COURT FILE NO.: CV-20-1117
DATE: 2021-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gerald Robert Mighton
Applicant
– and –
Neil Douglas Palmer, Carol Alberta Bauer Palmer, Gordon Brown, Thomas William Smith, Paul Albert McCormick, Patty Lee McCormick, Nancy Louise Moen a.k.a. Nancy Louise Moen, Ronald Salter, Helen Salter, Paul Williams Salter, and Susan Lore Salter
Respondents
Jarvis K. Postnikoff- Counsel for the Plaintiff
Gregory F. Stewart - Counsel for the Palmer Defendants
George Daoud – Watching Brief for the Other Defendants
HEARD: March 19, 2021
The Honourable Justice James W. Sloan
REASONS FOR JUDGMENT
[1] In this motion the applicant seeks a prescriptive easement over several pieces of land owned by the respondents. All respondents other than the Palmers have either consented to the easement or take no position with respect to it.
[2] The parties are in agreement that to make out a prescriptive easement the applicant must satisfy four essential characteristics as set out in the case of Bailey v. Barbour, 2016 ONCA 98 (C.A.). (Applicant’s Factum para. 33)
[3] The parties agree that the first three characteristics have been satisfied.
[4] That leaves the following issues or perhaps sub-issues to be decided by the court which include:
(a) Whether or not the easement is reasonably necessary for the better enjoyment of the dominant tenement,
(b) Whether the applicant can prove that the owners of the subservient tenement knew of the use that the applicant or others were making of their land for the requisite 20 year period before March 2007 when the property became registered in the Land Titles system, and
(c) The onus is on the applicant to do so on a balance of probabilities.
[5] Therefore, essentially there are three issues before this court.
[6] The dispute between the applicant and the Palmers is over what appears to be a relatively small piece of land designated as “Part 12 C” on a Plan of Subdivision of Part of Lot 12, Broken Front Con. Township of Colborne County of Huron. A copy of the plan is attached at Ex. B to the affidavit of the applicant dated September 2, 2020. The surveyor’s certificate for the plan is dated January 31, 1952.
[7] The alleged easement is a narrow sandy footpath through trees and underbrush leading to the Eastern shore of Lake Huron.
The Applicant’s Position
Is the Requested Easement, Reasonably Necessary for the Better Enjoyment of the Applicant’s Property?
[8] Although there is an alternate route for the applicant to get to Lake Huron, it entails a substantially longer walk leading to what is described on the Plan as a private road between lots 6 and 7.
[9] For the proposition that the easement is reasonably necessary for the better enjoyment of his property, the applicant relies in part on the Ontario Court of Appeal case of Barbour v. Bailey, 2016 ONCA 98, at paras. 57, 58, 59, 60 & 90 which state:
[57] With respect to the fourth criterion, what is “reasonably necessary” will depend on the nature of the property and the purpose of the easement. In Depew v. Wilkes, at para. 24, this court confirmed that the reasonable necessity requirement for a prescriptive easement is fact specific and must be applied in a flexible manner citing with approval the following instructive passage from Anger and Honsberger: Law Of Real Property, 2nd ed…. at page 927:
What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct. What today might not be regarded to be a reasonable amenity for the better enjoyment of the property might be regarded as a reasonable amenity tomorrow.
[58] However, not every use will be “reasonably necessary” for the purposes of establishing a right to an easement. There must be a connection between the easement and the normal enjoyment of the dominant tenement, as opposed to a personal right belonging to the dominant tenement owner… Examples of uses that courts have found to be “reasonably necessary” usually involve a very practical purpose, such as parking spaces or driveways…
[59] This is reinforced by the fact that in order to be capable of forming the subject matter of a grant…, easement rights must not be one on mere recreation and amusement; the rights in issue must be of utility and benefit to the dominant tenement…
[60] In addition to the above criteria, the claimant must demonstrate a use and enjoyment of the easement under a claim of right that is continuous, uninterrupted, open and peaceful, and without permission, for a period of 20 years…
[90] Finally, the owners use by foot on the path over Part 2 to reach Tiny Island was reasonably necessary to the better enjoyment of the property. The fact that an alternative route to Tiny Island existed to Mrs. Bailey and her predecessors in title for their use, including that they had water access to it by boat from their registered right away, does not preclude a finding that their pedestrian use of Mr. Barbour’s property was reasonably necessary for the better enjoyment of their property … In this case, such pedestrian access is connected with the normal enjoyment of the cottage property.
