Court File and Parties
COURT FILE NOS.: 17-61252 18-64406 DATE: 2018/09/25 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Margot J. Olivieri Applicant – and – Joan Henry and The Administrator of the Estate of Julie Valvasori Respondents -and- The Administrator of the Estate of Julie Valvasori Applicant – and – Margot J. Olivieri Respondent
COUNSEL: Marc A. Munro, Counsel for the Applicant (Margot J. Olivieri in first application, Respondent in second application) Dina Peat, Counsel for the Respondents (Joan Henry and The Administrator of the Estate of Julie Valvasori in first application, Applicant in second application)
HEARD: March 16, 2018 and by Written Submissions
REASONS FOR JUDGMENT
L. Sheard J.
Overview
[1] There are two applications before me. At the heart of both is a dispute over the sewer pipe (the “52 Pipe”) that runs from 52 James Street, Dundas, Ontario [1] (“52 James”) through the basement wall of 54 James Street [2] (“54 James”) (collectively “the Properties”), where it joins 54 James’ sewer pipe (the “Shared Sewer Pipe”). The Shared Sewer Pipe connects to the city sewer.
[2] Margot J. Olivieri bought 52 James in 2011 and Julie Valvasori bought 54 James in 1992. Valvasori died in 2015, and her estate is represented in these applications by Joan Henry, who is the Administrator of the Estate of Julie Valvasori (“the Estate”).
[3] In May 2016, tree roots created a blockage in the Shared Sewer Pipe. As a result, raw sewage flowed back into 54 James, filling its laundry tubs. When the raw sewage back-up was discovered, the plumbing at 54 James was shut off. In the course of searching out the cause of the blockage, the Estate discovered the Shared Sewer Pipe. Olivieri was asked not to use her plumbing until the problem was fixed. She refused, and raw sewage continued to fill the basement laundry tubs at 54 James until the roots were cleared from the Shared Sewer Pipe.
[4] After clearing the blockage, the Estate demanded that Olivieri take steps to create her own sewer connection to the city sewer. A central concern was that if there was a future blockage when no one was at home at 54 James, raw sewage would again spill into 54 James and continue to flow from 52 James, whose occupant would be unaware of the problem.
[5] Following months of negotiations, Olivieri still refused to install her own sewer connection to the city sewer and in April 2017, the Estate capped the 52 Pipe where it connected to the Shared Sewer Pipe in the basement of 54 James. That left 52 James with no sewer access and Olivieri unable to use the plumbing. After a number of days using makeshift toilets in her home, Olivieri retained a lawyer and obtained a court order that required the Estate to uncap the 52 Pipe. That order has remained in place, pending the outcome of these applications.
Relief Sought on the Applications
[6] Olivieri is content with the status quo: she does not want to build a separate sewer connection for 52 James and is prepared to contribute toward the costs of annual maintenance of the Shared Sewer Pipe in order to prevent future blockages. In her application, Olivieri seeks, in part, a declaration that she has a permanent easement for the purpose of maintaining, inspecting, altering, repairing or replacing the existing sanitary sewer line (i.e. 52 Pipe) that runs from 52 James (the “Dominant Tenement”) on or over 54 James (the “Servient Tenement”).
[7] Olivieri also seeks damages of $25,000.00 for nuisance as a consequence of the “unlawful interference with 52 James’ easement”, namely, when the Estate capped the 52 Pipe, preventing its connection to the Shared Sewer Pipe.
[8] In its application, the Estate seeks a declaration that the 52 Pipe is “trespassing” and an order that the 52 Pipe be removed and that 52 James be required to have its own connection to the city sewer system. The Estate further seeks an order that the parties apply to the City of Hamilton requesting the City to cover its share of the cost of establishing a separate sewer connection from 52 James to the city sewer. The costs not covered by the City would be shared equally by the owners of 52 James and 54 James.
[9] The evidence on the applications is that the cost to remove the 52 Pipe and to install a new sewer pipe from 52 James to the city sewer is approximately $22,450.00. The City of Hamilton would pay 50% of the cost to install a new sewer connection from the existing city sewer to 52 James’ property line. The owner of 52 James would be responsible for the other 50% as well as the cost of installing a new sewer pipe from 52 James to the property line, estimated at $14,735.00. The Estate is prepared to contribute up to $8,000.00 toward the installation of a new sewer line for 52 James and expects Olivieri to pay the estimated balance of $6,735.00. The figures used are estimates only and do not include a budget for any landscaping that 52 James might need as a result of the installation of the new sewer pipe.
