COURT FILE NO.: CV-16-155-00 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHEL de JOCAS, CATHERINE de JOCAS, DAVID CARSON, RONALD PIESANEN and LINDA PIESANEN Applicants – and – MOLDOW ENTERPRISES INC., 833633 ONTARIO LIMITED and ALENA RAVENS Respondents
Counsel: Daniel J. Wyjad for the Applicants Bruce E. Bussin for the Respondents
HEARD: September 20, 2018
RULING ON APPLICATION to enforce easement boswell j.
OVERVIEW
[1] Ontario is known for some fantastic cottage country. The lake regions of Muskoka, Parry Sound and Haliburton are hugely popular. One of the attractions of cottage country, so I am told, is that life is just a little less formal and rigid than is the case back in the city. People can chill out and enjoy the beauty of their natural surroundings.
[2] One manifestation of this less formal way of life can be found in the access roads that service a great many of Ontario’s cottages. The province is dotted with countless, often single-lane, dirt roadways that wind their way through the bush, over and back across multiple properties, providing access to and from lots that have existed for many decades.
[3] Sometimes these access roadways are the subject of express easements. But frequently they exist and are maintained through the goodwill of the local cottagers, and/or through ad hoc associations.
[4] Every now and then, one cottage owner exercises some control over a shared access roadway that violates his or her neighbours’ sense of goodwill. Litigation generally follows.
[5] This case involves an access road that services five parcels of cottage land abutting on Soyer’s Lake in Haliburton. The roadway has been around for a long time. It has a name: Brewers Close.
[6] The Respondents blocked off part of Brewers Close in the fall of 2015. They constructed an alternate access route across their property. The Applicants are not happy with the change. They assert that they have registered easements to Brewers Close and the conduct of the Respondents is an unlawful encroachment on those easements. They seek injunctive relief compelling the Respondents to restore Brewers Close to its original condition.
[7] The Respondents assert that the purported easements are invalid because of their vagueness and they seek a declaration to that effect. In any event, given the fact that all of the Applicants continue to have unfettered access to their properties along the revised Brewers Close, their rights-of-way have not been substantially interfered with. They ask that the application be dismissed with costs.
THE FACTS
[8] The facts are straightforward and generally not contentious.
[9] Brewers Close is a dirt roadway that provides access to five cottage lots on Soyer’s Lake. The lots run along the shoreline in a north-south alignment. Four of the five lot owners are parties to this proceeding. The de Jocas’ property is the northernmost lot. If one walked south from their lot, one would cross the Ravens’ lot, then the Piesanens’, the Sayewiches’ and the Carson lots. Only the Sayewiches are not parties to this proceeding.
[10] I note that what I have referred to as the “Ravens’ lot” is actually owned in equal shares by the two corporate defendants. For ease of reference, I will continue to refer to it as the Ravens’ lot.
[11] Attached as appendix “A” to this ruling is a sketch showing the alignment of the relevant lots and the course that Brewers Close travels across those lots. To get to Brewers Close, one must travel along Blairhampton Road and then across a 66 foot wide right-of-way known as the Between Lakes Trail. There is no issue in this case about access across Blairhampton Road or the Between Lakes Trail.
[12] As the sketch demonstrates, Brewers Close is a semi-circular road. It can be entered or exited at two points along the Between Lakes Trail. Its easternmost section runs particularly close to the Ravens’ cottage. Too close, in fact, for their comfort.
[13] In the fall of 2015, the Ravens decided to alter the pathway of Brewers Close. They blocked off the roadway along the lot line between their lot and the de Jocases’ lot and on the lot line between their lot and the Piesanens’ lot. They constructed a new section of roadway south of the former road that ensured continued access to all five relevant lots to both ends of Brewers Close. A sketch of the newly constructed roadway is attached at appendix “B”.
[14] The Ravens assert that they were given oral permission to relocate the existing roadway by Mr. and Mrs. de Jocas and written permission by Mr. and Mrs. Piesanen. They filed a copy of the Piesanens’ written consent. They acknowledge that Mr. Piesanen subsequently withdrew that consent. The Ravens also filed an affidavit of Paul Sayewich which expresses Mr. Sayewich’s consent to the relocated roadway. Mr. Sayewich is pleased with the new roadway which he says is in much better condition than the old roadway.
THE PARTIES’ POSITIONS
[15] The Applicants assert that they each have a valid and enforceable registered easement over the whole of Brewers Close, including that portion of it that crosses the Respondents’ lands. They submit that the Respondents, as servient tenements, had no right to unilaterally alter their rights-of-way. They do not object to the Ravens having constructed a new roadway across their own property, but insist that they be given continued access to the original roadway.