20 Years of Continuous Open and Uninterrupted Use
[10] The applicant is only seeking an easement for himself and the successor owners of his property, not for the world at large.
[11] He purchased his property in September 1980.
[12] The applicant submits that the use he and his predecessors in title made of the property has been going on since at least 1948 and therefore well in excess of 20 years. In addition, such use was open, in that the path was used during the daytime to walk to the beach and such use was made of the property without permission, which is admitted by all parties
[13] In paras. 4 and 5 of his affidavit sworn September 2, 2020, the applicant swears that prior to September 2018, he, his family, their guests and visitors use of the pathway was continuous and uninterrupted.
[14] John G. Davidson, who owned Lot 13 from approximately 1978 to 1998 (approximately 20 years) frequently used the path over Lot 12 C personally and for his guests as a right-of-way to the beach. He also observed the applicant and other cottagers using the “sand path” to access the beach. He periodically filled in ruts on the path with sand to make walking safer. Davidson was not cross-examined on his affidavit dated October 21, 2020.
[15] Carol Boone swore an affidavit on October 26, 2020. Her family owned Lot 17 since 1948 and she purchased the property personally in 1981 and owned it until she sold it in 2009. She swore that the “sand path right-of-way” was frequently used by herself and her family, along with the applicant and his children.
[16] During the 1980’s and early 1990’s she often babysat the applicant’s children and testified that during that time the path was well maintained and she and the children used the path to travel between the applicant’s cottage and the beach. Like Mr. Davidson, she was not cross-examined on her affidavit.
[17] The applicant further submits that Palmer was obviously aware of the path and the fact that people were using it because he put up a barricade to try to stop people from using the path. Palmer stated in his examination that he knew Gerry (the applicant) used the pathway.
[18] Palmer, however, only owned the property (Lot 12) for one year before it became registered in Land Titles in 2007.
[19] When the applicant was asked on his examination if Mr. Fisher, Palmer’s predecessor in title, knew of his using the path or made any effort to stop him, the applicant replied that Mr. Fisher made no attempt to interrupt his use of the path, “none at all”.
[20] With respect to whether or not Mr. Fisher would have known of his use of Part 12 C, the applicant replied “I would think he would have because I went down there often enough but I do not know anything for sure”.
[21] In his submission, that Fisher ought to have known of his use of Part 12 C, the applicant relies in part on the case of Carpenter v. Doull-MacDonald, 2017 ONSC 7560 where the court stated at para. 48:
[48] For the claim to an easement to succeed, the claimant’s use must be “open”, which means that the use is not a secret or clandestine and an ordinary owner of the land, diligent in the protection of his or her interest, would have a reasonable opportunity of becoming aware of the use of the land. For the claim to an easement to succeed, there must be evidence that the owner of the servient tenement knew or ought to have known what was happening on his or her land where the use by the owner of the dominant tenement is notorious and the owner of the servient tenement makes no objection, then his or her acquiescence to the use as a right of the dominant tenement owner can more readily be inferred. If during the 20-year period, the dominant tenement owner acknowledges that his or her use is with permission then this prevents the acquisition of a prescriptive right.
[22] Both the applicant and Davidson attest to the fact that they did maintenance on the path, in the form of replenishing sand in places where it was needed, to make walking easier and safer. The applicant therefore submits that the owner of Lot 12 would know that somebody was maintaining the path, even if they did not see anyone on the path.
[23] The photographs set out in the Second Supplementary Application Record show a narrow well-defined gravel/sand path.
[24] In the Responding Record, Palmer has attached a statutory declaration from Ross Fisher dated October 13, 2006, which he received when he purchased the property.
[25] At the time of his declaration, Fisher was selling the property to Palmer and therefore paragraph 8 should be taken with a grain of salt, since it was in Fisher’s monetary interest to declare as he did. For some unknown reason, Fisher did not refer to Part 12 C in paragraph 8 of this declaration. The applicant submits that the declaration is not admissible for the truth of the facts set out therein under Rule 39.01.
[26] The applicant has not had an opportunity of cross-examining the declarant Fisher. In addition, there is nothing in Palmer’s affidavit stating that he believed in the veracity of the statutory declaration.