[10] Installing a separate sewer pipe for 52 James is the obvious solution. Olivieri refuses. This relatively inexpensive and permanent solution would bring the Properties in line with current property standards and by-laws. It would also end the potential but real risk that a future blockage could occur when no one is home at 54 James, whose occupants could return home to find their laundry tubs or basement filled with toxic raw sewage from 52 James. It would also alleviate the need for regular dealings between the owners of the Properties respecting the maintenance and repair of the shared sewer system.
[11] Olivieri’s stated basis for her refusal to install a separate sewer line is financial: as a retired teacher she says that she cannot afford the expense and believes that a separate sewer line will not enhance the market value of 52 James.
Issues to be decided
(i) Does 52 James have a prescriptive easement over 54 James for the purpose of connecting the existing sanitary sewer line from 52 James to the city sewer line? (ii) If an easement exists, what ancillary rights are reasonably necessary to the use and enjoyment of the easement?
Analysis
What is an easement?
[12] It is undisputed that the 52 Pipe and Shared Sewer Pipe has existed since 1926 but there is no easement registered on title. In the absence of an express grant, a prescriptive easement may be established by use: an easement may be found if the claimant can demonstrate a “continuous, uninterrupted, open and peaceful use of the land, without objection by the owner, for 20 years by an owner or tenant or a person acting under his direction and control.… If the use of the property is by permission of the owner or by an act of neighbourliness, the use cannot create an easement.” [3]
[13] To establish an easement by prescriptive right, by which the dominant tenement deprives the owner of the servient tenement of the exclusive possession of its property without compensation, the claimant must provide clear evidence of continuous use and acquiescence by the servient tenement. [4]
[14] Both parties submitted photographs of the basement of 54 James. The photographs clearly show the 52 Pipe entering the basement of 54 James through the Properties’ shared basement wall and the connection with the Shared Sewer Pipe. In its supporting affidavit, the Estate asserts that the existing sewage system is nearly 100 years old. The evidence is also unequivocal that the 52 James’ only access to the city sewer line is via the 52 Pipe and the Shared Sewer Pipe and that without that access, the water cannot be used at 52 James.
[15] Based on the evidence, I find that 52 James has used the Shared Sewer Pipe continuously and openly since 1926 and that the owner(s) of 54 James acquiesced in the usage.
[16] The parties agree that an easement has four characteristics [5]: (i) there must be a dominant tenement and a servient tenement; (ii) the easement must accommodate and be reasonably necessary to the better enjoyment of the dominant tenement; (iii) the dominant tenement and the servient tenement must have different owners; and (iv) the rights claimed over the servient tenement must be capable of forming the subject matter of a grant.
[17] The parties further agree that Olivieri has satisfied the first three of the above-listed characteristics. They disagree on whether Olivieri has met or can meet the fourth characteristic.
[18] As the parties have agreed that the first three of the four characteristics listed at paragraph 16 above have been met, I do not address them here except to say that I am also satisfied that they have been met.
Are the rights claimed by Olivieri capable of forming the subject-matter of a grant?
Positions of the Parties
[19] Olivieri refers to the learned text, Bruce H. Ziff, Principles of Property Law, 6th ed. (Toronto: Thomson Reuters, 2014) at chapter 10, which defines the treatment of easements as “incorporeal” rights that do not require that the easement to be defined with geographic certainty. That principle can also be found in Access Self Storage Inc. v. 132165 Ontario Ltd. et al., a case relied upon by the Estate, in which the court found that it was not necessary to set out the specific dimensions of an easement for it to be enforceable but only that it be determinable “by setting out some type of description of the boundaries or dimensions of the easement.” [6]
[20] Olivieri also refers to early Ontario, English and American cases in which courts have found easements to exist over the use of a drain, a lavatory, sewage drainage and water pipes. [7]
[21] Here, the Court has been provided with “some type of description” of the location and dimensions of the 52 Pipe and the Shared Sewer Pipe. Those include: i) the “Private Drain Inspector’s Report form, Exhibit “D” to the affidavit of Olivieri sworn September 7, 2017; ii) a diagram showing the layout of the Properties and the location of the 52 Pipe and the Share Sewer Pipe, Exhibit “D” to the affidavit of David Newhouser sworn February 2, 2018; and iii) photographs taken of the 52 Pipe and the Shared Sewer Ppipe, Exhibit “N” to the affidavit of Olivieri sworn September 7, 2017.
