Court File and Parties

COURT FILE NO.: CV13-0561 DATE: April 7, 2017

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: GORDON WHITE and MARY MAGWOOD Plaintiffs/ Defendants by Counterclaim – and – BORDEN CURTIS and JANA CURTIS Defendants/ Plaintiffs by Counterclaim

Counsel: John Melia, for the Plaintiffs/Defendants by Counterclaim Neville Johnston, for the Defendants/Plaintiffs by Counterclaim

REASONS FOR DECISION

ABRAMS, J

Overview

[1] This case focused primarily on land owned by the Defendants known as Part 6, as referenced on Plan 28R13795, marked as Exhibit A5. At issue is the nature and extent of the “right-of-way” described on the Plaintiffs’ Transfer/Deed of Land Certificate of Registration No. 211631 (LR211631) over, inter alia, Part 6 to the “north shore of Upper Beverly Lake”.

[2] The Plaintiffs contend that they have an express right-of-way over a portion of the Defendants’ property including, but not limited to, Part 6. Notably, the Plaintiffs abandoned, at the conclusion of the trial, their claim in the alternative to a prescriptive easement over the same portion of the Defendants’ property.

[3] The Defendants deny that the Plaintiffs are entitled to a right-of-way across the Defendants’ property, specifically Part 6. Rather, the Defendants assert that the “right” referred to in instrument #LR211631 is a personal licence only, notwithstanding the reference to a “right-of-way”. Further, the Defendants contend that the “right” enjoyed by the Plaintiffs is for vehicular access over the strip, which by benefit of Plan 28R13795 is now known as Parts 2, 5 and 8, and for access by foot over Part 6 to the “north shore of Upper Beverly Lake”.

Historical Context

[4] The parties, Gordon White and Borden Curtis, were childhood neighbours and friends. They grew up on abutting farms situated along the Daytown Road, outside of the village of Delta, Ontario. Their neighbouring homesteads bordered on Upper Beverly Lake.

[5] The Curtis farm is divided by the Daytown Road. Part of the farming operation is carried on to the north of the Daytown Road, and part to the south, running down towards the north shore of Upper Beverly Lake. It continues to be an operating dairy farm today.

[6] Elton Curtis was the patriarch of the Curtis family and owner of the Curtis farm in toto, prior to certain transfers being undertaken that are relevant to the issues in dispute.

707 Daytown Road

[7] Elton Curtis transferred a lot off the farm situated on the north side of the Daytown Road, municipally known as 707 Daytown Road, to Annie Mendelson on November 24, 1977, by Registration of Grant #94570, marked as Exhibit B3. For greater clarity, the lot appears in the middle of the page marked as Exhibit B4 (approximately), referenced as “PL28R2287 05606502”.

[8] Annie Mendelson had a home built on the lot that, based on the evidence of Maurice Curtis, she never occupied. Rather, she transferred to George and Shirley Wilson by Registration of Grant #100040 on July 10, 1978, as referenced in Exhibit B18.

[9] The Wilsons transferred to the Plaintiffs by Transfer/Deed of Land Certificate of Registration No. 211631 (LR211631) on August 3, 1990, as referenced in Exhibit A3. The Plaintiffs continue to reside at 707 Daytown Road.

[10] There is no quarrel that the right-of-way asserted by the Plaintiffs over the defendants’ lands is not contiguous to 707 Daytown Road.

Part 6 and 153 Curtis Lane

[11] Elton Curtis had five sons: Borden, Maurice, John, Ernest and Vernon. Elton transferred the homestead to Ernest and Darlene Curtis, which included Part 6, Plan 28R13795, on December 5, 1984, by Registration of Grant #151734, referenced in Exhibits A1 and B17.

[12] The Defendants purchased from Paul and Wilma Adams the property known municipally as 153 Curtis Lane by Transfer/Deed of Land Certificate of Registration No. 0314653 on September 11, 2001, as referenced in Exhibits A4 and B16. This property had earlier been carved out of the homestead; 153 Curtis Lane abuts Part 6, Plan 28R13795, to the east.

[13] Thereafter, Ernest and Darlene Curtis transferred to the Defendants by Registration of Transfer #LE41036 lands which included Part 6, Plan 28R13795, on October 26, 2011, as referenced in Exhibits A6 and B17, thus making the Defendants the owners of both 153 Curtis Lane and Part 6, Plan 28R13795.

The “Right-of-Way”

[14] In accordance with the transfer from Elton Curtis to Annie Mendelson (Exhibit B3), dated November 24, 1977, the Registration of Grant reads, inter alia:

TOGETHER WITH a right-of-way in common with others entitled thereto as a means of vehicular access from the south side of the forced road shown on the said plan at a point about opposite the above described parcel over and along a strip of land presently used as a roadway crossing Lots 19 and 20 in the Ninth Concession of the said Township owned by the Grantor and continuing southerly to the north shore of Upper Beverly Lake.

[15] It is not disputed that the same wording relevant to the right-of-way is repeated verbatim in the transfer to the Wilsons from Mendelson, and from the Wilsons to the Plaintiffs. Rather, the question is: What was the intention of the parties in relation to the original transfer from Elton Curtis to Annie Mendelson? As our Supreme Court said in Laurie v. Winch, [1953] 1 S.C.R. 49, in adopting Lord Wensleydale in Waterpark v. Fennell (1859) 7 H.L.C. 650 at p.683:

The construction of a deed is always for the Court; but, in order to apply its provisions, evidence is in every case admissible of all material facts existing at the time of the execution of the deed, so as to place the Court in the situation of the grantor.

Evidence

Plaintiffs

[16] To recall, Gordon White and Borden Curtis were boyhood friends and neighbours. In my view, had they been left to sort these issues out between themselves, quite likely there was enough of a history of friendship and neighborliness that they could have resolved matters in an amicable way. Regrettably, that was not to be.

[17] Robert White is the Plaintiffs’ son. He never lived at 707 Daytown Road, although he visits from time to time. The longest that he ever stayed for a visit was in 1993 when he was working towards his Chartered Accountant’s examinations.

[18] He also visited his grandfather’s farm when he was a child, the farm abutting the Curtis farm. He testified that he had crossed Part 6 as a boy during the wintertime to access Upper Beverly Lake. Further, once his parents acquired 707 Daytown Road, he used Part 6 in the 1990’s to access the lake during the winter months.

[19] The next time that he was on Part 6 was in March of 2012 when he took his wife and children there in their minivan. By his own admission, Robert White went there because Gordon White said that his access to Part 6 had been obstructed. Unfortunately, this resulted in a confrontation with Borden Curtis’s brother, John Curtis, who is now deceased.

[20] There is no question that John Curtis pulled his ATV up behind Robert White’s vehicle such that Robert White could not back out of Part 6. The photographs filed as exhibits make this much clear. In my view, however, not much turns on any of this, other than the confrontation brought matters to a head between the parties. I say that not much turns on it because neither Robert White nor his wife and children are parties to this action. Moreover, there was no evidence to suggest that John Curtis was directed by the Defendants to take the action that did. Finally, the delay caused by John Curtis was transitory and was, in my view, caused as much by Robert White calling the Ontario Provincial Police to attend at the scene, which they did.

[21] Robert White produced a series of photographs marked as Exhibits C1-8 that were taken during the summer of 2012, showing items such as rocks and a culvert that were placed by the Defendants on the west side of Part 6 to prevent his father from parking on the west side, as he contended.

[22] Robert White produced another series of photographs marked collectively as Exhibit A17 showing a variety of activities occurring on Part 6 dating back to the 1950’s, all of which, in my view, as accurately and reasonably explained by other witnesses, particularly Maurice Curtis.

[23] Robert White conceded during cross-examination that he was only at his parents’ home for a week in 1993, that being the longest period of time that he had stayed for a visit. Moreover, he did not use Part 6 at any time during that visit.

[24] Robert White clarified in cross-examination that while he did use Part 6 on occasion to access the lake, he also accessed the lake from his grandfather’s farm next door. It was simply more passable to go onto the lake from Part 6 because there were fewer snowdrifts than at the point on his grandfather’s farm where he accessed the lake.

[25] There were “some occasions” when he fished from the shoreline of Part 6 with his father and grandfather during the summer months. These occasions were, however, prior to his father and mother purchasing 707 Daytown Road in 1990.

[26] Robert White agreed during cross-examination that there is another access point to the lake on the boundary line between the Curtis and White farms, as Maurice Curtis later confirmed in his evidence.

[27] Robert White could not remember a time when the road leading down to Part 6 was not gravelled. However, he agreed that there is a distinct difference between the travelled portion of the road and Part 6, in terms of their respective conditions.

[28] Robert White conceded that he had seen cattle in the area of Part 6, but had never seen cattle on Part 6.

[29] Robert White could not recall there being any appreciable changes to Part 6 over the years. This evidence stands in stark contrast to the evidence of virtually every other witness who testified to the improvements made to Part 6 in or about 1995 when it was raised up considerably, and ditches were added to the east and west sides.

[30] Robert White estimated that Part 6 is 40 feet wide by 140 feet long, and that by his interpretation of the wording of the right-of-way, his father is entitled to park anywhere on Part 6. That said, he conceded that he had seen his father park on the west side, next to Leonard Vincent’s gate.

[31] Robert White confirmed that there had been two previous cases involving boundary disputes with the Curtis family, which would tend to explain the animus that exists between the two families.

[32] Elizabeth Cole has known the parties for approximately 40 years. She is from Delta, but is only “vaguely familiar” with Upper Beverly Lake.

