THE LANEWAY

Evidence Regarding the Laneway

[30] As noted above, the laneway swings north of Part 9 onto Veveris land in the area of the hydro pole before swinging back south on to Majewsky land.

[31] Part 9 was purchased by the Majewskys for the laneway and is subject to the right of way over that laneway by Veveris owners.

[32] Within the year of purchasing the property, Christel Majewsky testified that they made a proper driveway/laneway from Highway 10 along Part 8 and 9. Before that, it was just a farmer’s track with long grass growing up through gravel. A photo of the new laneway taken some time in 1985 was identified. She testified that the laneway was never moved or changed.

[33] The Veverises purchased their land in 1988 and used the laneway, as established, to access their property.

[34] Mr. Veveris testified that he had always thought that the jog in the laneway encroached onto his land in that area but he did not mind as it provided more access to his land.

[35] Mr. Veveris testified that he gave permission to use this area of the laneway to Mr. Fohry. Christine Majewsky testified that she knew nothing of this grant of permission.

[36] I find Mr. Veveris’ evidence on this point to be odd. The laneway had been built and maintained by Mr. Fohry and Mrs. Majewsky. The Veverises enjoyed a right of way over the entire laneway and did not participate in its maintenance. Mr. Veveris admits the kindness of Mr. Fohry mowing an access path into his land. Mr. Veveris did not explain when or how this conversation occurred or the circumstances nor did he describe Mr. Fohry’s reaction. To suggest that once, on a visit of one to two hours one year, he told Mr. Fohry that he had permission to use that short area of the laneway where it encroached, suggests a discussion of boundaries.

[37] All the parties and all the evidence make it abundantly clear that boundaries were not discussed until after February 2008.

[38] I do not accept Mr. Veveris’ evidence that he gave permission to Mr. Fohry to use the portion of the laneway where it jogs to the north.

[39] Mr. Veveris agreed that he gave permission to Mr. Fohry to park vehicles on their property to discourage hunters trespassing on both their properties. The evidence of this permission does not suggest that Mr. Veveris was giving permission to use the encroached property however.

[40] Mr. Veveris argued that there was no proof that the prior owners, the Lejins, did not give permission for the use of this encroachment. The evidence I did have is that the Lejins resided in Saskatchewan, never attended the property from the time that Christel Majewsky bought the property in 1985, nor did they speak with her. There was not even an access road built until after 1988 when the Veverises purchased the land.

[41] Christel Majewsky stated that the Lejins did not grant permission.

[42] On the balance of probabilities, I find that it is more likely than not that the Lejins were unaware of the modest encroachment of the laneway, let alone have granted permission to use that portion of the laneway to Mrs. Majewsky or Mr. Lohry, who always thought it was on their own property.

[43] Mr. Veveris also argued that the laneway may have shifted over time onto his property. Mr. Majewsky testified that from 1985, there were no changes to the laneway’s course. In fact, he said it was impossible to change because of the lay of the land due to a “drop-off.”

[44] Mr. Majewsky said that over the years, he trimmed lower branches so that it was more visually appealing when driving along the laneway. He took out dead trees on the side of the laneway for safety. He plowed it and trimmed the grasses on either side of the laneway. There is no dispute that he and his stepfather before him, have taken care of all the maintenance of the entire laneway, including the area where it encroaches.

Dispute Regarding the Laneway Encroachment

[45] The defendants argued that the continuous use for twenty years had not been established. I find that there is compelling evidence that the roadway was in this position since 1985, a period of nearly twenty-eight years and was in that position when the defendants purchased the property in 1988.

[46] The defendants argued that he had given permission to Mr. Fohry. As noted above, I did not accept that evidence on the balance of probabilities. I concluded as well that the prior owners, the Lejins, did not grant permission to the encroachment either.

[47] The defendants argued that if this relief was granted, this would allow the plaintiff to dump snow into their driveway and obstruct their access. There was no evidence that this had ever occurred in the twenty-eight years of the Majewskys maintaining the roadway. The proposed order by the plaintiff states, “However, they shall not pile snow on the defendants’ lands or otherwise alter the defendants’ lands in any way which may tend to prohibit or impede the defendants’ access across their property.” Such wording will allay the defendants’ concern in this regard.