[22] The Estate asserts that the easement claimed here cannot be the subject-matter of a grant: it is too wide in scope, as the 52 Pipe and the Shared Sewer Pipe run through the interior of 54 James, rather than underground, which is more typical for water or sewer pipe easements; and it is too vague because the location of the easement is not adequately described and its boundaries are not determinable.
[23] Finally, the Estate asserts that if the easement sought were to be granted, the owner of 52 James would have the right of entry to 54 James, which amounts to a right of “joint occupation”.
Analysis of easement
[24] In Mihaylov v. 1165996 Ontario Inc. [8], the Ontario Court of Appeal considered the fourth characteristic of an easement. At issue was whether an underground pipe was an easement despite the fact that the document which purported to grant the easement neither declared the location of the pipeline nor contained its description. In that case, the court found that an easement had been created but that it had to decide questions relating to its scope. If an easement is found to exist in this case, similar questions would need to be addressed.
[25] The appellate court upheld the lower court’s finding that an easement had been granted but overturned the finding that the easement extended to the right to install or bury a new water line on the property. Following the wording of the grant, the Court found that the easement was limited to the ability to make repairs to the existing pipeline: there was no right to install a new or underground pipeline.
[26] In Mihaylov, as here, the parties knew the location of the original pipeline and the court concluded that it was not fatal to the creation of the easement that the pipeline had not been described with particularity. In Mihaylov, the easement had its source in a grant. Here the easement is prescriptive and its existence and limits are determined by its use.
[27] I reject the Estate’s submissions that because the proposed easement cannot be the subject of a grant because it is located in the basement of 54 James, which would give the owners of 52 James having the right of entry amounting a right of “joint occupation”. Rather, I conclude that those submissions should be considered in my determination of the scope of the easement, which would include a determination of the ancillary rights necessary to the use and enjoyment of the easement.
Disposition on easement
[28] In her prayer for relief, Olivieri asked, in part, for a declaration that 52 James is a dominant tenement benefiting from an easement providing access to the municipal sewer system through a common sewer connection in the adjoining premises, 54 James. I am satisfied that Olivieri has met her onus of establishing that the foregoing declaration should be made. However, as set out below, I would further describe the easement in a schedule to my declaration.
[29] The diagrams and photographs referred to in paragraph 21 above assisted this Court in determining the location and dimensions of the 52 Pipe and the Shared Sanitary Pipe and would assist future owners of the Properties. While professionally prepared drawings would be preferable, in the absence of those, the easement shall be further described in a schedule attaching: (i) the “Private Drain Inspector’s Report” form; (ii) the diagram showing the layout of the Properties and the location of the 52 Pipe and the Share Sewer Pipe; and (iii) the photographs taken of the 52 Pipe and the Shared Sewer Pipe, referred to at paragraph 21of these Reasons.
What ancillary rights are necessary to the easement?
[30] It is a well-accepted principle that a grant of an easement includes ancillary rights which are reasonably necessary to the use and enjoyment of the easement which was contemplated by the grantor. Here title to the Properties is silent with respect to the sanitary sewer pipe easement, and offers no guidance as to what ancillary rights were anticipated to be reasonably necessary to the use and enjoyment of the sanitary sewer easement. Thus the more difficult question to be answered is what ancillary rights necessarily attach to the easement.
[31] At paragraph 24 (a) of her Supplementary Factum, Olivieri seeks to expand the relief she originally sought to include a declaration that she and any successor in title to 52 James (as the Dominant Tenement) is entitled to a permanent easement “for the purpose of maintaining, inspecting, altering, repairing or replacing the existing sanitary sewer line, including all appurtenances to it, for the purpose of maintaining the existing connection of 52 James’ sanitary sewer line to 54 James’ (as the Servient Tenement) sanitary sewer line and its associated connection with the municipal sewer line.”