[33] She was, however, familiar with the “right-of-way” as a place where locals went to go ice fishing. She also recalled using the “right-of-way” in or about 1990 with Fred Cole, who she was dating and later married. She recalled that Fred Cole kept his boat at the “right-of-way” during the winter months, until about 1994 when he no longer stored it there. She could not recall how the boat was stored, whether it was on or off a trailer, nor could she recall where they would launch the boat. She did recall, however, that they would not drive to the shoreline in the truck. Rather, they would park the truck and walk in to the boat. This evidence is consistent with Maurice Curtis’s recollection that Fred Cole, a friend and family member by marriage, became somewhat of a nuisance to Elton Curtis when Fred Cole would attempt to drive onto Part 6, only to get stuck and have to be towed out with a tractor. Indeed, Fred Cole became enough of a nuisance that Elton Curtis began to charge him $20.00 per tow, which ended Fred Cole’s attempts to park on Part 6.

[34] Apart from those times when she was there with Fred Cole, Elizabeth Cole could not say what, if any, other activities were happening on Part 6. At most, she would have gone to Part 6 ten times over a four year period with Fred Cole. She could never recall her husband ice fishing there.

[35] Leonard Vincent was a brother-in-law to John Curtis (deceased). Leonard Vincent resides at 159 Curtis Lane, which abuts Part 6 to the west, as identified on Exhibit A5.

[36] Leonard Vincent purchased the property in 1975 and used it as a seasonal residence/rental property until 1987, when he moved into it on a permanent basis. He did not use the property during the winter months from 1975 to 1987.

[37] Leonard Vincent recalled using Part 6 to store a boat along the fence line and to fish from in the springtime for “bullheads and crappies”. He would also duck hunt from there in the fall. As he said, it was an “easy slip to pull a boat in”… “it was weedy and shallow”.

[38] Leonard Vincent has lived on a permanent basis at 159 Curtis Lane from 1987 until the present. His Transfer/Deed of Land Certificate of Registration No. 179153 was entered as Exhibit “E”. He confessed that he did not understand what the “right-of-way” referred to on p.2 of the document meant, other than that he requires access over this “cottage road”, as he described it, as it leads to his place and others, meaning those who also live along the “right-of-way”.

[39] With reference to Part 6, Leonard Vincent testified that he understood it (Part 6) to be part of the farm and that people used it (Part 6) to “put their boats in”. He then clarified this by saying that, between 1975 and 1987, John Curtis and “some of his cottagers put boats in there”. He also testified that he would “sometimes” put a boat in there (at Part 6); he stored the boat next to a tree, would catch frogs and go fishing there.

[40] There were also occasions during the winter months when he would see local people who were known to him, including Gordon White, access Upper Beverly Lake from Part 6.

[41] With reference to Exhibit A14, photograph 4, Leonard Vincent testified that there was an abandoned hard-top camping trailer on Part 6 when he purchased his property in 1975, located next to the line fence, and that Elton Curtis moved it to the location seen in the photograph. Thus, he believed that Elton Curtis owned the trailer. Maurice Curtis later confirmed that his father moved the trailer in an attempt to block individuals from parking on Part 6, Fred Cole being one of those individuals.

[42] Leonard Vincent testified that he never discussed his use of Part 6 with the Curtis family because “John Curtis was my brother-in-law and I assumed that I had a right to use it” (Part 6).

[43] Leonard Vincent testified that the only people who he saw use Part 6 to access Upper Beverly Lake prior to 1989 to go ice fishing were Gordon and Ron White. It was only in 1989 that the right-of-way was plowed in the winter, however, he could not identify any individuals who may have used the right-of-way from 1989 onward to access Part 6 to go ice fishing.

[44] Leonard Vincent testified that, prior to the right-of-way being improved, he could not drive into his property from the Daytown Road during the winter and spring months. Rather, he would park his vehicle along the Daytown Road and walk in. Leonard Vincent could recall a specific section of the right-of-way next to Part 6 that was particularly susceptible to flooding. As he put it, the flooding was not simply caused by spring runoff. There was an area on the north side of the right-of-way where there was “an active spring”, near Part 6.

[45] Leonard Vincent testified that cattle came down onto Part 6 to water at the lake, as part of the farming operation. The cattle were on Part 6 often enough that he had to install a “Texas gate” to keep them off his property. However, the cattle were persistent enough that they would enter onto his property from the lake side of Part 6, by going around end of the line fence, and they would “destroy his flower beds”. He solved the problem by running an electric fence out into the lake, which deterred the cattle.

[46] Leonard Vincent confirmed during cross-examination that Part 6 was susceptible to flooding because of the number of “springs all over that land”.

[47] Leonard Vincent also confirmed that Elton Curtis had retained Part 6 as part of the farm when he severed off the lots along what is now called Curtis Lane so that he could water the cattle “during the dry months of June, July and August”. As he explained, Elton Curtis would drive the cattle down to the water during the daytime, and then drive them back across the Daytown Road at night to the barn. Leonard Vincent testified that “right up to 3 to 4 years ago it was not unusual to find cattle on Part 6…20 to 30 in a herd”.

[48] Leonard Vincent described how John Curtis had improved Part 6 in the 1990’s by raising it up approximately 6-8 inches with “several truckloads of stone” that were excavated from the nearby lot where he was building a home. He also confirmed that ditching on both sides of Part 6 was done at the same time, which included the addition of a culvert on the west side, next to his property.

[49] Leonard Vincent agreed that, when the right-of-way began to be plowed, snow was pushed onto Part 6.

[50] Leonard Vincent confirmed that Gordon White would park on Vincent’s property, with Vincent’s permission.

[51] Leonard Vincent explained that he, Fred Cole and John Curtis had all married sisters. Thus, he and Fred Cole were related to John Curtis by marriage. In those circumstances, he assumed that he did not have to ask the Curtis family for permission to use Part 6.

[52] Leonard Vincent clarified that before 1989, he would sometimes park on the Daytown Road and walk into his property, depending on how much snow there was during the winter months. He said, “I did that for about 2 years”, recalling that he moved to his property on a fulltime basis in 1987.

[53] William Carbino is a lifelong resident of Delta. Likewise, he has known the parties, Borden Curtis and Gordon White, all of his life.

[54] William Carbino began using Part 6 in the 1970’s to access Upper Beverly Lake for ice fishing, when Elton Curtis owned the farm. He only used this access point for ice fishing as it was, in his estimation, the easiest way to drive onto the lake with a snowmobile or an ATV. He never thought to ask permission to use the right-of-way or Part 6 to access the lake.

[55] William Carbino clarified, however, that Part 6 was not historically the only access to Upper Beverly Lake. There was access at “Craig Gifford’s” residence, about three miles “up the road”. As well, a government boat ramp was built in the 90’s that he now uses.

[56] William Carbino never saw anything being stored on Part 6 during the winter months when he was accessing it to go ice fishing.

[57] William Carbino confirmed during cross-examination that he was a childhood friend of the Curtis boys. He went to school with them. He was particularly close with Borden and Ernie. As he said, “we were friends and no one objected to us using it”.

[58] William Carbino was aware that Ernie had taken over the farm, and thus was the owner of Part 6, by the time that Elton Curtis passed on. He was not aware of the improvements that were made to Part 6, which would correspond with his use being restricted to the winter months.

[59] With reference to the Offer of Purchase and Sale marked as Exhibit A2, Mary Magwood testified that the importance of the right-of-way to her was the “easy walkable access to the water from our home”. (emphasis added).

[60] With reference to Exhibit B20, Mary Magwood testified that she understood the “dotted line” (marked as the deeded right-of-way) to be “the right-of-way to the lake…I consider it (the dotted line) to be continuous”.

[61] From 1990, following the purchase of 707 Daytown Road, until 2010, Mary Magwood testified that she used the right-of-way to walk to the lake over Part 6, in all seasons. In 2010, she said that the Curtis’s made it clear that “we were not welcome on their land”. She did not return to the right-of-way until March of 2012 when their son, Robert White, had the confrontation with John Curtis, as earlier described. They returned on a subsequent occasion to find “No Trespassing” signs posted and a rope barrier erected across Part 6. She also saw and took photographs of features on Part 6 that she believed to be recent additions, specifically: installed culverts and large pieces of cement or stones. In reality, the culverts dated to the time of the improvements to Part 6 in the 1990’s.

[62] Mary Magwood testified that she would like to be able to walk down the right-of-way and over Part 6 to the water.

[63] Mary Magwood testified that she had never seen cows on Part 6 on those occasions when she had walked to the water. In addition to walking to the water, Mary Magwood would like to have the option of launching a kayak from Part 6, although admittedly this is not something that she has ever done in the past.

[64] Mary Magwood confirmed in cross-examination that she stopped walking to the lake in 2010 “because of escalating problems with the Curtis family”. She has not walked to the lake since, nor has she made use of the right-of-way.

[65] Although she testified in-chief to walking in “all seasons”, she clarified in cross-examination that she did not walk down the right-of-way in the winter months when it was “inaccessible by snow”. Neither did she walk down the right-of-way “in high season when it was hot and there were horse flies”.

[66] Mary Magwood could never remember Part 6 being muddy when she walked to the edge of the lake in the early 1990’s, which would pre-date the improvements that were made to raise up the level of Part 6. However, she conceded that it may have been muddy at times other than when she had walked there. As she put it, “I will allow that it could have been muddy, but I don’t recall seeing it”.

[67] Gordon White grew up on the family farm on the Daytown Road. He lived away from the area for approximately 15 years before returning, following the purchase of 707 Daytown Road in 1990.

[68] Gordon White described being “great friends” with the Curtis family while growing up. They went bullhead fishing in the spring by accessing Upper Beverley Lake at Part 6. They rode their bicycles down the right-of-way, and later, when what was originally the farm lane was improved, they began to drive cars down the right-of-way. During the 15 years that he was living away, he would come home on weekends and, on the odd occasion, he went ice fishing with the “hired man” by accessing Upper Beverly Lake from Part 6.