[48] The defendants argued that the three metres sought for the right of way to clear brush, plow snow and cut grass was excessive. They relied on the evidence of Christal Majewsky who said they needed three feet. However, it is clear that her late husband, Mr. Fohry, was the one who actually did this maintenance. Mr. Majewsky stated he required three metres to throw snow. As Mr. Majewsky is experienced in what is needed to plow in Grey County to reach his residence over the last eight years, I prefer his evidence.

Law on Prescriptive Right-of-Ways

[49] The Court of Appeal in Barbour v. Bailey, 2016 ONCA 98, 267 A.C.W.S. (3d) 463, sets out the essential characteristics of prescriptive easements at para. 56.

(i) There must be a dominant and servient tenement; (ii) The dominant and servient owners must be different persons; (iii) The easement must be capable of forming the subject matter of a grant; and (iv) The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement.

See Depew v. Wilkes, (2002), 60 O.R. (3d) 499 C.A. para 18-19; Ellenborough Park, Re (1955), [1955] 3 W.L.R. 892, at p. 140.

[50] There was no argument by the defendants that any of the above requirements was not satisfied in the circumstances of this case. The Majewskys have been the dominant tenements and the Veverises have been the servient tenements. They are different owners and different persons. The easement is capable of forming the subject matter of a grant.

[51] Courts have found what is “reasonably necessary” to have been practical purposes such as driveways. (Barbour, at para. 58, citing Depew). This is the case here.

[52] The plaintiff relies on a prescription by way of the doctrine of lost modern grant. This is clearly set out by the Court of Appeal in Kaminskas v. Storm, 2009 ONCA 318, 310 D.L.R. (4th) 549, at para 22:

The doctrine of lost modern grant, on the other hand, “is alive” and – as Cory J.A. noted, drily, in Henderson v. Volk (1982), 35 O.R. (2d) 379, [1982] O.J. No. 3138 (C.A.) at p. 382 O.R. – “if not well is at least surviving in the province of Ontario.” This doctrine was developed in common law jurisprudence to overcome the inconvenience of the common law rule (where the right could be defeated if it could be proven that the right claimed did not exist at any point in time within legal memory). Under the doctrine of lost modern grant, the courts will presume that there must have been a grant made sometime, but that the grant had been lost. Uninterrupted use as of right at any point in time will create the prescriptive right under this doctrine, provided it was for at least 20 years.

[53] At para. 23, the court further quotes Cory J.A.:

It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant,it does not have to be the 20-year period immediately preceding the bringing of an action.

[54] As well, the enjoyment must not be permissive. That is to say, it cannot be a use of the right-of-way enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established.

[55] In conclusion, I find this area where the laneway encroaches had existed with uninterrupted use for longer than 20 years without permission being granted and is necessary to access the plaintiff’s property and residence. I find it is reasonable to include the ability to clear brush, plow snow and cut grass up to 3 metres beyond laneway for maintenance purposes, provided such action does not impede the defendant’s access to their property.

Uncultivated or Improved Land

[56] The defendants rely on s. 5(4) of the Real Property Limitations Act, R.S.O. 1990, c. L.15, that the limitation period begins to run when the encroachment is discovered.

[57] This section, however, refers only to land granted by the Crown, which is not the case here and so is inapplicable.

THE HOUSE AND YARD

Evidence regarding the House and Yard

[58] South and west of the angled tree line in a large yard, house, and several out-buildings. The plaintiff seeks to establish a possessory title to this area for a period of ten years before the dispute arose (1997-2007).

[59] In 2008, the online search by the defendants and the survey they commissioned shows that the property line actually cuts off all of the yard and out-buildings and half of the current bungalow.

