Fallon v. Wilson, 2017 ONSC 5461

CITATION: Fallon v. Wilson, 2017 ONSC 5461

COURT FILE NO.: 43/17

DATE: 20170920

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Charles Fallon, Anne Morasse and Gordon Muirhead, Estate Trustees for the Estate of Ellen Muirhead, Catherine Poole and Frances Louise Davies

Applicants

– and –

James Charles Wilson and Sandra Emanuella Wilson

Respondents

COUNSEL:

W. Jelle Bosch, for the Applicants

G. Charles S. Morison, for the Respondents

HEARD: August 15, 2017

ruling on application

Boswell J.

Introduction

[1] Sandra Wilson owns of a parcel of land on Elder Street in the Kawartha Lakes Region. Her lot enjoys direct waterfront access to Sturgeon Lake. The applicants are other lot owners on Elder Street, but their lots are all on the opposite side of the street from Ms. Wilson’s lot. In other words, they do not enjoy direct waterfront access. To gain access to the lake, the applicants have historically relied on what they have always understood to be rights-of-way over Ms. Wilson’s property.

[2] Back in the halcyon days of the 1970s life was grand on Elder Street. Lot 12 was vacant and it was used by many of the local property owners as a route of unfettered access to the lake. Get-togethers were held by locals on picnic tables located on the lot. And a number of people used a dock that serviced it.

[3] Lot 12 was owned by a group of individuals whose title dated back to the 1940s. In 1983 they sold it to two locals, Robert and Bonnie Wilson. Notwithstanding the change in ownership, it appears that life at lot 12 remained business as usual for another 16 years. Numerous other lot owners continued to use Lot 12 essentially as a publicly-owned property. They crossed it to access the lake; used its dock; swam; and picnicked on it.

[4] But, like all good things, the open, public use of Lot 12 came to an end. The triggering event appears to have been a discussion amongst the locals about making repairs to the dock. It seems that the Wilsons were put off by the liberties being taken with their land and so they took a number of steps. The dock disappeared, as did the picnic tables. Cedar trees were planted across the lot and “No Trespassing” signs were erected across its front. In 2002, the Wilsons fenced off the lot entirely, save for the westerly twelve feet running perpendicularly from the lake to Elder Street.

[5] Some fifteen years later, the applicants appeared in motions court seeking declarations against Sandra Wilson[^1] – the current owner of the lot – that they are lawfully entitled to the following rights-of-way over Lot 12:

(a) Frances Davies: the westerly 12 feet

(b) Michael Fallon: the westerly 12 feet

(c) Estate of Ellen Muirhead: the west ½ of the lot

(d) Catherine Poole: the westerly 12 feet

[6] The unfortunate reality is that only one of the applicants has a valid right-of-way over Lot 12[^2]. The following reasons explain why.

THE PARTIES’ POSITIONS

[7] Each of the applicants claims to have a deeded right-of-way over part of Lot 12. A deeded right-of-way is sometimes referred to as an easement by express grant. Each has filed an affidavit setting out the particulars of the deed by which he or she acquired title to their own individual lots and to their purported right-of-way.

[8] For ease of reference, I note that Elder Street runs along the south side of Sturgeon Lake. Lot 12 is part of registered Plan 144, which includes lots on the north side of Elder, adjacent to the lake. The applicants are all owners of lots on the south side of Elder. Their lots are part of registered plan 246.

Frances Davies

[9] Ms. Davies owns Lot 11, Plan 246. Her lot is located almost directly across from Lot 12, Plan 144. She acquired title on May 2, 1977 from Wayne and David Hill by a deed registered as Instrument No. 115678. The description of the deeded lands includes the following:

Together with a right-of-way over the westerly 12 feet of Lot Number 12, according to registered Plan Number 144 for the said Township of Fenelon.

[10] Ms. Davies relies on her Deed to establish her entitlement to a right-of-way over Lot 12.

Michael Fallon

[11] Mr. Fallon owns Lots 4 and 5 on Plan 246. He acquired title on February 11, 2015 by a Transfer registered as Instrument No. KL95775. His Transfer describes the lands he acquired as “Lt 4-5 PL 246 T/W VT72472”.