[16] The Respondents assert that the purported registered easements are not valid because they are too vague and uncertain. First, they fail to properly identify the dominant tenements. Second, they do not provide a sufficiently clear description of the easement suitable for registration.
[17] The Respondents contend that the Applicants’ access to Brewers Close is actually governed by the Road Access Act, R.S.O. 1990, c. R.34. They say they have not breached the provisions of that Act because they have not prevented access to any of the five lots serviced by Brewers Close.
[18] In the alternative, the Respondents rely on the equitable doctrine of promissory estoppel. They assert that the Applicants should be estopped from proceeding with this application given the fact that the de Jocases and the Piesanens each consented to the relocation of the roadway.
THE LIVE ISSUES
[19] The facts and circumstances, together with the positions of the parties give rise to the following issues for determination:
(a) Are the purported easements valid? This issue may be broken down into three parts: (i) What are the requirements for a valid easement? (ii) Is there a sufficient evidentiary basis to determine the validity of the purported easements in this case? And, (iii) Are the easements unenforceable as a result of vagueness? (b) If the easements are valid, has the conduct of the Respondents substantially impaired the use and enjoyment of the easement by the dominant tenements? And, (c) Should the Applicants be estopped from bringing this application based on the doctrine of promissory estoppel?
[20] I will consider the issues in turn.
DISCUSSION
(a) The Validity of the Easements
(i) The Requirements of a Valid Easement
[21] An easement has been described as “an incorporeal hereditament, being an inheritable, non-possessory ownership interest in land”: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007. An easement reflects a 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.
[22] Easements may be distinguished from licenses. A license is a personal right to use another’s land; an agreement between an owner and another person that permits the other person to access the owner’s land for an agreed upon purpose. A license is not an ownership interest in that other’s land: see Justice Paul Perell’s article, The Creation of Easements, (2005), 30 Adv. Q. 487. A license will not run with the land. An easement will.
[23] Valid easements satisfy the following four requirements:
(a) There must be a dominant tenement and a servient tenement. The dominant tenement must be clearly identifiable: see Re Toscano and Dorian, [1965] 2 O.R. 514 (C.A.); (b) The easement must accommodate the dominant tenement; (c) The servient tenement must be different than the dominant tenement; and, (d) The right must be capable of forming a grant.
See Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116.
[24] The first three requirements are relatively straightforward. The fourth is a little trickier. Undoubtedly, permitting travel over an existing roadway is a right that is capable of forming the subject-matter of a grant. But the law requires a little more than this minimal threshold to satisfy the fourth requirement of a valid easement. The fourth requirement actually engages the court in a consideration of whether the rights purportedly given by the grant are too wide or too vague: see Re Ellenborough Park, [1956] Ch 131, [1955] 3 All E.R. 667 (EWCA) and Mihaylov v. 1165996 Ontario Inc., as above, at para. 85.
(ii) The Evidentiary Record
[25] I am advised by counsel that the five relevant lots in this application were all, at one time, part of a single parcel of land. Ultimately the five lots were severed off of the one parcel. It is possible that grants of easement over the whole of Brewers Close were contained in the original grants when the lots were severed. It is possible that they were created later. In any event, somewhere along the line grants of easement were apparently given by each of the five lots in favour of the others to ensure that each would have continued access to the whole of Brewers Close.
[26] In this case, we are concerned only with the validity of the grants of easement from the Ravens’ lot to the lots now owned by the Applicants.
[27] The Applicants have sought injunctive relief grounded in the validity and enforceability of their rights-of-way over the Ravens’ lot. Implicit in their request is the need to conclude, as a starting point, that they have valid easements.
[28] On the record before me I am not able to make that determination. I have been provided, in terms of title documents, only the parties’ current deeds. I am unable to effectively declare the Applicants’ easements to be valid without being able to trace the easements back to their roots.
[29] This conclusion is, on its own, sufficient to dispose of the application and counter-application. Having said that, the absence of evidence demonstrating a sufficient root of title was not an argued issue during the hearing of the application. I was essentially, though not explicitly, asked to assume that the easements can be traced back to an original grant and, I gather, that the language used in the current deeds has simply been passed down from deed to deed.
[30] I have been asked to determine if the easements are invalid only by reason of vagueness as to the dominant tenement(s) and as to the location and extent of the rights-of-way. Since that is the basis on which the application was argued, I will go on to address those issues.
(iii) Are the Easements too Vague to Enforce?
[31] It is necessary that I set out the relevant portions of the deeds in issue.
[32] The Ravens’ deed, registered in May 2000, provides as follows, with respect to the purported easement:
ALSO TOGETHER WITH a right of way unto the Grantees, their heirs and assigns over a semi-circular driveway extending from the 66-foot right of way through the properties located to the south of the herein described lands which said semi-circular driveway connects with the end of the said 66-foot right of way.