[27] Fisher’s claim that “no one had claimed any rights to the property other than the registered owner” is meaningless with respect to the issue of a prescriptive easement. Claims for prescriptive easements do not arise, until there is a problem, such as the path being blocked.
[28] Unlike Fisher, Davidson and Boone are neutral in that they do not benefit one way or the other with respect to the issue of the prescriptive easement.
[29] The applicant seeks an order in accordance with page 11 paras. 39 to 45 of his factum.
The Palmers’ Position
[30] With respect to the admissibility of the Fisher declaration, Palmer cannot state that he believes in the truth of what Fisher declares, because he has no knowledge of the property before 2006.
[31] The applicant admitted on his cross examinations that he had not had any discussions with Ross Fisher about using the sand path over Part 12 C to access the beach. In addition, the applicant does not know if Fisher was aware of the use he was making of Part 12 C.
[32] The Palmers rely in part, on paras. 47, 48 and 50 of the Carpenter case which read as follows:
[47] The theory behind a claim for an easement based on prescription under a limitation statute or under the doctrine of lost grant is that the evidence establishes that the owner of the servient tenement has with knowledge consented or acquiesced to the establishment of an incorporeal ownership interest in land by the owner of the dominant tenement as opposed to licensing the use of the land without conferring an ownership interest in it. Use by permission or license is insufficient for establishing a prescriptive easement. The theory was explained in Sturges v. Bridgeman…
Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec calm nec precario; for a man cannot, as a general rule be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which she has no knowledge, actual or constructive, or which he contests and endeavours to interpret, or which he temporarily licenses.
[48] Supra. at para. 21.
[50] The onus of proof on the requisite use is on the claimant, the owner of the dominant tenement. The evidence required to establish title by prescription will vary with the nature of the user. For a right-of-way, the requirement for its continuous, uninterrupted use will be satisfied if clear and unambiguous evidence shows that the use was of such a nature, and took place at intervals, as to indicate to the ordinarily diligent owner of the servient tenement that a right is being claimed.
[33] The Palmers take issue with the Boone and Davidson affidavits, which only use the word “frequently”, without further defining the usage, such as daily etc.
[34] Taking someone’s land without compensation is extremely intrusive and the courts are hesitant to recognize an easement by prescription, because doing so would permit a landowner’s neighbourly accommodation of sufferance to ripen into a legal burden on his or her lands without compensation. (Carpenter case para. 51)
[35] Since the onus is on the applicant and he has no evidence about what Fisher knew about his use of Part 12 C between 1986 and 2006, his claim should fail.
[36] There is no detailed evidence about the frequency of use of the path, nor on the maintenance of the path, nor that the maintenance would have been evident to Fisher.
[37] The Bailey case referred to by the applicant is distinguishable from the case at bar, because it was the path to an island that “comes and goes” and therefore use of the path is more than just a convenience. It is reasonably necessary for the normal enjoyment of the dominant tenement.
Reply by Postnikoff
[38] With respect to the issue of the use of the word “frequency,” the applicant’s testimony on his examination is that he and his family used the path on most weekends between June and September.
FINDINGS
Is the Requested Easement Reasonably Necessary
[39] On the evidence before the court, it is apparent that for at least 20 or more years before 2007, the applicant used his property (dominant tenement) as a summer cottage.
[40] As a summer cottage, reasonable access to the beach and the waters of Lake Huron, would significantly contribute to the normal enjoyment of the cottage (dominant tenement).
[41] The shorter the walk to the beach, the more enjoyable it would be to use a cottage. This would be for several reasons including:
(a) The time it would take to walk from the cottage to the beach and return,
(b) The time and difficulty it would take to transport objects, like beach chairs, floating apparatus, lunch baskets, coolers, books, electronic devices and beach umbrellas, etc. to the beach and back.
(c) Access to washroom facilities.
(d) All of these reasons are heightened if young children or older people are involved.
[42] The scale on the plan of subdivision is 1” = 50’. The length of Part C would then be approximately 25 feet. It was unclear to the court what the exact alternate route to the lake is, however, it appears form the Plan to be between approximately 650 and 1,300 feet depending on which route is the correct one. This is relatively significant when you are walking and again becomes much more significant if young children or older adults are making the trek. When taking into account the things that most people would take to the beach, the significance and therefore enjoyment (or lack of enjoyment) of a cottage, in light of a lengthy walk(s) to the beach becomes more evident.