[12] Instrument VT72472 was a Deed acquired in June 9, 1964 by Wells and Helen Cooper, who are predecessors in title to Mr. Fallon. The description of lands set out in Instrument VT72472 includes the following:

Together with a right-of-way over the westerly twelve feet of Lot 12, according to Registered Plan Number 144 for the Township of Fenelon.

[13] Mr. Fallon relies on his Transfer, including by reference the description of lands in Instrument No. VT72472 to establish his entitlement to a right-of-way over Lot 12.

Ellen Muirhead

[14] Mrs. Muirhead passed away before this application was heard. Her interest in these proceedings was transmitted to her Estate Trustees, Ann Morasse and Gordon Muirhead.

[15] Ms. Muirhead acquired title to Lot 1, Plan 246, together with her husband, Duncan Muirhead, on June 7, 1972 by way of a Deed registered as Instrument No. A23587. The description of the lands subject to her Deed includes the following:

TOGETHER with a right-of-way for the Grantees, their heirs, executors and assigns over the west half of Lot 12, Plan Number 144, for the purpose of access to the shore of Sturgeon Lake.

[16] Mrs. Muirhead’s estate relies on Instrument No. A23587 to establish an entitlement to a right-of-way over Lot 12.

Catherine Poole

[17] Ms. Poole only recently acquired title to her lands – Lots 8 and 9, Plan 246. She obtained title by way of a Transfer from Terrence Hawery, an original applicant in these proceedings. Mr. Hawery’s interest in these proceedings was transmitted to her by virtue of the order of Woodley J. dated June 13, 2017.

[18] I have not been provided with a copy of the Transfer by which Ms. Poole acquired title to Lots 8 and 9, Plan 246. I do have a copy of Mr. Hawery’s Transfer. He acquired the lands on February 28, 1990 by a Transfer registered as Instrument No. 263658.

[19] Mr. Hawery’s Transfer describes the subject lands as including the following:

TOGETHER WITH a Right-of-way for all purposes over the westerly twelve feet from front to rear of Lot 12, Plan 144.

[20] Ms. Poole relies on this description of the lands to support her claim to a right-of-way over Lot 12.

[21] The applicants’ counsel took the position that he expected the claims of the applicants to be uncontroversial based on the following factors:

(a) The title documents I have just referenced;

(b) The historical use of Lot 12;

(c) The fact that the Wilsons – including the current owner as well as her parents-in-law, Robert and Bonnie – have never complained about anyone’s right-of-way;

(d) The absence of any indication that any of the Wilsons at any time instructed counsel to take any legal steps with respect to any right-of-way, from which counsel urged the court to infer that there must be no problem; and,

(e) The Wilsons erected a fence enclosing Lot 12, other than the westerly twelve feet of the lot, thereby signifying that they not only were aware of the outstanding rights-of-way, but also signifying that they were abandoning that part of their lands.

[22] Counsel asked that the court recognize the rights-of-way and order that the respondents remove the fencing which impedes the access of the Muirhead estate to its right-of-way over the entire west half of Lot 12. He also asked that the existing deeded rights-of-way be extended over a small parcel of land along the waterfront deeded to the respondents by the Crown in March 2009. Briefly, the waters of Sturgeon Lake have receded such that there is now more exposed land than was the case in the original metes and bounds description of the lands. In 2009 the Crown conveyed title to the respondents to the additional exposed land along the water’s edge. The applicants want to make it clear that their rights-of-way extend all the way down to the water’s edge.

The Respondents

[23] The Respondents’ first answer to this application came by way of an affidavit sworn June 9, 2017. In that affidavit they did not dispute the existence or validity of the applicants’ various rights-of-way, other than to argue that Mrs. Muirhead’s right-of-way was improperly described as the west ½ of Lot 12, when it should have been the westerly 12 feet of Lot 12.

[24] In terms of the additional lands that were acquired from the Crown in 2009, the respondents deposed that they “have always been willing to grant a right-of-way adjacent to the existing right-of-way over the westerly 12 feet of Lot 12…so that the other Owners have unimpeded access to Sturgeon Lake.