[60] Christel Majewsky purchased the property in 1984. It had a mobile home with an attached “add-a-room,” which was almost as big as the mobile home. Shortly after the purchase, she brought a trailer from Kincardine and set it up in the yard area with electricity hooked up to it. The plaintiff, Peter Majewsky, stayed in that trailer when he visited. The trailer remains there today but is generally used for storage. The yard up to the trailer and to the angled tree line is mown grass. There is no dispute that the Majewskys exercised use and maintenance of all of this area. The trees were trimmed, cleared and the area kept cleaned up.

[61] In the disputed yard area, there is a standing fuse box post and a sink with running water. At one time, Mr. Fohry had used it as a “fish washing station.”

[62] At purchase, behind the house to the west was a gardening shed, a wood shed and a trailer.

[63] Mr. Veveris’ evidence was that there was only one shed structure behind the house in 1988. The evidence is strong however, that at least since 1990, there was a garden shed, a wood shed and a workshop shed, and all had been in continuous use. Mrs. Majewsky said that behind the sheds and old trailer are the remains of a “half trailer.” She described various areas behind the house where “junk” had been stored. She pointed out a tall post where a motion detector light is located behind the house. A satellite dish is located beyond the out buildings.

[64] Mrs. Majewsky and Mr. Fohry regularly attended and used the mobile home and yard since their purchase in 1984. The defendants did not dispute this. The Veveris’ evidence was that each time they visited they would come in to the yard and go up the home to see Mrs. Majewsky or Mr. Fohry. At times they were not home; however, I find that the Veverises had multiple opportunities to view the use and occupation of these now disputed lands.

[65] In 1993 the mobile home burned down. Mrs. Majewsky and Mr. Fohry purchased a “Quality” bungalow to replace it and it became their permanent residence. Mr. Majewsky’s evidence was that the Quality home was built on the same footprint as the mobile home. The bungalow required an upgrade to the septic tank and septic bed. These were installed in the yard area on the now disputed lands.

[66] Mr. Veveris’ evidence was that, since he has now seen the 1990 aerial photograph of the mobile home, he believes that the orientation of the 1993 bungalow was different than the previous mobile home.

[67] The photographic evidence is not clear. Christel Majewsky and Mr. Majewsky both testified that the “Quality” home was placed on the same “footprint” as the original mobile home. Mr. Majewsky clarified that his mother chose the Quality home design because it had the same porch configuration that faced the pond and allowed for a view of both sunrise and sunset.

[68] In terms of the length of time that the bungalow was in place, over fourteen years before the time of dispute, whether there was a change in orientation of the house is irrelevant. There is no evidence to suggest that the prior mobile home was less of an encroachment than the Quality bungalow was that replaced it.

[69] As noted above, the Majewskys had always thought that they owned the land up to the tree line. Mr. Veveris argued that Mr. Fohry committed a fraud when he applied for various permits for building the bungalow, and getting the septic installed. I find, however, that the evidence supports a mutual mistake as to where the boundary lay. Mr. Veveris even testified that Mr. Fohry pointed to the tree line as being the boundary. I am unable to find a fraudulent intent on the part of Mr. Fohry in his seeking to obtain permits for property he thought he owned.

Law on Adverse Possession Claims

[70] Claims by way of adverse possession are barred by s. 51 of the Land Titles Act, R.S.O. 1990, c. L.5, once the lands are transferred into the Land Titles regime. There is no such bar in this case. These lands were transferred on May 25, 2009, and claims existing prior to date of transfer are preserved by s. 51(2) of the Land Titles Act.

[71] Pursuant to s. 4 of the Real Property Limitations Act, no claim for adverse possession can be made before ten years have passed.

[72] The Court of Appeal articulated the test for adverse possession in McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 252 A.C.W.S. (3d) 584, at para. 9-11:

[T]o establish adverse possession of certain lands, a claimant must demonstrate that throughout the ten-year adverse period, he or she: a) had actual possession of the lands in question; b) had the intention of excluding the true owner from possession; and c) effectively excluded the true owner from possession: Masidon Investments Lts. v Ham (1984), 45 O.R. (2d) 563 (C.A.) at p. 567.