[69] Gordon White admitted that he never asked permission to use the right-of-way or Part 6 prior to purchasing 707 Daytown Road because, “it was a given, I guess”. This continued after purchasing 707 Daytown Road in 1990. As he testified, “We just naturally used it (the right-of-way)…I didn’t even know that I needed a right-of-way…We always called it going back to the Curtis’s fishing”.

[70] Gordon White clarified that he was “never back there (Part 6) in the summertime, that’s when the cattle would be there”. Rather, his use was in relation to ice fishing. On those occasions when he would drive a pick-up truck down the right-of-way to go ice fishing, he would park on Part 6, on the “right hand side near the ditch”, if it was accessible. Alternatively, he would park on Leonard Vincent’s property with the nose of his vehicle on the culvert, on the west side of Part 6.

[71] Gordon White testified that he went ice fishing in February, 2012, when he parked with the back wheels of his vehicle on Leonard Vincent’s property and the front wheels on the west side culvert of Part 6. However, he could not use Part 6 as a drive through of sorts, as he had done in the past, because someone had placed stones or large pieces of cement on Part 6 to prohibit driving from Leonard Vincent’s property onto Part 6, and then back out onto the right-of-way. Gordon White never raised this restriction with the Curtis’s. Rather, it was not until Robert White went to Part 6 in March of 2012 that matters came to a head. As Gordon White testified, “Borden and I were always good friends…I didn’t want to escalate it…I didn’t go back until the incident with Robbie”.

[72] Gordon White did not return to the right-of-way or Part 6 until he went to pick up some honey at Leonard Vincent’s, when he noticed a cable across Part 6.

[73] Gordon White confirmed during cross-examination that he never used the right-of-way or Part 6 in the summertime. He may have used it twice in May or June of 1993 when he tried bullhead fishing here, but was unsuccessful, so never went back for that purpose.

[74] Gordon White conceded in cross-examination that the right-of-way and Part 6 are not “directly connected to his property”. Further, the right-of-way and Part 6 are “not an absolute necessity” with respect to his property. Rather, he described the right-of-way and Part 6 as a “therapeutic and recreational use”. This is in contrast to the residents who live along the right-of-way, or Curtis Lane, who require it to access their property, and to access the Daytown Road from their property.

[75] Gordon White testified that he was always with the Curtis’s when he used the right-of-way and Part 6 as a boy. As he said, “I never used it alone when I was a boy”.

[76] Gordon White’s evidence was inconsistent regarding the extent to which he would use Part 6 to access the lake for ice fishing, as between his examination for discovery and his evidence at trial. At discovery, he testified that when the fish “used to bite pretty good”, he would go fishing “maybe a dozen times”, which was reduced to “maybe three at most”, in the last few years. In contrast, at trial, the frequency grew to twenty times a winter, “depending on whether the fish were biting”.

[77] Gordon White confirmed that he generally parked on the edge of the ditch, on Part 6, and that the stones/concrete that were placed on Part 6 never blocked him from parking on or accessing Part 6, as alleged in paragraph 15 of the Statement of Claim.

[78] Gordon White testified that it was Leonard Vincent who told him that he could park on Vincent’s property and use the gate from Vincent’s property to access Part 6, thereby pulling through and out onto the right-of-way, as opposed to backing up and going out Vincent’s laneway. Gordon White conceded that “sometimes others would pull through (Part 6) that way…friends of Vincent’s…the odd one that Vincent had over”. Gordon White testified to seeing people using Part 6 in this manner, but would not admit that it was a “strange use” of Part 6.

[79] Gordon White described that he parked on Part 6 “between the roadway and the culvert, along the edge”. He further testified that he only required parking for “the length of the truck”.

[80] Gordon’s White’s evidence regarding the reason why Robert White went to Part 6 in March, 2012, was inconsistent as between his examination for discovery and his evidence at trial. At discovery, the following question was asked and answer given:

Q. 112 Did Robert discuss it with you before going down there that day?

A. Yeah, he asked me – he asked me where it was. They wanted to have a look at it because, you know, he looked at the deed and everything and saw it and he wanted to see where it was. He’d never been down there before.

[81] In contrast, at trial, Gordon White testified that Robert’s wife had never been “back the road” (the right-of-way) and that Robert wanted to show her what they had been discussing.

[82] With reference to the “No Trespassing” signs that were posted on Part 6, Gordon White conceded that “people were using it (Part 6)…I guess you could say they were trespassing…signs wouldn’t have affected me”.

Discovery Evidence

[83] As part of the Plaintiffs’ case, the following excerpts were read in from the Defendants’ discovery evidence:

Borden Curtis:

[84] P. 13 Q’s 70-73: In summary, that prior to purchasing 153 Curtis Lane in 2001 he saw people using Part 6, but he could not say specifically who.

[85] P.14 Q’s 76-77: In summary, that he knew the Wilson’s and that he recalled seeing them using Part 6.

[86] P.14 & 15 Q’s 79-81: In summary, that he saw the Wilson’s put a canoe in the lake at Part 6 and go for a paddle.

[87] P.16 Q’s 88-90: In summary, that Gordon White was the only individual that he ever saw use a vehicle over Part 6. That it was John Curtis who put the fill on Part 6 and that he may have seen John Curtis drive over it (the fill).

[88] P.18 & 19 Q’s 103-104: In summary, that he admits the right-of-way includes the road outlined in green on document 17 and the transfer found behind Tab 27 refers to the right-of-way.

[89] P.23 & 24 Q’s 116-118: In summary, that the Defendants would allow the Plaintiffs walking access over Part 6 to the lake.

[90] P. 26 & 27 Q 127: In summary, that Gordon White parked his vehicle in the middle of Part 6, which prohibited others from accessing the lake.

[91] P. 29 & 30 Q 142: In summary, that he put a cable up across the entrance to Part 6 for approximately 4 weeks, after Robert White had been on Part 6 on March 18th and 21st. The cable was taken down because it hindered grass mowing.

[92] P. 30 & 31 Q 147: In summary, that the majority of people who were trespassing on Part 6 would enter Leonard Vincent’s property, then pull through the gate leading onto Part 6 and back out onto the right-of-way.

[93] P. 39 & 40 Q’s 177-183: In summary, that aluminum boats are launched from the dock at the end of Part 6 from time to time. That he uses an ATV to do this, because there is a chance of getting a truck stuck due to the nature of the shoreline along Part 6. Further, Leonard Vincent got his truck stuck in the spring of 2013 when he was launching his boat at Part 6.

Jana Curtis:

[94] P. 3 & 4 Q’s 14-20: In summary, that she noticed people on Part 6 who she learned were surveyors and that she asked them to leave because she considered them to be trespassers. The surveyors advised her that they were retained by the Plaintiffs.

Defendants

[95] Borden Curtis was born and raised on the family farm, and but for a 6 month stint working in Sudbury in 1970/71, he has always lived in the Delta area.

[96] He and Jana Curtis purchased 153 Curtis Lane on September 11, 2001, from Paul and Wilma Adams, as referenced in Exhibit A4. The residence was used as a cottage until June 30, 2009, when they moved in on a year round basis. As of October 26, 2011, Borden and Jana Curtis owned both 153 Curtis Lane and the entire area highlighted in yellow on Exhibit A5, which includes Part 6, the balance having been purchased from Ernest and Darlene Curtis, as referenced in Exhibit A6.

[97] Borden Curtis described the right-of-way as being a “tractor trail” leading down from the Daytown Road over which farm equipment was used. He explained that it did not run south “straight to the lake area” in the 1980’s. Rather, it curved across the back of the cottage lots, and there were two arms to the road. The road leading to where Leonard Vincent now resides was “not good” because there were springs in the area that were “quite active” in the spring and early summer. These springs drained down through Part 6. He marked on Exhibit A5 the general location of where the active springs were located.

[98] Borden Curtis testified that these springs would flood the road in the area of Part 6, and that Part 6 was “barely above the lake level”. Where the cattle watered on Part 6 was “mostly a bog”, and the cattle made things worse with the manure and urine that they deposited on Part 6.

[99] Borden Curtis testified that these conditions on Part 6 persisted until his brother, John Curtis, built a new home west of where Leonard Vincent currently lives, on a property previously owned by a Mr. Belmont. John Curtis had to blast rock to put a basement in. He deposited this rock onto Part 6 “so it (Part 6) was usable”. This happened in 1995. Part 6 was then “top dressed with gravel” in 1996. John Curtis also put a culvert under the right-of-way to drain water from the springs on the north side of the right-of-way, plus he added “Big O” along both sides of Part 6, along with a drainage ditch on the west side of Part 6.

[100] Borden Curtis described the dairy operation that was carried out on the Curtis farm, relative to the right-of-way and Part 6. Every year, around the May long weekend, the cattle would be turned out and allowed to run down to Part 6 where they would water over the course of the summer. This would include a mix of mature milking cattle and young cattle, approximately 40 head in all. The milk cows would be driven back to the barn for milking, both in the morning and the evening. However, the young cattle would remain free on the south side of the Daytown Road to run down to Part 6 to water from the May long weekend until 2-3 weeks before deer hunting season each fall, which would be in early November.

[101] Borden Curtis agreed that he and Gordon White were boyhood friends. As he explained, they “were all over the place together” riding their bicycles. Fred Cole would show up on Saturdays, as he lived in Belleville. But, as Borden Curtis said, “he (Fred Cole) was always around…he was a friend”. Leonard Vincent was always around as well, as he was John Curtis’s brother-in-law.

[102] Borden Curtis could not recall any particular problems with trespassers on Part 6, speaking historically, because the people who used it were either family or friends, Gordon White being one of those friends.

