Bellhouse v. Kaas

Bellhouse v. Kaas, CITATION: 2020 ONSC 7452

COURT FILE NO.: 11704/17; 11857/17

DATE: 2020-12-02

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Susan Michelle Bellhouse, Applicant

AND: Henry Peter Kaas and Tara Leon Kaas, Respondents

BEFORE: Mr. Justice Ramsay

COUNSEL: Duncan M. MacFarlane, QC for the Applicant; Michael Valente for the Respondents

HEARD: December 1, 2020 at Welland

ENDORSEMENT

[1] Two Applications under Rule 14.05 are before me. Mrs. Bellhouse’s Application, File 11704/17 was filed first, so I shall refer to her as the Applicant and to Mr. and Mrs. Kaas as the Respondents.

[2] The parties are next door neighbours on Lake Erie in Wainfleet. They are successors in title to a brother and sister whose lots had mutual rights of way:

a. One easement, nine feet wide, is for the common driveway that weaves back and forth across the property line. The driveway easement ends where it opens up to a larger gravelled portion on each side of the property line that the parties use for parking.

b. About 38 feet south of the spot where the driveway easement ends, there is an easement four feet wide for a walkway and a set of concrete steps, mostly on the Respondents’ side of the property line, that lead from the Respondents’ parking area to the beach.

The Applicant claims an appurtenant easement along the 38-foot gap. The Respondents submit that no appurtenant easement was granted by implication or gained by prescription and in the alternative that any easement has been extinguished by operation of law.

The property

[3] The properties run south from Lakeshore Road in Wainfleet to Lake Erie. The Bellhouse property is on the east, i.e. the left side of the survey. The Kaas property is on the west, the right side of the survey. The property line runs more or less north and south.

[4] The parties use the narrow common driveway to get to their respective houses. The driveway opens up to a larger gravelled space on each side of the property line where the parties park their cars. Just south of the edge of the Kaas parking space lie the concrete steps, parallel to the property line. Going south from the north end of the steps, you climb to a crest. From there, if you continue walking to the lake you go downhill part way to the beach. Mrs. Bellhouse has been accustomed to use the steps two ways. She walks north down the northern part of the steps to the Kaas parking space and then farther north to the driveway, or, more often, she walks south from the north end or the crest to go to the beach. She has been doing this since 1988 when she bought the property. She is getting older and has bad knees. The steps are less steep than the grassed dune.

[5] Since the Kaas family arrived in 2002, the Bellhouses have committed a number of provocative trespasses. They have cut the lawn, cut down a tree, sprayed weed killer, allowed their dogs to foul the property and aggressively questioned guests and tradesmen, all on the Kaas property and all without permission. Mr. Bellhouse even entered the Kaas residence uninvited on one occasion. Mrs. Bellhouse pestered Mr. Kaas needlessly about the joint water supply on the day of his mother’s funeral.

[6] Not surprisingly, between 2013 and 2017 the Respondents have been building fences. The path from the end of the driveway to the steps is blocked. To get to the back yard without going through the house, Mrs. Bellhouse has to squeeze through an 18-inch gap between the corner of her deck and the Kaas fence. She can get onto the steps and go down to the beach from her back yard. She can also go down to the Kaas driveway, but there is a fence at the bottom, so all she could do is turn around and go back up. If there is an easement, the encroachment by the Respondents is substantial. It is idle and somewhat insensitive to suggest that the Applicant can get to the beach on her own property. The easement remains the safest and best way to accomplish that.

Is there an implied or prescriptive appurtenant easement?

[7] The appurtenant easement meets the four essential characteristics of an easement mentioned in Kaminskas v. Storm, 2009 ONCA 318. There is a dominant tenement (the Applicant’s) and a servient tenement (the Respondents’); the owners are not the same person; the right conferred is reasonably necessary for enjoyment of the dominant tenement; and the right is capable of forming the subject matter of a grant: It is a right to travel by foot over a specific four-foot wide strip of land connecting two express rights of way.