[25] The June 9th affidavit was evidently prepared before a full title search was conducted of each of the lots involved in these proceedings. Subsequently, the respondents swore an affidavit on July 21, 2017 in which the validity of each of the asserted rights-of-way was put in issue.

[26] Counsel to the respondents submitted at the hearing of the motion that none of the applicants had a valid right-of-way. He urged the court to essentially ignore the respondents’ position as set out in their first affidavit and make a determination based on the prevailing law and the title search results.

[27] In relation to each of the applicants, the respondents assert that the initial conveyances of the purported rights-of-way failed to define a dominant tenement and are therefore no more than personal licenses that expired with the death of the licensees. Moreover, there are some basic deficiencies in some of the purported grants that make them nullities from the outset.

THE LEGAL FRAMEWORK

[28] Regrettably, neither counsel provided the court with a factum or book of authorities in support of their positions.

[29] The way in which the application is framed, it turns on the court’s determination of whether the applicants, or any of them, have validly acquired rights-of-way over Lot 12 by way of express grants.

[30] Counsel to the respondents submitted that there are four prerequisites to the creation of a valid right-of-way by express grant:

(i) There must be a dominant tenement and a servient tenement;

(ii) The right-of-way must accommodate the dominant tenement;

(iii) The servient tenement must be different than the dominant tenement; and,

(iv) The right must be capable of forming a grant.

[31] Counsel cited as authority the English case of Re Ellenborough Park, [1956] Ch 131, [1955] 3 All E.R. 667 (EWCA). I have determined that Re Ellenborough Park has been accepted as the law in Ontario by the Court of Appeal on two occasions. The first, a decision by then Chief Justice McMurtry in Hodkin v. Bigley, 1998 CarswellOnt 4477. The second, a decision by Austin J.A. in Caldwell v. Elia, 2000 CanLII 5672 (ON CA), 2000 CarswellOnt 587. It would appear to be good authority in Ontario.

[32] The concept of dominant tenements and servient tenements is important to the disposition of the application. Counsel were not in agreement about what those terms mean. The respondent’s counsel submitted that the terms refer to separate parcels of land. The term dominant tenement refers to the lands receiving the benefit of the right-of-way. The servient tenement refers to the lands burdened by the right-of-way. The applicant’s counsel submitted that the terms reflect different parts of a single parcel of land. In his submission the term servient tenement refers to the area of land subject to the right-of-way, while the term dominant tenement refers to the balance of the parcel not subject to the right-of-way. For instance, if Lot 12 were subject to a right-of-way over the west twelve feet of the lot, the servient tenement would be the west twelve feet and the dominant tenement would be the balance of the lot.

[33] The applicants’ counsel is simply wrong in his interpretation. The essence of a right-of-way is the diminution in the ownership rights associated with one parcel of land with a corresponding accretion in the ownership rights incidental to another parcel of land.

[34] A right-of-way is a form of easement. An easement is “an incorporeal hereditament, being an inheritable, non-possessory ownership interest in land”: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007.

[35] Justice Paul Perell described the basic features of an easement in his helpful article, The Creation of Easements, (2005), 30 Adv. Q. 487, as follows:

It is a right of usage annexed to a parcel of land, which is described as the dominant tenement. Having an easement permits the owner of the dominant land to require the owner of another parcel of land, which is described as the servient tenement, to suffer some use on that land. An example of an easement is a right-of-way where the dominant property landowner has a right to pass across the land owned by another…

It is important to differentiate an easement from a license because, when a right of usage fails to constitute an easement, it may constitute a license, which is a personal, essentially contractual, right to use another’s land, but that is not an ownership interest in the land. A license is a grant of authority to enter upon another’s land for an agreed purpose where such entry would otherwise be a trespass…Much of the case law about the creation of easements arises because a license, not being an interest in land, does not run with the land and does not bind successor owners of the servient property.

[36] An easement must have an identifiable dominant tenement: see Re Toscano and Dorian, 1965 CanLII 312 (ON CA), [1965] 2 O.R. 514 (C.A.) and P.M. Perell, The Creation of Easements, as above. Moreover, the grantee of an easement must have an interest in the dominant tenement at the time the grant of easement is made: Willman v. Ducks Unlimited (Canada), 2004 MBCA 153.