[103] Following the purchase of 153 Curtis Lane in 2001, Borden Curtis testified that the only person he saw use Part 6 was Gordon White, when Gordon would park his vehicle on Part 6 and walk to the lake to ice fish. This happened from mid-January to mid-February, approximately 6-8 times a year. He described that Gordon would park his vehicle in the middle of Part 6, about a third of the way down from the travelled portion of the road, and then walk to the lake to fish. However, at some point the Ministry of Natural Resources would remove a “log from the dam”, which caused the water level to go down and the ice to settle. This resulted in the ice being rough at the water’s edge, and difficult to walk over, let alone drive over. To that end, Borden Curtis testified that he never saw Gordon White drive out onto the lake since living at the lake full-time.

[104] Borden Curtis testified that it is difficult to access Part 6 with a vehicle in the wintertime because that is where snow is pushed to when it is plowed off the right-of-way. As he explained, the right-of-way is only 10 feet wide and there are few places where the snow can be plowed to, Part 6 being one of them. It would only be if there was a “thaw that you would be able to drive in there” (Part 6).

[105] Borden Curtis disagreed with Gordon White’s evidence that anyone would fish bullheads from the end of Part 6. As he described, in most spots there is “only a foot of water” at the end of Part 6; it’s too shallow to fish bullheads there. They did, however, fish for bullheads in front of where Leonard Vincent resides.

[106] Borden Curtis disagreed that Part 6 was the only place where people historically accessed the lake from the right-of-way. What is now described as the “Angus property”, to the east of 153 Curtis Way, was also used to access the lake. Parenthetically, John Gerrettsen, the former MPP for Kingston and the Islands until 2014 and Attorney General of Ontario, was a previous owner of the Angus property, and may well have been in a position to shed some light on this alternative access to the lake in the period when the Wilsons owned 707 Daytown Road. However, Mr. Gerrettsen was never called to testify.

[107] Borden Curtis testified that he placed two rocks in front of the gate leading from Leonard Vincent’s property onto Part 6 on March 12, 2012, because the area had become a “circular driveway”. Leonard Vincent was engaged in a business selling maple syrup from his residence, as well as at a location in Crosby, Ontario. People would come to his residence to purchase syrup. They would drive in Leonard Vincent’s lane and go out through the gate onto Part 6, and then back onto the right-of-way. Thus, Borden Curtis disagreed that he put the stones there to block Gordon White. Rather, he put the stones there to keep people from using Part 6 as a “circular driveway”. Notably, Leonard Vincent was never recalled by the Plaintiffs to address this evidence.

[108] Borden Curtis testified that he spoke with Leonard Vincent about the “circular driveway”. Leonard apologized for allowing people to drive through the gate and back out onto Part 6, and agreed to close the gates if Borden would move the rocks, which he did. The rocks now sit between the culvert and the fence and thus do not interfere with access onto Part 6, particularly parking on the west side.

[109] Borden Curtis attended at Part 6 on March 18, 2012, when the confrontation occurred between Robert White and John Curtis. Borden Curtis did not know who Robert White was upon arriving at the scene; apparently neither did his brother, John. Robert White was on a telephone advising that he was calling the police and saying that John Curtis would be arrested and taken away in handcuffs. Thereafter, Robert White indicated that he wanted to leave. Borden Curtis’s response was, “he called the police, so he can be here when they arrive”. The police did arrive, and removed Robert White to Leonard Vincent’s laneway. Borden Curtis’s position was that they should be able to stop people who are on their property who they do not know, for purposes of questioning them as to why they are there. Further, Borden Curtis put up the “No Trespassing” signs and the cable so as to avoid any further confrontations.

[110] With reference to Exhibit B15 photograph #14, there are no rocks evident in the photograph that would prohibit parking on Part 6, as Robert White testified. The natural accumulation of snow may, however, inhibit parking, based on the photos contained behind Exhibit B15. Also seen in Exhibit B15 photograph #12 is the portable dock that Borden Curtis positions on the property line between 153 Curtis Lane and Part 6, from which he launches boats. The legs of the portable dock are relatively short, which fits with Borden Curtis’s evidence that the water at the end of Part 6 is no more than a foot deep, in most places. Borden Curtis testified that historically there was a line fence between the two properties; however, when they purchased Part 6, he took the fence down. In keeping with Leonard Vincent’s evidence, Borden Curtis testified that cattle would also come to the shoreline on Part 6 to water and would come up onto their lawn at 153 Curtis Way and destroy their flower beds. Thus, he positions the portable dock out into the water along the property line to keep the cattle from accessing 153 Curtis Way.

[111] Borden Curtis confirmed that Part 6 was always a “working part of the farm”. Further, his father, Elton Curtis, specifically excluded Part 6 for the farming operation to provide access for the cattle to drink during the summer months. Marked as Exhibit “F” is correspondence, dated January 24, 2011, referencing “severance application B-164-2010 Curtis”, together with a plan showing part of lot 20, Con. 9, Township of Bastard, County of Leeds, wherein the applicants were required to confirm that: “ the waterfront access point is no longer required for agricultural purposes” (emphasis added). Further, the plan shows Part 6 shaded in, indicating it to be the waterfront access point for agricultural purposes referenced in the correspondence.

[112] To recall, the Wilsons owned 707 Daytown Road prior to the Plaintiffs purchasing the property. The Wilsons resided there from 1978, following their purchased from Annie Mendelson, who never occupied the property, to 1990 when they sold to the Plaintiffs. Borden Curtis testified that the only use the Wilsons made of Part 6 was to access it with a canoe. They would bring their canoe down to Part 6 with a vehicle, return the vehicle to the Daytown Road, and then walk back down to Part 6. Borden Curtis estimated that this happened 3-4 times over the years that the Wilsons lived at 707 Daytown Road. To Borden Curtis, this use made sense because, based on his observations, Part 6 could not be accessed with a vehicle prior to 1995 when his brother, John Curtis, made the improvements that he did. Moreover, that was the situation dating back to 1977 when his father, Elton Curtis, made the original grant to Annie Mendelsen. Part 6 was not accessible by vehicles, and it was purposely excluded for the farming operation to allow cattle to go down to the lake to drink, from the May long weekend until the late fall.

[113] Borden Curtis confirmed that Leonard Vincent plows snow onto Part 6 during the winter months, and to the extent that access to Part 6 may be blocked by the snow, it is unavoidable, because there is no other place to push the snow.

[114] Sandra Griffin is the widow of the late John Curtis, who passed away in January, 2013. She resides at 171 Curtis Way, which is situated to the west of Leonard Vincent, one lot over from Part 6. John Curtis purchased the property in or about 1975 and was occupying it seasonally when she married him in 1983. When she started to use the property with John in the 1980’s, they could not drive into the property year round. They could drive in during the summer months, and otherwise would access the property on foot from the Daytown Road. As she put it, “The road wasn’t kept open because nobody was living down there (at the lake) year round at the time”.

[115] Sandra Griffin testified that she and John spent a lot of time grading the road with a tractor and filling in potholes, particularly in the spring, because “there was like a lot of like very deep, you know, ruts in the road…you had to wait until the frost came out of the ground, out of the road before you could actually…drive down safely”.

[116] With specific reference to Part 6, Sandra Griffin testified that it was never part of the travelled road. She described Part 6 in the 1980’s as being “very muddy…It was where the cows went for water…it was very grassy and very wet…you would call it a mud bog.” She further described that the area of the road next to Part 6 was low and that in the spring there would be “big ruts there so I think there’s a natural spring that kind of runs”.

[117] Sandra Griffin confirmed that it was not until Leonard Vincent began to live at the lake on a full-time basis that the road was plowed in the wintertime. Having said that, neither Leonard Vincent nor anyone else had ever plowed Part 6. Rather, Part 6 is where the snow is deposited from the travelled portion of the road.

[118] Sandra Griffin testified that she and John built a new home in 1995 to occupy on a full-time basis. Their building permit was marked as Exhibit I. Further, a significant amount of stone was excavated by Tackaberry Construction in order to construct a basement for the home. Tackaberry Construction was going to charge them to truck the stone away. It was John who had the idea to use the stone to improve the conditions on Part 6. Marked as Exhibit H is an invoice from Tackaberry Construction, dated June 1-5, 1995, indicating that, inter alia, 31.26 tons of stone (equal to approximately 62,000 pounds) was excavated from the basement. Marked as Exhibit G is the “Daily Time of Rental Sheet” from Tackaberry Construction indicating that it took 6 ½ hours to remove the stone, which Sandra Griffin testified was substantially used to fill in Part 6. As the Sandra Griffin described, “…that rock, it was big…it raised it (Part 6) up quite a bit…I’m thinking we must have put some topsoil or something over top of it because the rock was very…sharp and pointy…and rough for a long time”.

[119] That said, Sandra Griffin confirmed that Part 6 was used “for the farm, for the cows, the cattle to come down and water”.

[120] Sandra Griffin confirmed in cross-examination that the boats that were used for the rental cottages located on their property were put in at Part 6 by utilizing a farm tractor. However, individuals who rented the cottages and used the boats did not access the boats from Part 6. Rather, the boats were parked at docks located in front of the rental cottages.

[121] When pressed on whether all or part of the rock was dumped onto Part 6, Sandra Griffin’s response was, “Oh, yes, I definitely know that the rock was put in there.” However, she agreed that not all of the rock went into Part 6, and agreed that it was probably raised up 6-8 inches, as Leonard Vincent testified.

[122] Sandra Griffin clarified that boats were launched from Part 6 in the spring and pulled out in the fall, in addition to cattle using Part 6, however, it was “… something that my husband did because it was part of the farm property”. (emphasis added)

[123] Maurice Curtis resides at 704 Daytown, and other than one year that he resided in Kingston, he has always lived in the area. He lives approximately a half a kilometer form Part 6.