An adverse possession claim will fail unless the claimant meets each of the three criteria, and time will begin to run against the true owner of the lands only from the last date when all three are satisfied”: Masidon, at p. 567.

To establish actual possession, the acts of possession must be “open, notorious, peaceful, adverse, exclusive, actual and continuous”: Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), at p. 221. “If any of these elements is missing at any time during the statutory ten-year period, the claim for possessory title will fail”: Teis, at p. 221.

See Pflug v. Collins, [1952] O.R. 519 (Ont. H.C.J.), aff’d , [1953] O.W.N. 140 (Ont. C.A.); Teis v. Ancaster (Town) (1997), 152 D.L.R. (4th) 304 (Ont. C.A.).

[73] Proving the intention of excluding the true owner from possession, the second of the three tests above, is unnecessary however when the parties have a mutual misunderstanding of whom the true owner was, as in this case. See Teis v. Ancaster (Town) (1997), 152 D.L.R. (4th) 304, at para. 23 (Ont. C.A.). See also Fazzari v. Pynn, 2013 ONSC 7743, 236 A.C.W.S. (3d) 224, at para.45.

[74] All of the evidence in this case supports that the Majewskys openly used, maintained, possessed, and occupied the house and yard area including their out-buildings. The Majewskys serviced the trailers and sheds with electricity. They installed a septic tank and septic bed in the yard. They installed a yard overhead light. They acted as the owners and possessors of the land as they thought they were.

[75] The plaintiff and the defendants were under the mistaken belief that it was Majewskys’ land until 2008.

[76] Mr. Veveris argued that it was not completely fenced in on all sides to establish it was exclusive to the Majewskys. I am not satisfied that this was necessary or required when all parties operated under the mistaken belief that it was Majewsky property.

[77] I am satisfied that the plaintiff has made out a claim for possessory title of the house and yard including the out-buildings.

Area of Possessory Title

[78] The Statement of Claim does not give a metes and bounds description of the area to be included in the house and yard possessory title. It referred to Schedules A and B, which were taken from the defendants’ survey showing the encroachments of the house and laneway but no other indication of what exactly what sought.

[79] The evidence supports that the possessory boundary line should run further northwesterly than it has previously to the identified poplar tree; turn southwesterly in a straight line through to the identified black cherry tree in the back yard; turn northwesterly again to the identified yard light to a point 15 feet beyond the yard light; then turn southwesterly in a parallel direction (the line between the poplar tree and the black cherry tree) to meet up with the existing boundary line.

[80] The plaintiff proposes that the property line include the poplar tree and be contained on the Majewsky side of the property, with the black cherry tree similarly contained on the Majewsky side of the property. I am satisfied that this is appropriate as they have done the maintenance of these trees. The property lines should therefore be drawn to allow two feet beyond the demarkated trees and yard light to allow such maintenance.

[81] The defendants argued that they were relying on the simple triangle sketched on the Schedules to the Statement of Claim and that they were taken by surprise at the area claimed. They have walked this area however, and have seen the occupied area over the decades. Mr. Veveris even gave evidence that there was only one shed behind the house in 1988 when he bought his property. There was no suggestion that the defendants did not explore the occupation of all the area at discovery and in documentary disclosure.

[82] I find that the defendants were attempting to restrict the plaintiff’s claim by a technical nicety which is unfair. The Statement of Claim is intended to set out the claims being made and does not require exact calculations. Actions should be heard on their merits and not unduly limited due to a technicality: see Sunrise International Travels Inc. v. Travel Industry Council of Ontario, 2015 ONSC 6466, 259 A.C.W.S. (3d) 266, at para. 23; Nejad v. Salehpoor, 2015 ONSC 6775, 260 A.C.W.S. (3d) 224, at para. 54; Bank of Montreal v. Vezina (2004), 136 A.C.W.S. (3d) 16 (Ont. S.C.), at para. 8.