[37] The respondents’ counsel submitted that it is necessary, in the original grant, for the grantor to specifically describe the lands that comprise the dominant tenement. He cited the Court of Appeal’s decision in Secretov v. City of Toronto (1973), 1973 CanLII 712 (ON CA), 33 D.L.R. (3d) 257 in support.

[38] Secretov involved a question of the enforcement of restrictive covenants that purported to preclude the cutting down of trees or erection of a building on a particular parcel of land in the City of Toronto. In upholding the trial judge’s refusal to enforce the covenants, Schroeder J.A. held as follows, at para. 12:

The principal ground upon which the learned Judge held the purported restrictive conditions to be invalid was that the covenantee did not specify in the covenant with which the servient land was intended to be burdened the dominant land to be benefited thereby… The law of Ontario and of the other common law Provinces plainly require that the dominant land for the benefit of which a restrictive covenant is imposed in a deed from the covenantee to a purchaser of other lands of the covenantee must be ascertainable from the deed itself; otherwise, it is personal and collateral to the conveyance as being for the benefit of the covenantee alone and not enforceable against a successor in title to the purchaser. This was laid down by Judson, J., in Galbraith v. Madawaska Club Ltd., supra, in the plainest terms the minimum requirement being, as the learned jurist stated, that the deed itself must so define the land to be benefited as to make it easily ascertainable.

[39] In his article, The Creation of Easements, Perell J. said entirely the opposite. He wrote that it is “not necessary that the dominant tenement be described in the grant of easement, provided that it can be identified through extrinsic evidence.” He cited as support, the Supreme Court’s decision in Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] 1 S.C.R. 49.

[40] It is difficult to distill the facts in Laurie into a few lines. Essentially, the case involved a dispute about the validity and parameters of a right-of-way over a 30’ strip of land that ran between two subdivisions. The lands in issue at one time were a buffer zone between a subdivision and a farm and were used as a lane to access certain farm buildings. The owner of the 30’ strip, Mr. Sheppard, was also the owner and vender of the subdivision lots. In 1925 he made the following conveyance to the owner of the farm property, Mr. Smith:

In consideration of the sum of one dollar the receipt of which is hereby acknowledged I hereby give to John Smith of the Township of North Gwillimbury in the County of York and Province of Ontario his heirs executors and assigns a perpetual right of way over Lot thirty-three (33) Plan one hundred and three (103) registered said Lot & Plan being in the Township of North Gwillimbury in the County of York and Province of Ontario. This is to be binding on my heirs executors or assigns.

[41] Subsequently, the Smith farm was subdivided into lots and the question at issue was whether these new lots enjoyed an easement over the 30’ strip, as successors in title to Mr. Smith.

[42] The appellant in Laurie asserted that the grant from Sheppard to Smith amounted to nothing more than a license on the basis that there was no dominant tenement described in the grant. As such, it was argued, the conveyance amounted to nothing more than an “easement in gross”, which is unknown to Canadian law, and in the result the grant was in the nature of a license.

[43] Kellock J., for a unanimous court, held that extrinsic evidence could be considered by the court for the purpose of ascertaining the dominant tenement as well as for the purpose of construing the parties’ intentions as to the nature and extent of the rights conveyed.

[44] I am not certain how Laurie is to be reconciled with Secretov. Secretov involved restrictive covenants, sometimes referred to as negative easements. Laurie involves a right-of-way, which is a positive easement. Courts have, historically, demonstrated an inclination to enforce negative easements narrowly and begrudgingly, which may go some of the way to explaining the result in Secretov. In any event, Laurie remains good law and I am bound to follow it.

ANALYSIS

[45] It is necessary to examine the chain of title to each of the properties involved in this proceeding in order to appreciate how and when the purported easements arose. I will begin with the servient tenement: Lot 12, Plan 144, which is currently owned by the respondent, Sandra Wilson.