[32] At paragraph 24 (b) of her Supplementary Factum, Olivieri also asks for an order “entitling her or any successor in title to direct servants, agents, contractors and workers to enter upon the Servient Tenement, if required, with material and equipment necessary for the continued use and maintenance of the said easement.”
[33] The photographs of 54 James show its unfinished basement with the 52 Pipe clearly visible and traversing the shared basement wall between 52 James and 54 James. I conclude from these photographs that any buyer of 54 James, or at least a buyer who saw the basement, would have known of the 52 Pipe and the Shared Sewer Pipe. Of course, knowing of the existence of the 52 Pipe and the Shared Sewer Pipe is not the same as knowing what ancillary rights are reasonably required for 52 James’s use and enjoyment of that easement.
[34] Olivieri purchased 52 James in 2011 but provided the Court with no evidence as to her understanding of her rights with respect to the 52 Pipe and Shared Sewer Pipe, nor was there any evidence as to Valvasori’s understanding of those rights. There is some evidence that when a prior blockage occurred, Olivieri had given Valvasori $250.00 toward the cost of clearing the blockage and that she was prepared to continue to share the annual cost of maintaining the Shared Sewer Pipe.
[35] The onus is on Olivieri to establish what ancillary rights are necessary for the use and enjoyment of the prescriptive easement. Olivieri has led no evidence that the ancillary rights she now claims at paragraphs 24 (a) and (b) of her Supplementary Factum were ever exercised by Olivieri or by any previous owners of 52 James. Except as a result of the Order made by Carpenter-Gunn, J. in April 2017, there is no evidence that Olivieri or any prior owner of 52 James had the right to or did enter 54 James with respect to the sanitary sewer system. To the contrary, based on the evidence presented, any repairs to the 52 Pipe and/or to the Shared Sewer Pipe were affected by the owners of 54 James who then sought a financial contribution from the owners of 52 James toward the cost of those repairs.
[36] I accept the principles outlined by Ziff that the grant of easement cannot require the servient owner to spend money and that it cannot confer a right to possession or control of the servient lands to an extent that is inconsistent with the possessory rights of the servient owner. [9] However, at page 384, the author goes on to state that all easements “involve some degree of possession-taking” and allow the holder of the easement to “engage in some activity on the servient tenement”.
[37] Consistent with the principles set out in Mihaylov, I conclude that the rights necessarily flowing with the easement, do not entitled Olivieri or any successor in title to alter the easement. To find otherwise would recognize a broad and vague right that is inconsistent with the 90+ year use of the 52 Pipe and Shared Sewer Pipe, on which the prescriptive easement is based.
Disposition on ancillary rights
[38] Applying the principles referred to above to the facts in this case, I conclude that the obligation to maintain the 52 Pipe, to its connection with the Shared Sewer Pipe, rests solely on the owner of 52 James. Further, and consistent with the limited evidence of prior sewer blockages, and with the position taken by Olivieri, the cost of maintaining the Shared Sewer Pipe should be shared equally between 52 James and 54 James.
[39] Accordingly, if and when servicing or repairs are required to the 52 Pipe, they are to be at the sole cost of the owner of 52 James, who must also repair any damage done to 54 James that may be caused in the course of that repair. Further, unless access is required to discharge its obligation to maintain the 52 Pipe, I find that the owners of 52 James do not have an ancillary right to access to the basement of 54 James. In other words, the obligation to maintain and repair the 52 Pipe is not accompanied by a right to enter 54 James.
[40] Any lack of repair to the 52 Pipe to its connection to the Shared Sewer Pipe is likely to lead to problems in the basement of 54 James. Accordingly, in the event that the owners of 54 James determine that maintenance, repair or replacement is required to 52 Pipe or to the Shared Sewer Pipe, I find that the owners of 54 James have a right to effect the necessary maintenance, repairs, or replacement, and to look to the owners of 52 James to pay their share of the cost.