[83] The principles surrounding pleadings in Ontario are well established by Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Parties must plead the material facts on which they rely, and they must specify the nature of the relief claimed: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 25.06. However, the purpose of these rules is to bind the parties to their pleadings in relation to the evidence that they lead at trial: see Davie v. New Merton Board Mills Ltd., [1956] 1 W.L.R. 233 (Q.B.); Severin v. Vroom (1977), 15 O.R. (2d) 636 (Ont. C.A.).

[84] In this case, the defendants were well aware of the scope of the area for which the plaintiff was making an adverse possessory claim. Rule 26.01 provides that the court has a broad power to grant leave to amend a pleading at any stage of an action, including after a trial has concluded: see B. (M.) v. 2014052 Ontario Ltd., 2012 ONCA 135, 109 O.R. (3d) 351. However, where, as in this case, the pleading was clearly contemplated by the parties based on the evidence adduced at trial, and an amendment would have no ultimate effect on the outcome of the case, it will not be necessary to actually make the amendment to order the relief sought: see Sigrist v. McLean, 2011 ONSC 7114, 211 A.C.W.S. (3d) 239, at para. 79.

[85] I note in fact that the evidence supports the potential of establishing an adverse possessory claim for a larger area than the plaintiff has ultimately claimed. I find that the plaintiff has reasonably confined the demand to the serviced house, yard and outbuildings.

CEDAR TRAIL

Evidence Regarding The Cedar Trail

[86] To the west of the yard light is the beginning of a path to the wood lot on the Majewsky property. Due south of the Majewsky bungalow is a large pond. The wood lot is on the far side of the pond.

[87] Aerial photographs show that the path is double lined with cedar trees and commences slightly to the north and west of the yard light in the back yard. It runs in an arcing way to the west and south where it crosses with the actual Majewsky boundary line and continues south to the woodlot.

[88] Once the angled tree line was found not to be the boundary line on title, it was clear that the double cedar-lined pathway was established on Veveris’ land for some distance.

[89] The plaintiff seeks a prescriptive right for the continued use and maintenance of a cedar-lined pathway as a permanent right-of-way.

[90] The evidence by Christel Majewsky and the plaintiff Peter Majewsky as to where the property line turned southerly from the tree line was vague. Both appeared to have an awareness that the angled boundary line on the 1969 survey turned south at some point. They each gestured vaguely to a point in the distant scrub land as to where their property may have ended. This is not necessarily surprising when there are no monuments, trees or other markers in an area described. Had the tree line been the boundary as they had thought, for some distance and then turned south, the cedar trail would have been on their land.

[91] The cedar trail has only been used by the Majewskys. The Viverises did not use it as they did not even know of its existence until after 2010 when this litigation began.

[92] The previously titled owners to the Viveris land were the Lejins. As noted, they were resident in Saskatchewan and as far as the witnesses knew, had not visited the properties since 1984. The evidence by the plaintiff’s witnesses is that the Lejins did not grant permission. On the balance of probabilities, I find the Lejins did not use this area or know about or give permission to use the area.

[93] Mr. Veveris testified that he gave permission to Mr. Fohry and to the plaintiff Mr. Majewsky to go on his land. I find that this was general neighbourliness of welcome and not the permission that negates a claim for a prescriptive easement. Mr. Veveris confirmed that he was grateful to Mr. Fohry coming on to his land to mow an access laneway, and to Mr. Majewksy for checking and discouraging hunters from trespassing. It is clear that Mr. Veveris had never explored the southern boundary of his property and so, never became aware of the cedar path. I therefore find that he did not give permission to use it.

[94] The evidence supports that the pathway to the woodlot was in use since at least 1985 after Christel Majewsky purchased the property. Her spouse, Mr. Fohry, began planting the cedars to line the path as early as 1986. He took cedars from the woodlot and planted them along the trail. He built small benches along the path as well.

[95] Mr. Veveris cross-examined Christel Majewsky and she agreed that the cedars lining the cedar trail, which she said Mr. Fohry planted over the decades, were not visible in the aerial photographs of 1990 and 1995. Mr. Veveris pointed out that all that could be confirmed was that there was a mown path there. A 2007 aerial photo showed a faint dotted line in the area, which I find consistent with a trail of trees.