Lot 12, Plan 144

[46] Prior to his death on March 20, 1940, William J. McCarroll was the registered owner of Lots 5, 6, 12 and 13 on Plan 144, in the Township of Fenelon (now Kawartha Lakes). I will refer to these lands as the “McCarroll lands”.

[47] Mr. McCarroll died intestate. His estate administrator conveyed an undivided one-half interest in the McCarroll lands to a group of four individuals: Zetta Hewitt, Viola Tully, Roy McCall and Jacob McCall. The administrator conveyed the other undivided one-half interest in the McCarroll lands to Caroline Fannie English.

[48] Caroline Fannie English died on January 12, 1958. She bequeathed all of her estate to her son, Cecil George English. He died on September 24, 1960, intestate. His interest in the McCarroll lands passed to his heirs: his widow, Jennie Alda English, and his children, Doreen Helen Robinson and Gerald Ernest English. As at September 1960, therefore, there were seven co-owners of the McCarroll lands.

[49] On May 27, 1980 the seven co-owners of the McCarroll lands conveyed Lot 12, Plan 144 to Jacob McCall alone. In turn, he conveyed it to Bonnie and Robert Wilson on April 6, 1983 by Instrument No. 177370 which provided that title was:

Subject to rights-of-way over the easterly and westerly 12 feet in perpendicular width from front to rear of the said Lot to those entitled thereto.

[50] On June 11, 2002 Bonnie and Robert Wilson conveyed Lot 12, Plan 144 to the respondents. Their deed included a similar “subject to” provision to that included in Instrument No. 177370. The respondents conveyed Lot 12, plus Parts 1, 2 and 3 on Plan 57R-9651 to the respondent, Sandra Wilson alone on February 26, 2013. Plan 57R-9651 is a reference plan that illustrates the additional lands along the water’s edge conveyed to the respondents by the Crown in 2009.

Easements Registered against Lot 12, Plan 144.

[51] The title registry to Lot 12, Plan 144 reveals two grants of easements since William McCarroll’s death in 1940.

(i) Easement to Lot 9, Plan 246

[52] On November 7, 1951, the then five co-owners of the McCarroll lands granted a right-of-way to Zetta Hewitt over the westerly 12 feet of Lot 12 by Instrument No. 14798. No dominant tenement was otherwise described in the grant. At the time, however, Zetta Hewitt was the registered owner of Lot 9, Plan 246, which is currently owned by Catherine Poole.

[53] The respondents take the position that no valid easement was granted in view of the absence of a properly described dominant tenement. But in accordance with the Supreme Court’s ruling in Laurie, it is not a strict requirement that the dominant tenement be described in the grant. This court may have regard to extrinsic circumstances in order to ascertain the dominant tenement.

[54] It would appear to me, based on the surrounding circumstances, that the dominant tenement was clearly intended to be Lot 9, Plan 246. The lands in issue – both Plan 144 and Plan 246 – are situated in a relatively small enclave of lots near Sturgeon Lake. Plan 144 lots have water access, while Plan 246 lots do not. Ms. Hewitt was a common owner of Lot 9, Plan 246 and Lot 12, Plan 144. The right-of-way in issue was clearly intended to facilitate access to Sturgeon Lake to Lot 9, which is on the south side of Elder Street, without its own direct water access.

[55] In my view, the right-of-way in favour of Lot 9, Plan 246, was validly created, having regard to the Ellenborough Park factors.

[56] It is interesting to note that Ms. Hewitt conveyed Lot 9, Plan 246 to Berenice Chapman and John H. Chapman on November 25, 1958. The conveyance included a right-of-way over Lot 12, Plan 144 but it was described as the west ½ of the lot, which was a misdescription. On November 26, 1958, the owners of the McCarroll lands conveyed a right-of-way over the westerly 12 feet of Lot 12, Plan 144 to Mr. and Mrs. Chapman. This grant was apparently necessitated by virtue of the misdescription of the right-of-way in the transfer from Ms. Hewitt to the Chapmans.

[57] Again, though the dominant tenement may not have been described, I am satisfied that it was Lot 9, Plan 246 for the reasons set out.