AND RESERVING UNTO THE GRANTOR in Instrument No. 20346, Rolnor Developments Limited, its successors and assigns, a right of way over the existing semi-circular driveway where the same crosses the herein described lands.
[33] The de Jocases’ deed, registered in December 1993, contains similar language:
ALSO TOGETHER WITH a right-of-way unto the grantee, her heirs, executors, administrators, successors and assigns over a semi-circular driveway extending from the 66 foot right-of-way through the properties located to the south of the herein described lands which said semi-circular driveways (sic) connects with the end of the said 66 foot right-of-way.
AND RESERVING unto the grantors, their heirs, executors, administrators, successors and assigns a right-of-way over the said existing semi-circular driveway where the same crosses the herein described lands.
[34] The deeds of the Piesanens’ and Mr. Carson contain similar language, except that Mr. Carson’s deed refers to the semi-circular driveway extending through the properties “to the north” rather than “to the south”, which is the language used in the other four deeds.
[35] On examination, the language used with respect to the purported easements is problematic in a number of respects, including:
(a) The Ravens’ deed references a grant in favour of their lands, as the dominant tenement, of the semi-circular driveway over the properties to the south. This would seem to exclude that part of the driveway that crosses the de Jocases’ lands, which are to the north; (b) The Ravens’ deed also appears to grant Rolnor Developments Limited, and its successors and assigns, a right-of-way over that part of Brewers Close that crosses the Ravens’ lands. I have no evidence about who Rolnor Developments Limited is, nor who their successors and assigns may be. The Ravens’ deed does not identify the other four relevant lots as dominant tenements over its lands; (c) The de Jocases’ deed purports to include a grant in favour of the de Jocases, as dominant tenements, over Brewers Close as it crosses “the lands to the south” (the servient tenements). This would appear to include the Ravens’ property. It goes on to reserve to the “grantors” an easement over that part of Brewers Close that traverses the de Jocases’ lands. The “grantors” in this instance was one person, Doris de Hueck, the vendor of the lands. It makes no sense, of course, to reserve a right-of-way in her favour; (d) The Piesanen’s deed also suggests that their lot, as the dominant tenement, has an easement over the “lands to the south”. Of course, the Ravens’ lot is to the north, as is the de Jocases’ lot. This deed reserves unto “the Grantor in instrument number 34495, its successors and assigns” a right-of-way over that part of Brewers Close that traverses the Piesanens’ lot. I have no evidence who the grantor in instrument number 34495 might be, or who its successors and assigns might be; (e) Mr. Carson’s deed suggests that his lands, as dominant tenement, include an easement over the semi-circular driveway as it travels over the lands to the north (the servient tenements). A right-of-way over that part of Brewers Close that traverses the Carson lands is reserved to the grantors. In this case that means Mr. and Mrs. Powell, who sold the lands to Mr. Carson. Again, this makes no sense; (f) There is, of course, no metes and bounds description of Brewers Close. Nor is there a formal survey of it; (g) There is no means to tell, from the descriptions in the deeds, where the right-of-way begins along the Between Lakes Trail, or where it ends; (h) The deeds speak of an existing semi-circular driveway. There is no way to tell if the roadway/driveway now in existence is in the same place as the driveway in existence at the time the easements were purportedly created.
[36] If I were restricted to a consideration of the language in the Respondents’ deed, I would not hesitate to conclude that it is too vague to enforce. It does not mention any of the Applicants as dominant tenements, nor does it provide anything more than a rough description of the right-of-way.
[37] In Laurie v. Winch, [1953] 1 S.C.R. 49, however, the Supreme Court held that extrinsic evidence may be considered by the court for the purpose of ascertaining the dominant tenement as well as the parties’ intentions as to the nature and extent of the interest created.
[38] In this case, each party’s deed references an easement over an existing semi-circular driveway. There is a semi-circular driveway present on the ground today. There is no evidence that it has been relocated or altered in any fashion other than through the recent efforts of the Respondents. I am satisfied that at the time each of the current owners acquired their lots, they were well aware of the location of the driveway and of the fact that it was a shared access route for all five lots.
[39] It is, in my view, unnecessary that the grant of easement contain a metes and bounds description. I find that no party to these proceedings could be under any misconception about the lands subject to the purported easements.
[40] The location of Brewers Close and the use of the term “driveway” in each of the deeds are, in my view, significant clues to the intention of the original grantor(s) in terms of the purpose for the easements and the parties intended to be the dominant tenements.
[41] The purpose of clearly identifying the dominant tenements of an easement in a deed is straightforward. A purchaser needs to know who has a right of access over his or her lands. A purchaser should not have to conduct a vast array of searches of neighbouring lands just to see if they might be entitled to a right-of-way over the purchased lands. The search parameters would be unknowable. It would be completely impractical.