[96] The evidence of Christel and Mr. Majewsky was that Mr. Fohry planted small trees of approximately a foot tall over a number of years.

[97] Although these young cedars do not show as dots on the old aerial photos, I do not find they contradict the evidence that the trees were first planted beginning in the late 1980s. Photos in 2010 show very tall, very mature trees; consistent with them being there for years.

[98] After Christal Majewsky had testified and left the court, Mr. Veveris wished to read into the record that on discovery, Mrs. Majewsky stated that they did not plant any cedars on the property. Mr. Majewsky, by way of explanation, stated that she was saying they did not purchase cedars. The cedars were taken from the woodlot by Mr. Fohry and transplanted to the cedar trail. I consider this to be a reasonable explanation as the trees are certainly in existence today.

[99] From 1985 to 1993, the cedar trail’s use was weekend use, winter and summer, consistent with the property being used as a vacation property. This satisfies the “continuous” use requirement consistent with a vacation property. From 1993 when the land was occupied as a permanent residence, its use became even more frequent.

[100] Mr. Majewsky sought the right-of-way for this area in part to maintain “control of the hill” above the pond. He advised he was concerned about erosion into the pond. He described a forty to fifty foot drop off of land to the pond. He advised that he had pond and erosion studies done. None of these, however, was put into evidence.

[101] The cedar trail pathway was used to reach the lower woodlot of their property. They used this trail to access it to clear out wood. Mr. Majewsky stated they used this path to harvest wood on two occasions. He planned and hoped to do so in the future. He stated it was the direct path to the woodlot. His evidence was that this trail was the most practical route for their access. It takes a quarter of the time to reach the woodlot as it would to travel southeast around the pond.

[102] The woodlot was also used for hikes and walks. When Mr. Lohry was alive, he ran a Legion event each February, which involved members scavenging through the woodlot in search of little liquor bottles.

[103] Mr. Fohry would mow the trail on occasion and later, Mr. Majewsky said he did the same. Since 2000, Mr. Majewsky testified that he and Ms. Lizotte began to prune the cedars.

[104] Since 1985, there has been continuous, uninterrupted, open and peaceful use and maintenance of the path. This is more than twenty years before the time of the boundary dispute arose in 2008.

Law and Analysis On Prescriptive Right-of-Ways

[105] The law applicable to the cedar trail is as set out in paras. 49-55 above.

[106] I note that seasonal use can satisfy the requirements depending on the type of property. In Barbour v. Bailey the court stated at para. 83:

The acts necessary to establish continuous use depend on the type of property. For some types of property, such as a cottage property, as in this case, seasonal and weekend use is consistent with the type of continuous use an owner would make of the property and therefore satisfies the criterion of continuous use; Lanty v. Ontario (Minister of Natural Resources) (2006), 89 L.C.R. 161 (Ont. S.C.) at para 109, aff’d 2007 ONCA 759, 61 R.P.R. (4th)161. See also Teis, at p. 222.

[107] The Majewskys have been the dominant tenements and the Veverises have been the servient tenements. They are different owners and different persons. The easement is capable of forming the subject matter of a grant. The final consideration is whether the easement is reasonably necessary to the better enjoyment of the dominant tenement, Mr. Majewsky.

[108] As stated in paragraphs 57-59 in Barbour v. Bailey, “[w]ith respect to the fourth criterion, what is ‘reasonably necessary’ will depend on the nature of the property and the purpose of the easement.”

In Depew v. Wilkes, at para. 24, this court confirmed that the reasonable necessity requirement for a prescriptive easement is fact-specific and must be applied in a flexible manner, citing with approval the following instructive passage from Anger and Honsberger: Law of Real Property, 2nd ed. (Aurora: Canada Law Book, 1985), at p. 927:

What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow.