(ii) Easement to Lot 4, Plan 246

[58] On June 9, 1964, five of the co-owners of the McCarroll lands purported to grant an easement over the westerly 12 feet of Lot 12 to Jacob and Roy McCall (two of the co-owners of the McCarroll lands) by way of Instrument No. 72469.

[59] The respondents assert that the grant was a nullity for two reasons: (1) it did not properly describe the dominant tenement; and (2) Jacob and Roy McCall, who were each 12.5% owners of the McCarroll lands, did not sign the grant.

[60] At the time of the purported grant, Jacob and Roy McCall were the registered owners of Lots 2, 4 and 15 on Plan 246. Again, each of those lots was on the south side of Elder Street. The McCalls were co-owners of both the servient tenement and these other three lots, all of which required access to the lake through another property. It seems to me that the dominant tenements were intended to be each of Lots 2, 4 and 15.

[61] Having said that, the grant was not properly executed. The only evidence I have before me is that only 5 of the 7 co-owners of Lot 12, Plan 144 actually executed the grant. It seems axiomatic that each and every co-owner must execute the grant before the easement is properly created. The applicants’ counsel made no argument against this assertion and, in my view, it carries the day. The grant in favour of Lot 4, Plan 246 is a nullity.

[62] I move now to a brief examination of the title chains to each of the lots presently owned by the applicants.

Lot 11, Plan 246 [The Claim of Frances Davies]

[63] Viola Tully became the sole registered owner of Lot 11, Plan 246 on May 21, 1951. Prior to this time, there is no evidence that any easement of any sort had been created in favour of this lot over Lot 12, Plan 144.

[64] Ms. Tully conveyed Lot 11, Plan 246 to C.J. Dodsworth on July 18, 1957. In this transfer, Ms. Tully purported to grant Mr. Dodsworth a right-of-way over the westerly 12 feet of Lot 12, Plan 144. At the time, there were five co-owners of Lot 12. Four of those co-owners did not sign the grant. The grant was not registered against title to Lot 12, Plan 144. In my view, it was a nullity due to improper execution. Moreover, the lack of registration meant that no purchaser of Lot 12, Plan 144 would ever have notice that the land was subject to an easement in favour of Mr. Dodsworth or his successors in title to Lot 11, Plan 246.

[65] Ms. Davies is a successor in title to Mr. Dodsworth. She acquired title to Lot 11, Plan 246 in May 1977. At no time between July 1957 and the present has a properly executed grant of easement been made in Ms. Davies’ favour.

[66] In my view, Ms. Davies does not have an easement by express grant over Lot 12, Plan 144. She may well have a claim to a prescriptive grant or a claim to proprietary estoppel. These forms of relief were not pleaded nor argued and I leave them as open questions for another day.

Lots 4 and 5, Plan 246 [The Claim of Michael Fallon]

[67] I earlier referred to the failed grant of easement in favour of Jacob and Roy McCall, who are Mr. Fallon’s predecessors in title. At no time since that failed grant in 1964 has another grant been made to Mr. Fallon or any of his predecessors in title.

[68] In my view, Mr. Fallon does not have a valid easement by express grant.

[69] Again, I say nothing about any possible claims he may have to an easement by prescriptive grant or proprietary estoppel, which I leave for another day.

Lot 1, Plan 246 [The Claim of the Muirhead Estate]

[70] Caroline Fannie English obtained title to Lot 1, Plan 246 on August 21, 1947. Prior to that time, Lot 1, Plan 246 was not the grantee of any easement over Lot 12, Plan 144.

[71] On September 2, 1948, by Instrument No. 13934, Ms. English conveyed Lot 1, Plan 246 to Revera Millicent Jean Ewart Wilson. The deed purported to include a right-of-way over the west half of Lot 12, Plan 144.

[72] The parties made submissions about whether the description of the easement was in error and should have referred to the westerly 12 feet of Lot 12, Plan 144. If I had to resolve the issue, I would find that it the easement was improperly described, based on the extrinsic circumstances. The purpose of the easement was undoubtedly to permit water access to the owner(s) of Lot 1, Plan 246. It would appear to me that the westerly 12 feet was always intended for that purpose – to allow landowners on the south side of Elder Street access to the lake – even though some of the purported grants of easement were defective. Moreover, if the easement was over the westerly ½ of Lot 12, it would effectively prevent Lot 12 from ever being used as a cottage or home, which seems to me to be an unlikely intent.