[124] With reference to Exhibit B20, Maurice Curtis described the condition of the right-of-way dating back to the 1960’s as a “tractor trail or cattle trail”. He explained that a Mr. Belmont purchased the property where his brother, John Curtis, would eventually build his home. His father, Elton Curtis, would take Mr. Belmont to the property with the tractor and a wagon in the springtime to “put him in there”. Further, when the trail was first established, it did not have the “two arms” that exist today. Rather, there was only the northern arm that ran into Mr. Belmont’s lot. The southern arm was established when other individuals bought the lots along the water. John Gerrettsen was able to drive to his lot (now occupied by the Angus’s) in the “middle of the summer, when the area was good and dry”. When the “other cottagers…started trying to drive and they’d drive close to their lot…there would be quite a bit of trouble. They were buying gravel and stuff and putting it in there…it would just sink”.

[125] Maurice Curtis testified that what is now Part 6 was never part of the travelled road coming down from the Daytown Road. In the 1970’s, Part 6 was used to water the cattle, “so it was pretty much covered with manure and holes that the cattle put on it (Part 6) because it was a damp area…it was all mud”. Maurice Curtis further described Part 6 as “always damp most of the year unless we had a real dry summer and the lake was really down…the cattle would go through it, punch it full of holes and urinate and crap on it, and it was just not a place you’d want to walk.”

[126] Maurice Curtis testified that there are springs “up in the wood…behind Leonard Vincent’s place…it runs down into that area (Part 6) so that’s what keeps it wet”.

[127] Maurice Curtis testified that historically there were problems with trespassers on Part 6. For example, his brother-in-law, Fred Cole, “used to try and park on it (Part 6) and he’d get stuck…Dad would go back and tow him out and he kept telling him to stop doing it…finally he made him pay 20 bucks to get towed out so that kind of taught him and he quit parking there”.

[128] Maurice Curtis testified that there was at one time a trailer on Part 6 that his father bought from Mr. Belmont. His father placed the trailer on Part 6 to “try and block people from going in there” (Part 6). His father placed the trailer on Part 6 “in the latter part of the sixties, ’67, ’68 maybe”. He estimated that the trailer remained on Part 6 until his brother, John Curtis, “put the rock in there”. Again, the purpose for his father putting the trailer on Part 6 was “to block people from trying to use that area…because they’d try to use it and get stuck and then they’d be bothering my dad to…tow it out”.

[129] Maurice Curtis testified that his father placed the trailer “on the solidest piece of ground that was part of Part 6. There was a little kind of a knoll. He parked it on the knoll and that forced anybody that was trying to get in there…to go on the wet spot which kind of, that pretty much shut people down, they quit going in”.

[130] Maurice Curtis testified that the family used Part 6 for the farming operation. As he said, “It was originally, the intention of it was to water cattle and was what it was used for until the government…stopped people from…letting cattle get in the water.” He explained that the cattle would be in there (Part 6) “through the daytime hours…the young cattle would be in there all 24 hours…they would just leave them there through the summer”.

[131] Maurice Curtis recalled the time when the Mendelson residence was being built at 707 Daytown Road. He testified that Annie Mendelson never occupied the home. Rather, she sold the home to George Wilson, who Maurice Curtis knows. Mr. Wilson resides in the nearby town of Gananoque.

[132] Maurice Curtis testified that he has never seen Mary Magwood walk along the right-of-way, although he does see Leonard Vincent walking on it “all the time”. To recall, Maurice Curtis resides approximately a half kilometer from Part 6.

[133] Maurice Curtis estimated that there is “close to a mile” of shoreline on the Curtis farm. Dating back to the 1970’s, he also testified that there was access to the lake from “the farm road right next to the main line separating the White and the Curtis farm…that goes back to the lake”.

[134] Maurice Curtis testified that, prior to John Curtis improving Part 6, there was access to the lake at that point, “if you didn’t mind walking…I suppose. But George Wilson, he used to leave his boat beside the Angus property….It’s reasonably good…there’s a bit of a bank, but it’s not a bad bank. He (George Wilson) used to pull his…12 foot car top boat…up on there. That’s where he put his boat….”

[135] Maurice Curtis was asked during cross-examination whether or not he had ever seen boats launched from Part 6, to which he replied, “…I saw boats there. John (Curtis) parked boats there…because he rents boats….he’ll park them at his dock…if they’re not being rented, he will move them out of the way and put them over in Part 6.

[136] Maurice Curtis was asked whether or not John (Curtis) was using Part 6 to launch boats “in the seventies as well”. He replied, “No, I wouldn’t call it launching boats, just to park them out of the way because it’s…shallow ground. You couldn’t put a trailer in there if you’re going to unload a boat. You’d wind up stuck for that, too.”

[137] Maurice Curtis testified that “there were all kinds of trespassers going in (Part 6) trying to catch frogs and stuff like that….they might walk across…cottage lots…they’d go across their lots and anywhere on the farm….You’d often see them over on the field next to White’s there….”

[138] Maurice Curtis identified, with a green marker, the access path to the water on Exhibit A17, fourth photo in, where George Wilson used to store his boat and access the lake. He identified the same access path to the lake on the third photo at Exhibit A17.

[139] It was suggested to Maurice Curtis that people were attempting to access the lake in vehicles using Part 6 in the 1960’s and up until 1990, when his father had placed the trailer on the knoll. Maurice Curtis replied, “Not with vehicles, no. When they…did use vehicles they got stuck…and…it scares the cattle…keep the cattle drove away from the water….Dairy cows need water.”

[140] Maurice Curtis clarified, as a result of questions put to him by the court, that George Wilson tied his aluminum, 12 foot, car-top boat to a tree, next to what is now referred to as the Angus property, which was previously owned by John Gerrettsen. Further, he confirmed that nowhere along the right-of-way leading down from the Daytown Road was there an area that was as wet as in the area of Part 6. Specifically, there was no area along the right-of-way between the Daytown Road and what is now called the Angus property that was as wet as in the area of Part 6.

[141] Robert Jordan, Ontario Land Surveyor (OLS), of Jordan & Wiseman Surveying Ltd., was retained by the Defendants to prepare the survey, dated April 29, 2011, marked as Exhibit “J”, not for purposes of this litigation. Rather, the survey was required in conjunction with the purchase of Part 6. In preparing the survey, Mr. Jordan testified that he would have had the requisite title searches conducted, he would have spoken with the client and any abutting property owners, and he would have examined the relevant deeds, including any easements, as part of his preliminary office work. He would then venture into the field to survey the scene and to tie in all of the evidence that had been gathered.

[142] As part of the preliminary investigation, Mr. Jordan obtained a copy of the field notes of his predecessor, K.M. Wiseman O.L.S., dated July 30, 1962, marked as Exhibit B1. There is no quarrel that Mr. Wiseman’s field notes were prepared in relation to the original severance of the cottage lots from the Curtis farm undertaken by Elton Curtis. Part 6 appears in the field notes as a 40’ strip marked “For Cattle Use”. Thus, it was Mr. Jordan’s evidence that the original purpose of Part 6, positioned as it was between two cottage lots, the one now owned by the Defendants to the east (153 Curtis Way), and the other now owned by Leonard Vincent to the west, was for cattle to water at the lake.

Discovery Evidence

[143] As part of the Defendants’ case, the following excerpts were read in from the Plaintiffs’ discovery evidence:

Gordon White:

[144] P. 11 & 12 Q’s 62-65: In summary that, he would ice fish approximately “a dozen times” a year, in those years in which the fish would “bite pretty good”. However, in the last few years “maybe a couple of times, maybe three at the most”. Quite often the “hired man” would go with him and they would fish “for an hour or two”.

[145] P. 16 & 17 Q’s 87-89: In summary that, he felt that he had an easement for parking on Part 6 because he had “a right-of-way to the water”. When there was snow blocking Part 6, he parked in Leonard Vincent’s yard.

[146] P. 21 Q 112: In summary that, his son, Robert White, asked him where it (Part 6) was, because Robert had “never been down there before”. Robert had looked at the deed and saw it (Part 6) and he wanted to see where it (Part 6) was.

[147] P. 30 & 31 Q’s 155-158: In summary that, the boulders were on the right-of-way “side of Leonard’s fence”. He never had anything to do with the boulders, and they would not have affected his access to the lake.

Law

[148] A general statement of the law pertaining to a right-of-way created by an express grant is summarized in Anger and Honsberger Law of Real Property thus:

The nature and extent of a right of way created by an express grant depends upon the proper construction of the language of the instrument creating it. The court primarily will look at the words of the grant. However, parol evidence is admissible to show the situation at the time of the grant and of the parties and the surrounding circumstances in order to show the nature and extent of the intended user. Surrounding circumstances that are particularly material are the description and nature of the lands or buildings of the dominant tenement and the nature of the locus in quo of the servient tenement over which the right of way is granted as it existed at the date of the grant.

[149] Gordon J., in this court, in West High Development Ltd. v. Veeraraghaven, 2011 ONSC 1177, with reference to Smith v. Morris, [1935] O.R. 260 (Ont. C.A.), reproduced the words of Masten J.S. standing for the same principles, specifically:

My study of the cases leads me, however, to the conclusion that an easement constituted by a grant is to be interpreted according to the intention of the parties at the time of the grant, having regard primarily to the words of the grant itself, though in a case like the present, the surrounding circumstances are also relevant as evidence to interpret the rights which are implied in the particular case.

[150] The case of Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al, [1967] 2 O.R. 613, a decision of Stark, J. of the Ontario High Court, is often cited as having laid down the four characteristics of an easement:

1. There must be a dominant and servient tenement.
2. An easement must “accommodate” the dominant tenement.
3. Dominant and servient owners must be different person.
4. A right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

Positions of the Parties

[151] The Plaintiffs acknowledge that they bear the burden of establishing, on the preponderance of evidence, the express right-of-way claimed across the Defendants’ lands.

[152] The Plaintiffs agree that if the right-of-way is ambiguous, the court can then look at the circumstances existing at the time of the grant for the purpose of construing the conveyance as to the nature and extent of the rights conveyed.