[41] The law is clear that an easement does not impose a burden on the owner of the servient tenement to effect repairs necessary to ensure the enjoyment of the easement. The obligation of a servient tenement is limited to an obligation not to deal with his tenement so as to render the easement over it incapable or more difficult of being enjoyed by the dominant owner. [10] Therefore, should the owners of 54 James determine that they are not willing or able to effect the necessary repairs or maintenance to the 52 Pipe and/or Shared Sewer Pipe, the lack of which affects the operation of the 52 Pipe, then it would be within the ancillary rights of the owner of 52 James to request the opportunity to inspect the 52 Pipe and the Shared Sewer Pipe and to be permitted to effect necessary repairs to the 52 Pipe and/or to the Shared Sewer Pipe. With respect to the latter, the owner of 54 James would be required to share equally in the cost of any necessary repairs.
Olivieri’s claim for damages
[42] In her factum, Olivieri seeks damages in the amount of $4,500.00 for the unauthorized interference with the 52 Pipe and the Shared Sewer Pipe. The evidence shows that, when it became clear that Olivieri would not agree to construct a separate sewer line for 52 James, the Estate chose to unilaterally cap off the 52 Pipe from the Shared Sewer Pipe. The Estate notified Olivieri of what it had done by way of Henry’s handwritten letter dated April 8, 2017, which read: The sewer line is capped, so I’d advise you not to use water until you have your own sewer line installed. Perhaps you can stay at your boyfriend’s house until then.
[43] April 8, 2017, was a Saturday. The following Monday, Olivieri’s lawyer warned that unless the shared sewer line was reconnected, Olivieri would seek a court order requiring reconnection and would also claim damages and costs.
[44] Olivieri’s evidence was that, while the 52 Pipe was capped, she did not wish to leave her pets alone and also could not afford to relocate to a hotel and relied on friends to shower. She had to use either local restaurants for toileting or pails she set up in her bathroom as “make-shift chamber pots”. She was unable to cook in her own home, which limited her meal choices. She lived in this primitive environment from April 8 to April 17, 2017, on which date the judicially-ordered entry permitted the re-connection of the sewer pipe.
[45] The “self-help” actions taken by the Estate rendered 52 James almost uninhabitable. Certainly, to the extent that Olivieri was able to remain in 52 James, she was forced to live under terrible conditions. As a result, I find that she is entitled to compensation for this significant and unjustifiable interference with her use and enjoyment of 52 James.
[46] Olivieri submits that the $3,000.00 in damages awarded by the court in Bobbett v. Fitzpatrick, [1994] 126 Nfld. & P.E.I.R. 170 would be a fair and reasonable award here, provided that the amount were grossed up for inflation to $4,500.00.
[47] In Bobbett, the damages were awarded to the plaintiff whose sewer line was cut in October 1993 leaving the house uninhabitable throughout the winter of 1993/94. Here, 52 James house was rendered marginally habitable, albeit under distressing conditions, for a period of nine days.
Disposition on damages
[48] Having considered the evidence in this case and the applicable jurisprudence, I find that Olivieri’s fair and reasonable damages for the Estate’s interference with the 52 Pipe’s connection to the Shared Sewer Pipe to be the sum of $3,000.00. Olivieri is also entitled to reimbursement of the amounts she reasonably spent as a result of the actions of the Estate. Those amounts are listed at paragraph 26 of Olivieri’s affidavit sworn September 2017 which I calculate to be $467.92. That amount shall be added to the damages award for a total damage award to Olivieri of $3,467.92, payable by the Estate.
[49] For the reasons set out above, the Estate is also entitled to reimbursement of 50% of what it expended to remedy the back-up of the Shared Sewer Pipe. Those costs are itemized at Exhibit “F” and “G” to the affidavit of David Newhouser sworn February 2, 2018, for a total of $960.18*. One-half of that amount, $480.09, is payable by Olivieri and shall be treated as a credit or set-off against the damages payable by the estate to Olivieri. * Exhibit “G” was only marginally legible and if the invoice amount was different than $750.00, this amount payable should be adjusted accordingly.
Form of Order and Registration on Title
[50] As I have found a prescriptive easement to exist, it is appropriate for the easement to be registered on title to 52 James and 54 James. Should the parties be unable to agree on the wording to be used in that registration, they may arrange a brief hearing or conference call with me.
Costs
[51] This is a case in which neither party has acted in a manner deserving of costs. I make no award of costs in either application.
Released: September 25, 2018 L. Sheard J.