[73] That said, I do not have to decide whether the easement was misdescribed because it was never validly created. At the time Ms. English purported to grant the easement over Lot 12, Plan 144 in favour of Ms. Wilson and/or Lot 1, Plan 246, she was only one of five co-owners of Lot 12. I have no evidence that the other co-owners of Lot 12 executed the grant, or even agreed to it. Ms. English was not in a position to single-handedly create a right-of-way over Lot 12.

[74] I note that this purported grant of easement was not registered against Lot 12, Plan 144.

[75] The Muirhead Estate is a successor in title to Revera Wilson. At no time since the failed grant in 1948 has there been any further grant of an easement over Lot 12, 144 in favour of the owner(s) of Lot 1, Plan 246.

[76] In my view, the Muirhead Estate does not have a valid easement over Lot 12, Plan 144 by way of an express grant. I again make no finding as to whether it may have a claim to a prescriptive easement or propriety estoppel. I leave those issues to another day.

Lots 8 and 9, Plan 246 [The Claim of Catherine Poole]

[77] I have found above that the grant of easement in favour of Lot 9, Plan 246 is a valid and enforceable grant. Ms. Poole is a successor in title to Ms. Hewitt (and the Chapmans). In my view, she has a valid easement by way of express grant over the westerly 12 feet of Lot 12, Plan 144.

Parts 1, 2 and 3, Plan 57R-9651

[78] As I have noted, the respondents acquired a parcel of land from the Crown in 2009, described as Parts 1, 2 and 3 on registered Plan 57R-9651. Parts 1, 2 and 3 represent lands more or less exposed as a result of the recession of the water’s edge of Sturgeon Lake (I’ll refer to them as the “new lands”).

[79] Part 1 of Plan 57R-9651 represents the westerly 12 feet of the new lands, essentially as an extension of the 12 foot wide right-of-way to the water’s edge.

[80] The applicants have sought a declaration that their rights-of-way extend to the water’s edge and therefore include Part 1 of Plan 57R-9651. I have found that only Ms. Poole has a valid right-of-way. The respondents have consented to this relief at para. 16 of their affidavit sworn June 9, 2017. In the result I grant Ms. Poole a declaration that her right-of-way over the westerly 12 feet of Lot 12, Plan 144 extends to the water’s edge of Sturgeon Lake and includes a right-of-way over Part 1 of Plan 57R-9651.

Use of the Easement

[81] Since it came up in argument, I will comment briefly on the generally permitted use of the right-of-way in Ms. Poole’s favour.

[82] As Perell J. noted in his article, The Creation of Easements, as above, at page 492, the grant of an express easement includes the grant of such ancillary rights as are both reasonable and necessary for the use and enjoyment of the easement as it was contemplated at the time of the grant. I cannot delineate all of the uses that may be permitted in this instance, but clearly access to and from the waterfront, both in person and by watercraft, are reasonable and necessary for the enjoyment of the easement. The right to enter onto the easement for the purpose of repair and maintenance is also a proper ancillary right in my view. The installment and use of a dock at the end of the easement also seems to me to be reasonable and necessary and is in keeping with the historical use of the easement.

Costs

[83] If they cannot agree on costs, the parties may make written submissions to me on a 14 day turnaround. The applicants’ submissions will be due by October 4, 2017, while the respondents’ will be due by October 18, 2017. All submissions are to be delivered electronically to my assistant, Diane Massey at diane.massey@ontario.ca.

Boswell J.

Released: September 20, 2017

[^1]: The applicants in fact seek declarations against both Sandra Wilson and her husband, James Wilson. It is not clear to me why James Wilson is a party to these proceedings. I have not been persuaded that there is a lawful basis for any claim against him.

[^2]: The application was argued on the basis of easements (rights-of-way) arising by express grant only. I make no findings as to whether any of the applicants has a valid claim to a prescriptive easement or to an easement arising by way of propriety estoppel, neither of which formed part of the application or the argument before me.