However, not every use will be “reasonably necessary” for the purposes of establishing a right to an easement. There must be a connection between the easement and the normal enjoyment of the dominant tenement, as opposed to a personal right belonging to the dominant tenement owner: Depew v. Wilkes, at para. 20. Examples of uses that courts have found to be “reasonably necessary” usually involve a very practical purpose, such as parking spaces or driveways: see e.g. Depew v. Wilkes: and Carlini Estate v. Hammoud, 2011 ONCA 285.

This is reinforced by the fact that in order to be capable of forming the subject matter of a grant (the third criterion listed above), easement rights must not be ones of mere recreation and amusement; the rights in issue must be utility and benefit to the dominant tenement: see In re Ellenborough Park, [1956] 1 Ch. 131 (Eng. C.A.), at pp. 175-76, cited with approval by this court in Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para 204.

[109] The use to which the Cedar Trail was put was both for recreation in a country property and wood-gathering. It was not just for amusement but also for utility and benefit to the Majewskys.

[110] The fact that an alternate route to the woodlot existed on title for their use around to the south east does not preclude that their use of the cedar trail on the disputed area remains reasonably necessary for the better use and enjoyment of their property. In this case the cedar trail is the direct route. It is well maintained and a great deal shorter than around the pond to the southeast.

[111] I am satisfied that the plaintiff, through his mother and Mr. Fohry, has made out factually an entitlement to a prescriptive easement for the area of the cedar trail where it runs along the defendants’ property. The use may continue specifically for the purpose of harvesting and transporting wood from the woodlot.

[112] A surveyor will be required to locate the most easterly commencement of the path and where it logically meets the western boundary of the yard as I have established it above (the point fifteen feet past the yard light) and then trace its path down to the actual Majewsky property line.

Area of Cedar Trail Right-Of-Way

[113] As above, the defendants suggested that the plaintiff be confined to the triangle shown on Schedule B of the statement of claim as a hatched area. It appears that the cedar trail is actually located outside that hatched area, and so he suggested that the claim therefore failed.

[114] The pleading in the statement of claim refers to what is “described below and generally depicted in Schedule B.” In the claim, it was described as a path to the pond that was kept mowed and improved by planting rows of cedars.

[115] I will not dismiss the claim on such a technicality.

[116] As noted above, the defendants attended the property and saw the location of the cedar pathway. It is depicted in several photographs including aerial shots. I do not find that the defendants have been taken unawares of what is being claimed.

[117] The plaintiff was appropriately bound by their pleadings in the evidence that they adduced at trial. The evidence supports a finding that the defendants were well aware of the location of the cedar trial and the right-of-way that the plaintiff was claiming.

CONCLUSION

[118] On the evidence as found and the applicable law, I find the plaintiff has succeeded on his claims for possessory title to the house and yard, the prescriptive right to the driveway encroachment, and the prescriptive right to the use of the cedar trail, as follows:

[119] THIS COURT DECLARES that the plaintiff, along with the current co-owner of the subject property, have a prescriptive right respecting any encroachment by their driveway onto the defendants' lands, resulting in a permanent right of way for the continued use, operation, and maintenance of the said driveway to the extent of the current encroachment. As a component of this permanent right of way, the owners of the plaintiff’s property shall be entitled to clear brush, plow snow and cut grass a distance of three (3) metres beyond the current edge of the driveway onto the defendants' lands, however they shall not pile snow on the defendants' lands or otherwise alter the defendants' lands in any way which may tend to prohibit or impede the defendants' access across their property.

[120] THIS COURT FURTHER DECLARES that the plaintiff, along with the current co-owner, have possessory title to those lands contained by or occupied by their house and yard area, as more particularly described in paragraph 122 below, and that any of the defendants' claims to or interest in the said lands are hereby barred and any title in the said lands extinguished;

[121] THIS COURT FURTHER DECLARES that the plaintiff, along with the current co-owner, have a prescriptive right respecting the continued use and maintenance of a cedar-lined pathway which crosses the defendants' lands as more particularly described in paragraph 125 of this judgment, resulting in a permanent right of way for the continued use, operation and maintenance of the path and the cedars lining it, including use of the path for the purposes of harvesting and transporting wood from the woodlot situate on the plaintiff’s lands and for the purposes of general passage by the plaintiff or any invited guests;