[43] Therefore, I find that this claim of easement rights is more than for “mere recreation and amusement” and that it is “of utility and benefit to the dominant tenement,” (Barbour supra) notwithstanding there is an alternate, albeit significantly longer means of getting to and from the beach.
Did the Owners of the Subservient Tenement Know What Use Was Being Made of Their Property?
[44] The court has no difficulty concluding, on a balance of probabilities, that the Fishers, the owners before the Palmers, knew that the applicant and other property owners in the area were going to and from their properties, to the beach using Part 12 C of Lot 12, i.e. the Palmers’ property and their predecessors in title, the Fishers.
[45] The evidence before this court that I accept, adequately demonstrates the use of the subject path back into the 1940’s.
[46] On one part of the debate, the Palmers have only Mr. Fisher’s declaration to rely on, which was signed at the time Mr. Fisher was selling the property to the Palmers, so it was in his monetary interest to sign the declaration as he did. To use a vernacular phrase, Fisher had “skin in the game”.
[47] Mr. Fisher declares that he used the path over Part 12 C to get to the beach. Although he does not comment on maintenance of the path, unless the applicant and Mr. Davidson are not telling the truth, Mr. Fisher would have known that somebody was periodically doing some maintenance on the path.
[48] Apparently, Mr. Fisher was not available to be examined.
[49] Mr. Davidson and Ms. Boone on the other hand, had nothing to gain or lose by signing their affidavits. In addition, the court understands they were available to be examined, but were not.
[50] I prefer the recent evidence of the applicant, Mr. Davidson and Ms. Boone, over that of the declaration of Mr. Fisher from October 13, 2006.
[51] The applicant, Mr. Davidson and Ms. Boone, all testified that the subject path was used frequently by many landowners in the area. Although they did not elaborate on exactly what they meant by frequently, neither were they examined on their use of that word.
[52] The applicant testified that he, his family and his friends used the path virtually every weekend of each year, from June to September. The use of the path by several people each weekend during three or four months of each year would certainly qualify as frequent, and this is only for the applicant’s family and friends.
[53] Ms. Boone left no doubt as to the frequency of her use of the path. During what appears to be at least a 10 year period, if not longer, she babysat children including the applicant’s children and used the path. There is little doubt in the court’s mind, that Ms. Boone and the children would make the trek to the beach at least once, if not more than once each day, weather permitting.
[54] Given the above evidence, that I accept, it makes no sense that Fisher would not know that there was a sand path over Part 12 C and that it was maintained by and used frequently by area landowners to access the beach.
Summation
[55] I therefore find that the applicant has proven on a balance of probabilities, that the owners of the subservient tenement for at least 20 years before 2007 knew (or ought to have known) of the use that people were making of the sand path to travel over Part 12 C.
[56] I also find that the applicant and third parties use of the path over Part 12 C was open, continuous, uninterrupted, peaceful and was accessed without the permission of the owner of Lot 12.
[57] I further find that the easement is reasonably necessary for the better enjoyment of the applicant’s cottage, which is the dominant tenement.
Order
[58] The court therefore makes the order requested by the applicant at paras. 39-45 of his factum dated February 4, 2021.
[59] If the parties are unable to agree on costs, Mr. Postnikoff shall forward his brief submissions on costs to me by April 1, 2021. Mr. Stewart shall forward his brief response to me by April 9, 2021. Mr. Postnikoff shall then forward his reply, if any, to me by April 14, 2021. Cost submissions may be sent to my attention by email, care of Kitchener.SCJJA@ontario.ca. Cost submissions, excluding bills of costs shall be limited to 5 pages using spacing of 1.5 and 12 pitch font.
Justice James W. Sloan
Released: March 25, 2021
COURT FILE NO.: CV-20-1117
DATE: 2021-03-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gerald Robert Mighton
Plaintiff
– and –
Neil Douglas Palmer, Carol Alberta Bauer Palmer, Gordon Brown, Thomas William Smith, Paul Albert McCormick, Patty Lee McCormick, Nancy Louise Moen a.k.a. Nancy Louise Moen, Ronald Salter, Helen Salter, Paul Williams Salter, and Susan Lore Salter
Defendants
REASONS FOR JUDGMENT
Justice James W. Sloan
Released: March 25, 2021