[8] I think that the appurtenant easement claimed was necessary to carry out the common intention of the grantors when the express easements were granted. The whole point was for both owners to be able to get from the road to the cottage by vehicle and from the cottage to the beach by foot without building separate infrastructure. It would not have made sense for the grantors to have intended that the owner of the Applicant’s lot would drive down to the house, squeeze through an 18-inch gap by foot, then walk to the crest of the dune between the house and the property line and from the crest of the dune take the concrete steps south to the beach, or north to a dead end.

[9] I also think it obvious that the Applicant acquired an easement by prescription. She used the driveway, walkway and steps and the path in between the same way continuously from her purchase in 1988 until the fences were put up. Her predecessor in title, Connie Pitoscia, gave a statutory declaration in 1988 in which she said that this use had been going on since 1966, without rent. Given the grant and the right of way agreement, I think that this use had already been going on for some time by 1954. It certainly continued thereafter. The Bellhouse property was converted to Land Titles in 1998. The use of the appurtenant easement was continuous, uninterrupted, open and peaceful for at least 20 years before then. I do not accept the Respondents’ argument that it could have been permissive. There is no evidence of anyone asking or giving permission. I think it much more probable that everyone concerned thought that the use was as of right, given the history and the express rights of way and the fact that the parties contributed jointly to its upkeep. I find that the Applicant has also proven the appurtenant easement by prescription.

[10] The Respondents’ factum argues that the Applicant’s use of the Respondent’s property was a personal licence and not reasonably necessary to the use and enjoyment of the dominant tenement, but counsel did not rely on this in oral argument. It seems to me in any event that the facts here are distinguishable from those in Barbour v. Bailey, 2016 ONCA 98 and 394 Lakeshore Oakville Holdings Inc. v. Misek, cited as Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, paragraphs 182 – 231.

Was the easement extinguished by operation of law?

[11] The Respondents submit that the easement over the concrete steps has been extinguished by operation of law for two reasons: first because the original purpose of the easement has come to an end; and second because the easement has been abused.

[12] The original purpose of the mutual rights of way was for the owners of the neighbouring properties to enjoy the use of the rights of way jointly to their mutual benefit. The Respondent argues that since 1986, when his predecessor in title built a second set of steps to the beach, the concrete stairs are of no benefit to his property. They only serve the Bellhouse property. There is therefore no continuing mutual benefit, only a benefit to the Bellhouse property. I do not agree. The Kaas property still has the use of the concrete stairway. The fact that the owners no longer need it does not eliminate it as a benefit to them.

[13] The use to which the rights of way are put have scarcely changed since 1954. Both parties use the driveway for vehicles and can use the pathway and steps for walking to and from the beach. The Respondents rely on Bost Properties Inc. v. Highland West Developments Inc., 2002 CarswellOnt 418 (SC). But in that case the use of the property had undergone a radical change since the easement was granted, from farmland to highly developed residential property. A substitute easement was offered, which in the changed circumstances was just as useful to the dominant tenement as the original.

[14] The Respondent also submits that the easement has been extinguished by abuse. In Macdonald v. Tunney, 2016 ONSC 5346 di Tomaso J. listed a number of ways in which an easement can be extinguished by operation of law. One of them is abuse. He did not elaborate because it was not necessary. I am unaware of any case law that would help me apply this concept. I think, however, that it must involve some sort of abuse of the easement. Something like using a walkway to move heavy machinery comes to mind. The Applicant and her family trespassed and acted like bad neighbours. They did not misconduct themselves in the use of the easements.

[15] I declare that the Applicant is entitled to the appurtenant easement that she claims and that the easements have not been extinguished. I enjoin the Respondents from obstructing the Applicant in the use and enjoyment of any of these easements. I order them to take down any fences that hinder the Applicant in this regard. If the parties do not agree on the wording of the final order, I may be spoken to. If necessary, I am prepared to specify which parts of the fence have to go. The Applicant may submit brief written submissions on costs by email within 7 days. The Respondents may do so within 7 further days. The parties are reminded that costs of the motion of May 30, 2018 were fixed at $1,500 and reserved to me. The Kaas’s Application in File 11857/17 is dismissed.

J.A. Ramsay J.

Date: 2020-12-02