[122] For the purposes of possessory title of this judgment, this Court orders that a Reference Plan be prepared and be registered on title to the subject properties. Such Reference Plan shall detail a new property boundary between the plaintiff’s lands and the defendants' lands along the following coordinates.

a) Commencing first at the intersection of Parts 6, 7, and 9 as shown and contained on Plan R139 (dated June 12, 1969), thence continuing in a straight line generally in a west-northwesterly direction to a point two (2) feet to the north of and two (2) feet beyond the Lombardi poplar tree identified as "POP" in Exhibit 24 to these proceedings. For greater certainty, the Lombardi poplar itself shall be contained on the plaintiff's side of the new boundary line.

b) From the point above, then continuing in a straight line generally in a southwesterly direction to a point two (2) feet to the west of the black cherry tree identified as "BC" in Exhibit 24 to these proceedings. For greater certainty, the black cherry shall be contained on the plaintiff's side of the new boundary line.

c) From the point above, then continuing in a straight line generally in a northwesterly direction on a tangent passing two (2) feet to the north of the yard light identified as "YL" in Exhibit 24 to these proceedings, to a point fifteen (15) feet beyond the said yard light;

d) From the point above, then continuing in a direction parallel that described in paragraph 122(b) above (being the line from the poplar to the black cherry) until intersecting with the existing boundary line described in the Plan of Survey showing various encroachments on Part 7, Plan R-139 (such plan of survey being dated August 18, 2008 and entered as Exhibit 7 in these proceedings).

[123] This Court further orders that, as a part of the preparation of the Reference Plan in paragraph 122 above, the full remaining boundary line running in a general west-southwesterly direction between the parties' properties be resurveyed and confirmed.

[124] This Court further orders that, as a part of the preparation of the Reference Plan in paragraph 122 above, the full remaining boundary line running in a general west-southwesterly direction between the parties' properties be resurveyed and confirmed.

[125] For the purposes of paragraphs 119 and 121 above, this court orders that a Reference Plan be prepared and be registered on title to the subject properties. In regards to describing the right of way on and over the cedar-lined pathway, such Reference Plan shall indicate that the pathway leaves the new property boundary at the point fifteen feet past the yard light (described at paragraph 122(c) above), then commencing directly to first of the planted cedars, and then continuing the same course as the cedar-lined pathway (in a roughly westerly but meandering fashion) until that path intersects with the property boundary (being the resurveyed line referenced at paragraph 123 of this Judgment).

[126] All parties shall grant any retained surveyors access to their properties for the purposes of the preparation of the Reference Plan or Reference Plans. The surveyors shall be directed by the parties to set permanent markers at the new boundary points identified in paragraph 122 of this Judgment, as well along the resurveyed boundary line referenced in paragraph 123, including at a point where that boundary most closely approaches the northern edge of the pond situated on the plaintiff’s lands.

[127] Once the above Reference Plans are duly prepared and registered, a Vesting Order shall issue vesting ownership in the lands described in paragraph 122 in the plaintiff, along with the current co-owner, and confirming their prescriptive easements respecting the driveway and the cedar-lined pathway. The parties shall execute such documents as may be necessary and shall otherwise cooperate in a timely manner in regards to facilitating the preparation and registration of the new property boundaries and rights of way in the Land Titles register to the subject properties.

[128] As the boundary differences are due to a mutual mistake, the cost of the reference is to be shared equally between the parties.

COSTS

[129] If the parties cannot agree on costs, the plaintiff may make written submissions as to costs within 14 days of the release of these reasons for decision. The defendants have 14 days after receipt of the plaintiff’s submissions to respond. The submissions shall be no more than five pages, double-spaced, in addition to any pertinent offers, case law, and draft bills of costs. All such written submissions are to be forwarded to me at my chambers at 7755 Hurontario Street, Brampton, Ontario, L6W 4T6.

[130] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

M. J. Donohue, J Released: October 11, 2016