[153] The Plaintiffs contend that there is no ambiguity. Rather, their express right-of-way is clearly set out in the original grant, which has been replicated verbatim from Annie Mendelson to the Wilsons, and from the Wilsons to the Plaintiffs. Put simply, the only reasonable interpretation is that Part 6 was intended to access Upper Beverly Lake, because it is the only piece of property reserved for access to the lake.

[154] Thus, as the Plaintiffs contend, it is the Defendants who bear the burden of showing why there should be some limitation put on their use of Part 6.

[155] The Plaintiffs conceded that they may have to contribute to the cost of plowing snow along the right-of-way and on Part 6.

[156] The Defendants contend that the description in the original grant is, at best, ambiguous. Moreover, the Defendants assert that the description fails the four essential characteristics of an easement, specifically:

#2. The easement does not “accommodate” the dominant tenement; and #4. It is not capable of forming the subject-matter of a grant.

[157] Thus, the Defendants assert that what was granted was a personal licence only for pedestrian traffic over Part 6 to the “north shore of Upper Beverly lake”, that is not transferable, absent the Defendants’ consent. The Defendants agree that there is an easement over the road itself. The Defendants would be prepared to grant a personal licence for the Plaintiffs to park a pick-up truck on the west side of Part 6, ten feet to the east from the western boundary, and ten feet to the south of the travelled portion of the road, which would also be non-transferable, absent the Defendants’ consent.

Analysis

[158] Having considered all of the evidence, the positions of the parties and the authorities referred to me, I make the following findings of fact.

[159] The Curtis farm, which encompasses the right-of-way and Part 6, has been at all material times a dairy operation that sits both to the north and to the south of the Daytown Road. The southern part of the farm runs south to Upper Beverly Lake.

[160] When Elton Curtis had the farm surveyed by K.M. Wiseman O.L.S. in 1962 for purposes of making application to sever cottage lots from the farm, he specifically excluded and had designated Part 6, a 40’ x 193’ strip of land running from the right-of-way to the north shore of Upper Beverly Lake, “For Cattle Use”, as Exhibit B1 and the weight of evidence makes clear.

[161] I accept Maurice Curtis’s evidence when he said that it was never his father’s intention that Part 6 should be part of the travelled road coming down from the Daytown Road. As he described, in the 1970’s, Part 6 was “pretty much covered with manure and holes that the cattle put on it because it was a damp area…it was all mud”. Further, Part 6 was “always damp most of the year unless we had a really dry summer and the lake was really down…the cattle would go through it, punch it full of holes and urinate and crap on it and it was not a place you’d want to walk”.

[162] I accept Borden Curtis’s evidence when he said that natural springs would flood the travelled road in the area of Part 6, and that Part 6 was “barely above the level of the lake”. Moreover, where the cattle watered on Part 6 was “mostly a bog”, and that the cattle made things worse with the manure and urine that they deposited on Part 6.

[163] I accept Borden Curtis’s evidence when he described how the dairy cattle and the young cattle, approximately 40 head in all, were turned out and allowed to water at Part 6 from the May long weekend until the late fall of each year. Further, the milk cows would be driven back and forth to the barn, both in the morning and the evening, for milking. However, the young cattle would be left to water at Part 6, 24 hours a day over approximately 5 months of the year.

[164] Leonard Vincent, who was called by the Plaintiffs, confirmed that Elton Curtis retained Part 6 as part of the farm when he severed off the cottage lots so that he could water the cattle “during the dry months of June, July and August”. He also confirmed that this watering of cattle happened “right up to 3 to 4 years ago…it was not unusual to find cattle on Part 6…20 to 30 in a herd”. Leonard Vincent described how the cattle came down onto Part 6 to water at the lake often enough that he had to install a “Texas gate” to keep them off his property. However, the cattle were persistent enough that they would enter onto his property from the lake side of Part 6, by going around the end of the line fence, and destroy his flower beds. Borden Curtis testified to the same problem with the cattle entering onto his property from the east side of Part 6.

[165] There is no quarrel that at some point in time the government ended the practice of allowing farmers to water cattle at lakes that border on farms. While the exact date was never established in evidence, Exhibit F, dated January 24, 2011, referencing “severance application B-164-2010 Curtis”, together with a plan showing part lot 20, Con. 9, Township of Bastard, County of Leeds, confirms that, “ the waterfront access point is no longer required for agricultural purposes” (emphasis added). Further, the plan shows Part 6 shaded in, which I infer indicates that Part 6 was the waterfront access point for agricultural purposes referenced in the correspondence. To recall, Leonard Vincent confirmed that watering of cattle at Part 6 continued up until 3-4 years ago, which I find accords (approximately) with Exhibit F. In any event, what is clear, in my view, is that Part 6 has been used, as part of the ongoing dairy operation, to water cattle for a substantial portion of each year from as far back as 1962 (Exhibit B1), to well past the Plaintiffs’ purchase of 707 Daytown Road in 1990.

[166] Thus, it seems implausible that Mary Magwood would never have seen cattle on Part 6 during any of her walks to the lake, as she testified. Indeed, even Gordon White conceded that he was “never back there (Part 6) in the summertime, that’s when the cattle would be there”. Moreover, it seems improbable that Mary Magwood would not have found Part 6 to be muddy at any time when she walked to the edge of the lake in the early 1990’s, which predated the improvements that were made to raise up the level of Part 6 in 1995. On this point, Mary Magwood’s testimony was contradicted by the weight of evidence to the contrary. Thus, I am left to conclude that Mary Magwood’s walks to the lake along the right-of-way were so infrequent as to be negligible, or inconsequential. That said, Mary Magwood clarified that she did not walk down the right-of-way in the winter months when it was “inaccessible by snow”. Neither did she walk to the lake “in high season when it was hot and there were horse flies”. In effect, by her own admissions, Mary Magwood was, at best, an infrequent walker along the right-of-way during two seasons: spring and fall.

[167] I accept Maurice Curtis’s evidence when he testified, with reference to Exhibit B20, regarding the condition of the right-of-way dating back to the 1960’s, when he described it as a “tractor trail or cattle trail”. He explained that an individual named Belmont initially owned the property where John Curtis would eventually build a home, and where his widow, Sandra Griffin, now resides. The conditions were such that Elton Curtis would take Mr. Belmont to the property with a tractor and a wagon. These conditions persisted into the 1970’s, when the only maintenance done on the road was by the cottagers.

[168] I accept Leonard Vincent’s evidence when he testified that he could not drive into his property, which would require traversing the section of travelled road next to Part 6, prior to 1987 when he began living at the lake on a full-time basis. The right-of-way was inaccessible by vehicle for reasons of snow accumulations during the winter months, and mud during the spring. Rather, he would park his car along the Daytown Road and walk in. Further, he testified regarding a specific section of the right-of-way next to Part 6 that was particularly susceptible to flooding. To recall, he testified that the flooding was not simply caused by spring runoff. There was an area on the north side of the right-of-way where there was “an active spring”. Moreover, he confirmed that Part 6 was susceptible to flooding because of the number of “springs all over the land”.

[169] I accept Borden Curtis’s evidence when he testified that the road leading to where Leonard Vincent resides was “not good” because there are springs in the area that are “quite active” in the spring and early summer. Further, these springs drain down through Part 6. Borden Curtis marked on Exhibit A5 the general location of where the active springs are located. Borden Curtis further testified that these springs would flood the road in the area of Part 6, along with Part 6, which was exacerbated by the fact that Part 6 was “barely above the lake level”, prior to the improvements being made to Part 6 in 1995. Thus, I accept that Part 6 was not accessible for vehicular traffic, save and accept by ATV, tractors or snowmobiles, prior to the improvements being made in 1995, other than occasionally during very dry months, or when frozen in the winter months, and not rendered inaccessible for reasons of snow accumulation.

[170] Borden Curtis further testified, which I accept, that John Gerrettsen, former M.P.P. for Kingston and the Islands and Attorney General for the Province of Ontario, was a prior owner of what is now referred to as the Angus property, which borders on 153 Curtis Way immediately to the east. A Mr. McIntyre was a prior owner of where Leonard Vincent resides, immediately to the west of Part 6. John Gerrettsen was said to be able to drive to the back of his property during the dry months of the year. However, Mr. McIntyre, in attempting to access his property by vehicle along the right-of-way, would often get stuck because of the natural springs that existed in the area.

[171] Maurice Curtis’s observations support those of his brother, Borden. Maurice Curtis testified that John Gerrettsen was able to drive to his cottage (the Angus property) in the “middle of the summer, when the area was good and dry. However, when the other cottagers…started trying to drive and they’d drive close to their lot…there would be quite a bit of trouble. They were buying gravel and stuff putting it in there…it would just sink”.

[172] I accept Leonard Vincent’s evidence when he testified that for two years after he began to live full-time at the lake, which commenced in 1987, he would be forced to park on the Daytown Road and walk into his property during the winter months, depending on how much snow had accumulated on the right-of-way. Further, when he began to plow the right-of-way, he pushed a certain amount of the snow onto Part 6, because there was no other place to put it. In these circumstances, I infer that Part 6 would have been rendered inaccessible by vehicular traffic.

[173] I accept Gordon White’s evidence when he testified that on occasion he parked on Leonard Vincent’s property when he used Part 6 to access the lake for ice fishing, which Leonard Vincent agreed with in his evidence. I infer that Gordon White did so because Part 6 was not reasonably accessible for parking a vehicle on, on those occasions, due to snow accumulation.