[42] Having said that, in this case the driveway in issue clearly travels from the Between Lakes Trail across five identifiable lots until it reconnects with the Between Lakes Trail. I find that any purchaser would be clear, based on a combination of the content of the deed and the extrinsic evidence on the ground, about the location of the driveway and who enjoys access to it by right-of-way.
[43] This is not a case where, for instance, a laneway crosses the Ravens’ lands providing direct access from the Between Lakes Trail to Soyer’s Lake. In that case, the absence of clarity in the grant identifying the dominant tenement(s) may be fatal, since a purchaser would otherwise be subject to searching an unknown number of lots to determine who might claim a right-of-way over that laneway.
[44] There is no question that the grants in this case are poorly drafted and in some respects vague. But in view of all of the circumstances, including the relevant extrinsic evidence, I would not conclude that the easements are invalid solely on the basis of vagueness or uncertainty.
(b) Have the Respondents Substantially Impaired the Applicants’ use of the Easement?
The Governing Principles
[45] The Respondents submit that to obtain relief, the Applicants must demonstrate that their use and enjoyment of the easement has been “substantially impaired”: see Weidelich v. de Koning, 2014 ONCA 736. They contend that the impairment of the deeded rights-of-way in this case is minimal because they have provided an improved portion of roadway that grants continued access to across all five lots. Nobody’s ingress or egress has been substantially impaired.
[46] I agree with the Respondents.
[47] The litigation in Weidelich related to a right-of-way over a laneway that ran behind a block of six row houses on a Toronto street. Each of the six properties backed onto the laneway. Each had a garage at the back. The respondents put an addition on their home. It encroached somewhat on the laneway. Parts of the laneway were as narrow as 3.5 metres wide. The part encroached on, however, was at least 4.4 metres wide. The applications judge held that, in the circumstances, the addition did not create any real or substantial interference with the use of the laneway.
[48] The applicants appealed. Doherty J.A. held as follows, at para. 12:
The requirement that the dominant owner prove substantial interference to maintain a claim reflects the nature of the dominant owner's right. He or she does not own the right-of-way or the land upon which the right-of-way runs, but only enjoys the reasonable use of that property for its granted purpose. The dominant owner may only sustain a claim predicated on substantial interference with that reasonable use. The distinction is between the rights of ownership and the right of reasonable use for an identified purpose.
The Interference is Minimal
[49] The purpose for the granted rights-of-way in this case is obvious: to grant the dominant tenements access to the driveway (Brewers Close) and thereby access to the parts of their lots that it services.
[50] Looking at the sketches attached as appendices “A” and “B” to these reasons, makes it apparent that the only parties substantially affected by the relocation of that part of the driveway that passes over the Ravens’ lot, are the Respondents.
[51] All other property owners enjoy the same access to those parts of their lots serviced by Brewers Close that they did before it was relocated. In other words, each dominant tenement continues to enjoy the right-of-way for its granted purpose.
[52] I am alive to the fact that in this case the Ravens have entirely blocked off the portion of the original driveway that passed over their lands. One might reasonably conclude that completely blocking the original roadway has to be a substantial impairment. But in my view, “substantial impairment” is a concept that must be related to the purpose for which the easement was originally granted.
[53] No argument was advanced that there was anything special about the original location of Brewers Close on the Ravens’ lot. The current location of the driveway appears to me to serve exactly the same function as the original location.
[54] Mr. Wyjad argued that the de Jocases’ use of the right-of-way was substantially interfered with because they used to be able to back into the right-of-way as it crossed the Ravens’ property and use it as a means to turn their car around as they exited their property. They can no longer do so because the original roadway is now obstructed just inside the Ravens’ property line.
[55] I accept that the de Jecoses’ use of the right-of-way is somewhat interfered with. But this is not a substantial interference in my view.
[56] In view of this finding, I need not address the issue of promissory estoppel.
CONCLUSION
[57] In conclusion, I would not find that the Applicants’ purported easements are invalid on the basis of vagueness or uncertainty, but beyond that I am unable to declare them valid and enforceable in the absence of evidence as to their roots. That said, even if the Applicants have valid and enforceable easements, I find that they have not been substantially impaired. In the result, I dismiss both the application and the counter-application.
[58] The parties may make written submissions on the issue of costs, if they are unable to agree on it. Submissions should be made on a fourteen day turnaround. The Applicants submissions shall be served and filed by October 12, 2018. The Respondents’ by October 26, 2018. Submissions shall be limited to two pages, not including costs outlines. They are to be filed with my assistant, Diane Massey, by email to diane.massey@ontario.ca.
Boswell J.
Released: September 28, 2018
APPENDIX “A”