[174] I accept Borden Curtis’s evidence when he testified that it is difficult to access Part 6 with a vehicle in the wintertime because that is where the snow is piled when it is plowed off the right-of-way. As he explained, the right-of-way is only 10 feet wide and there are few places where the snow can be plowed to, Part 6 being one of them. Accordingly, Part 6 would only be available to drive on in the event of a thaw during the winter months, or in the absence of an accumulation of snow. Thus, I infer that, to the extent that Gordon White parked on Part 6 during the winter months, he could only do so in circumstances when there was little snow accumulation, or when there had been a thaw. Otherwise, I infer that he parked on Leonard Vincent’s property on those few occasions each year when he would access the lake from Part 6 for purposes of ice fishing.

[175] I accept Sandra Griffin’s evidence when she testified that she and her late husband, John Curtis, built a new home in 1995 as referenced in Exhibit I, the building permit. As part of the construction process, 31.26 tons of stone was excavated from the basement, as set out in Exhibit H. I accept that a substantial portion of the excavated stone was deposited onto Part 6 by Tackaberry Construction, such that the level of Part 6 was raised up approximately 6-8 inches over an area that is approximately 40’ wide and 193’ long, which accords with the evidence of Leonard Vincent. Leonard Vincent further testified that in addition to adding “several truckloads of stone” to Part 6, there was ditching completed along both sides and a culvert was added on the west side, next to his property line, for purposes of draining Part 6.

[176] I accept Borden Curtis’s evidence when he testified that the issues that rendered Part 6 inaccessible for vehicular traffic persisted until his brother, John Curtis, deposited the rock onto Part 6 “so that it was useable”. Borden Curtis further testified that in addition to the rock being added to Part 6, it was “top dressed with gravel” in 1996. John Curtis also put a culvert under the right-of-way to drain water from the springs on the north side of the right-of-way. Finally, John Curtis added “Big O” along both sides of Part 6, along with a drainage ditch on the west side of Part 6. Thus, I infer that it was not until these substantial improvements were made to Part 6 by John Curtis in 1995/96 that Part 6 was reasonably accessible, for a limited purpose (parking), at only certain times of the year, for vehicular traffic.

[177] I accept Maurice Curtis’s evidence when he testified that historically there were problems with trespassers on Part 6. As he testified, his brother-in-law, Fred Cole, “used to try and park on it (Part 6) and he’d get stuck….Dad would go back and tow him out and he kept telling him to stop doing it….finally he made him pay 20 bucks to get towed out, so that kinda taught him and he quit parking there”.

[178] I also accept, as Maurice Curtis testified, that his father bought a travel trailer from Mr. Belmont and placed it on Part 6 to “try and block people from going in there” (Part 6). The trailer was placed on Part 6 in the latter part of the “sixties”. It remained there until his brother, John Curtis, “put the rock in there”. Elton Curtis was attempting to block people from going into Part 6 with vehicles “because they’d try to use it and get stuck and then they’d be bothering my dad to…tow it out”.

[179] Maurice Curtis further testified that his father placed the trailer “on the solidest piece of ground that was part of Part 6. There was a little kind of a knoll. He parked it on the knoll and that forced anybody that was trying to get in there…to go on the wet spot which kind of, that pretty much shut people down, they quit going”. Thus, I infer that trespassing on Part 6 was serious enough, both by family members who had not sought permission to use it, and by others, that Elton Curtis was driven to take significant steps to keep people out of Part 6. Short of erecting a fence along the south side of the travelled portion of the right-of-way, which I find would have defeated the very purpose for which Part 6 was excluded, watering cattle, Elton Curtis took reasonable steps to prohibit vehicular traffic from entering onto Part 6 by taking away the only piece of relatively high ground, the knoll, so that there was no place to park a vehicle.

[180] I accept Gordon Whites evidence when he testified, with reference to the “No Trespassing” signs that were posted on Part 6, that “people were using it (Part 6)…I guess you could say that they were trespassing”. Moreover, Gordon White confirmed that people, specifically friends of Leonard Vincent, were using Part 6 as a circular driveway of sorts. In fact, there was evidence that that this activity was not just contained to Leonard Vincent’s friends. Rather, Leonard Vincent was running a home-based business selling maple syrup and/or honey. It was his customers who were also using the ad hoc, circular driveway in the manner described. Gordon White conceded that he was told by Leonard Vincent that he could use Part 6 in the same manner; however, Leonard Vincent at no time sought the permission of the Defendants in order to do so.

[181] I accept Borden Curtis’s evidence when he testified that Part 6 was not the only point where people historically accessed the lake from the right-of-way. The Wilsons, the predecessors to the Plaintiffs in title to 707 Daytown Road, accessed the lake at a point next to what is now referred to as the Angus property, previously owned by John Gerrettsen. While Borden Curtis admitted to seeing the Wilsons launch a canoe from Part 6 and go for a paddle, I find that the Wilsons stored their 12’ aluminum, “car top” boat next to the Wilsons’ property and access the lake with that boat from there, not Part 6.

[182] I accept Maurice Curtis’s evidence when he testified that, prior to John Curtis building up Part 6, there was access to the lake at that point (Part 6), “If you didn’t mind walking…I suppose. But George Wilson, he used to leave his boat beside the Angus property…It’s reasonably good…there’s a bit of a bank, but it’s not a bad bank. He (George Wilson) used to pull his…12 foot, car top boat…up there. That’s where he put his boat….” Maurice Curtis further testified that George Wilson tied his aluminum, 12 foot, car top boat to a tree. He also marked on Exhibit A17, on the third photograph behind the tab, dated 1991, a green line indicating the path to the lake that was used for access, as well as marking in blue the location where boat access occurred. Thus, I find that Part 6 was not the only point of access to the lake from the right-of-way for the Wilsons, the predecessors in title to the Plaintiffs. Rather, the location identified both by Maurice Curtis and Borden Curtis, next to the Angus cottage, was used by the Wilsons. Further, I infer that the Wilsons used the alternate point of access to launch their 12 foot, aluminum, car top boat because the entry to that area, from the right-of-way, was more reasonably accessible by vehicle. In contrast, Part 6, on the weight of the evidence, was essentially at the same level as the lake, damp, muddy and inhabited by cattle for substantial periods of the year. Accordingly, accepting that the Wilsons launched a canoe from Part 6, I infer that they did so only by foot, because Part 6 was inaccessible by vehicle, for all of the reasons which I do accept.

[183] Therefore, I reject the submission by counsel for the Plaintiffs that with the admission from Borden Curtis that he saw the Wilsons launch a canoe from Part 6, there was no need to call George Wilson to testify regarding use of the alternate access point. The Plaintiffs are asserting that Part 6 is effectively an extension of the right-of-way for vehicular traffic to the north shore of Upper Beverly Lake. It is the Plaintiffs’ burden to make out their case of an express right-of-way for vehicular traffic over the Defendants’ lands, specifically Part 6. I find that the Wilsons would have portaged their canoe to the north shore of Upper Beverly Lake because, prior to the improvements of 1995, the weight of evidence leads me to conclude that they would have gotten their vehicle stuck on Part 6, had they attempted to drive to the shoreline. Rather, the Wilsons drove their 12 foot, aluminum, car top boat to the point of access next to what is now referred to as the Angus property, because, in my view, the approach to that access point was drier and more conducive to vehicular traffic. The Plaintiffs could have called the former Attorney General of Ontario, John Gerrettsen, who resides close by in Kingston, Ontario, to testify on this point. Moreover, the Plaintiffs could have called George Wilson, who resides even nearer in Gananoque, Ontario, to testify regarding the alternate point of access to the lake. One or both of these witnesses may have cleared up this ambiguity as between the two point of access to the north shore of Upper Beverly Lake off the right-of-way. The Plaintiffs chose not to call either of these witnesses.

[184] I accept Leonard Vincent’s evidence when he testified that he never discussed his use of Part 6 with the Curtis family because “John Curtis was my brother-in-law and I assumed that I had the right to use it”.

[185] I accept William Carbino’s evidence when he testified that, as a childhood friend of the Curtis boys, he never thought to ask permission to use the right-of-way or Part 6 to access the lake for ice fishing. As he explained, he was particularly close with Borden and Ernie and “no one objected to us using it”.

[186] I accept Gordon White’s evidence when he testified to being “great friends” with the Curtis family while growing up, and his explanation of how they, as children, road their bikes down the right-of-way, and later drove vehicles down the farm lane. Further, I accept his evidence that he was always with the Curtis’s when he used the right-of-way and Part 6, as a boy. Against this backdrop, Gordon White testified that he never asked permission to use the right-of-way or Part 6, even prior to purchasing 707 Daytown Road, because “it was a given”. Further, after having purchased 707 Daytown Road, Gordon White testified that, in his mind, nothing had changed: “We just naturally used it…I didn’t even know that I needed a right-of-way…We always just called it going back to the Curtis’s fishing”.

[187] I accept Elizabeth Cole’s evidence when she testified that, to extent that she used the right-of-way and Part 6, she did so with Fred Cole, who was related to the Curtis family by marriage, and thus presumed that he had permission to be on the property. That said, the weight of the evidence establishes, in my view, that Fred Cole became a nuisance by attempting to access Part 6 by vehicle in the years prior to 1995, he became stuck and had to be towed out by Elton Curtis. In an effort to keep Fred Cole out of Part 6, Elton Curtis began to charge him a towing fee. To recall, Maurice Curtis testified “dad would go back and tow him out and he kept telling him to stop doing it…finally he made him pay 20 bucks to get towed out, so that kind of taught him and he quit parking there”. Further, Maurice Curtis was not shaken when he was challenged in cross-examination on this point. It was suggested to him that people were attempting to access the lake in vehicles using Part 6 in the 1960’s and up until 1990, even after Elton Curtis had placed the trailer on the knoll. To this, Maurice Curtis replied, “Not with vehicles, no. When they…did use vehicles they got stuck…and it scares the cattle…keep the cattle away from the water…Dairy cows need water”.

[188] I accept Maurice Curtis’s evidence when he testified that “there were all kinds of trespassers going in (Part 6) trying to catch frogs and stuff like that…they might walk across…cottage lots…they’d go across their lots and anywhere on the farm…You’d often see them over on the field next to White’s (farm) there….”

[189] Thus, to the extent that individuals may have used the right-of-way and/or Part 6 from a historical perspective, in my view, they fall into one or more of three categories:

(1) Family members who presumed, rightly or wrongly, that they had permission to use the property, examples being Fred Cole, Elizabeth Cole and Leonard Vincent; (2) Friends who presumed, rightly or wrongly, that they had permission to use the property, examples being William Carbino and Gordon White (in the years prior to purchasing 707 Daytown Road); and (3) Trespassers.

[190] I accept Gordon White’s evidence given on Discovery that he would access the lake from Part 6 for ice fishing “maybe a dozen times” a year when the fish “used to bite pretty good”, which was reduced to “maybe three at most”, in the last few years. I reject his evidence given at trial that the number of fishing outings from Part 6 would be as many as twenty times a year. In any event, I accept his evidence that he never used the right-of-way or Part 6 in the summertime, because that is when the cows would be in there.

[191] I accept Gordon White’s evidence that both the right-of-way and Part 6 are not “directly” connected to his property. Further, the right-of-way and Part 6 are “not an absolute necessity” with respect to the use of his property. Rather, I accept Gordon’s White’s description that the right-of-way and Part 6 provide “therapeutic and recreational use”. I also accept Gordon White’s concession that his “therapeutic and recreational use” stands in contrast to those residents who live along the right-of-way and require use of the right-of-way to access their property from the Daytown Road.

[192] I accept Sandra Griffin’s evidence when she testified that, to the extent that boats were launched from Part 6, it was her husband, John Curtis, who put the boats in during the spring and took them out in the fall, using a tractor, and that it was “something that my husband did because it was part of the farm property”.

[193] I accept Maurice Curtis’s evidence when he testified that he would not consider that his brother, John Curtis, launched boats from Part 6 “in the seventies”. As he put it, “You couldn’t put a trailer in there if you’re going to unload a boat. You’d wind up getting stuck for that, too”.

[194] I accept Borden Curtis’s evidence when he testified that the water off Part 6 was not good for fishing because, as he described, in most spots there is “only a foot of water”, at the end of Part 6. Thus, I accept his evidence that the area was too shallow to fish bullheads, as Gordon White testified that he may have done on a couple of occasions in 1993. Rather, I accept Borden Curtis’s evidence that they fished for bullheads in front of Leonard Vincent’s property.

[195] I accept Borden Curtis’s evidence when he testified that he placed two rocks in front of the gate leading from Leonard Vincent’s property onto Part 6, not for the purpose of impeding Gordon White. Instead, he placed the stones there to stop unknown individuals from using Part 6 as a circular driveway. I find that this became particularly problematic given the volume of traffic that was attending at Leonard Vincent’s residence to make purchases or pick-up items from his home-based business. I accept Borden Curtis’s evidence when he testified that he spoke with Leonard Vincent about this, and that Leonard Vincent apologized for allowing people to use Part 6 in the manner described. Notably, Leonard Vincent was never recalled by the Plaintiffs to address this issue.

[196] I accept Gordon White’s evidence that the placement of the rocks would not have affected his access to the lake from Part 6, or his ability to park on the west side of Part 6.

[197] I reject Robert White’s evidence that, from his perspective, the rocks and the culvert were placed on the west side of Part 6 to prevent his father from parking there, which his father did not agree with.

[198] I reject Robert White’s evidence that he was on Part 6 both as a boy, and after his parents purchased 707 Daytown Road. Rather, I prefer Gordon White’s evidence that Robert White had never been down there (Part 6) before. This finding is consistent with the fact that Robert White was apparently oblivious to the fact that significant improvements had been made to Part 6, which led to his incorrect assumption that the culvert on the west side of Part 6 had been placed there to impede his father from parking.

Conclusions

[199] Elton Curtis specifically excluded and designated Part 6 “For Cattle Use” pursuant to the field notes of K.M. Wiseman O.L.S., dated 1962 for purposes of making application to sever cottage lots from the farm.

[200] The 40’ x 193’ strip of land running from the right-of-way to the north shore of Upper Beverly Lake was expressly intended for cattle to water at the lake, from the May long weekend to the early fall of each year.

[201] This use, cattle roaming freely to water at the lake, as described, has continued from the early 1960’s until well after the Plaintiffs purchased 707 Daytown Road in 1990. Moreover, this use is inconsistent, and in conflict, with the grantor intending that vehicular access should extend from the right-of-way over Part 6 to the north shore of Upper Beverley Lake, for at least two reasons:

1. The presence of vehicles on Part 6 would frighten the cattle away from the water, thus defeating the purpose of watering them there; and
2. The conditions created by the cattle on Part 6, prior to the 1995 improvements, which were described as, inter alia, wet, damp, marshy, a bog, at the level of the lake etc., prohibited vehicles from entering onto Part 6, lest they should become stuck in the mud.

[202] Vehicles did become stuck on Part 6, to the extent that Elton Curtis:

1. Imposed a towing fee as a deterrent to keep vehicles out of Part 6; and
2. Placed a trailer on the only high piece of ground where a vehicle could park, the knoll, which functioned as a deterrent to keep vehicles out of Part 6, until 1995 when it was removed and the improvements were made.

[203] Thus, I conclude that Elton Curtis could never have intended that vehicular traffic would extend from the right-of-way over Part 6 to the north shore of Upper Beverly Lake, because the evidence shows that he did everything reasonably possible to keep vehicles out of Part 6.

[204] The original grant was to Annie Mendelson, who never occupied 707 Daytown Road. Accordingly, there is no evidence regarding her use of the right-of-way or Part 6.

[205] The Wilsons occupied 707 Daytown Road from 1978 to 1990, when they sold to the Plaintiffs. There is evidence of their use of both the right-of-way and Part 6.

[206] The Wilsons drove their vehicle down the right-of-way, and launched their canoe at Part 6. There is no evidence to show that they drove their vehicle onto Part 6 in order to put their canoe in the water. There is, however, evidence that they returned their vehicle to the Daytown Road before heading out in their canoe for a paddle. Thus, based on the facts set out above, I inferred that the Wilsons portaged their canoe to the north shore of Upper Beverly Lake, because Part 6 was not accessible by vehicle. Moreover, they returned their vehicle to the Daytown Road so as not to block others who might attempt to go by them in a vehicle, on the right-of-way that was estimated to be approximately 10’ wide.

[207] The Wilson did, however, store and launch a larger, 12’ aluminum, car-top boat, next to what is now known as the Angus property. In my view, they did so because this alternate point of access to the lake was more conducive to vehicular traffic than Part 6, based on all of the facts as found above.

[208] George Wilson was never called to explain why he chose to store and launch his larger boat at this alternate point of access to the lake, as opposed to launching the canoe at Part 6. In my view, it was the Plaintiffs obligation to call this evidence to explain away the difference.

[209] The Plaintiff, Mary Magwood, was, taking her evidence at its highest, an infrequent walker along the right-of-way. Further, walking along the right-of-way and over Part 6 to the lake may have conferred an advantage on her, but nothing more. The same can be said of Gordon White’s relatively few ice fishing outings each winter. To use his words, use of the right-of-way and Part 6 was “therapeutic and recreational”.

[210] There is no question that the Plaintiffs are the dominant tenement and that the Defendants are the servient tenement.

[211] However, the easement as claimed does not, in my view, “accommodate” the dominant tenement, on all of the evidence. In Temma Realty, supra, at para 16, the court adopts the following passage:

“…a right enjoyed by one over the land of another does not possess the status of an easement unless it accommodates and serves the dominant tenement, and it is reasonable necessary for the better enjoyment of that tenement, for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between the two contracting parties”.

[212] Put simply, Part 6 has no necessary connection to 707 Daytown Road. Part 6 confers a mere advantage on the Plaintiffs, nothing more.

[213] There is no question that the dominant and servient owners are different persons.

[214] Further, in my view, the right over land in this case does not amount to an easement because it is incapable of forming the subject-matter of a grant. Put simply, the Plaintiffs did not establish, on the evidence, the nature of the locus in quo of the servient tenement over which the right of way was granted as it existed at the date of the grant. To reiterate, Elton Curtis could not have intended that access to the north shore of Upper Beverly Lake, over Part 6, would be granted by vehicle, for all of the reasons set out above. Moreover, Annie Mendelson never accessed the lake for any reason, and the Wilsons accessed the lake at an alternate point when a vehicle was required to carry a larger, car-top boat. They did not use their vehicle to access the lake by way of Part 6.

[215] For all of these reasons, I would dismiss the Plaintiffs’ claim.

[216] I would grant the Defendants (Plaintiffs by Counterclaim) the relief set out in paragraphs 16 (a), (b) and (c) of their Counterclaim.

[217] In addition, and on the consent of the Defendants, I would order that the Plaintiffs have a right of access by foot over Part 6 to the north shore of Upper Beverly Lake, which is a personal licence only and not transferable, absent the consent of the Defendants. Likewise, on the consent of the Defendants, I would order that the Plaintiffs have a right to park a vehicle, no larger than a full-sized pick-up truck, on the west side of Part 6, ten feet to the east from the western boundary, and ten feet to the south of the travelled portion of the road, which is a personal licence only and not transferable, absent the consent of the Defendants.

[218] As agreed by counsel, I would assess damages of $50,000.00 payable to the Defendants by the Plaintiffs, in accordance with the Counterclaim.

[219] If the parties cannot agree on costs, I will entertain submissions on a date and at a time as arranged by counsel with the Trial Co-ordinator. Further, if counsel determine that a Rectification Order is needed, I will hear submissions on that issue as well.

The Honourable Mr. Justice B. W. Abrams Released: April 7, 2017