COURT FILE NO.: CV-17-045 (Owen Sound)
DATE: 2021 07 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Herbert Doepner and Susan Ann Doepner
Plaintiffs
- and -
Robert Knapp
Defendant
COUNSEL:
Izaak de Rijcke, for the Plaintiffs
Allen Wilford, for the Defendant
HEARD: May 17, 18, 25 and 27, 2021
REASONS FOR JUDGMENT
Sproat J.
INTRODUCTION
[1] The Doepners own a 50-acre property (“the Doepner Property”) and claim an easement over the land of the defendant who owns the adjacent 50-acre property to the east (“the Knapp Property”). The Saugeen River crosses the Doepner Property twice which effectively divides the property into three components:
a) the front portion to the north which borders on a concession road;
b) the middle portion of approximately 40 acres, (35 acres of which is tillable land) which is landlocked; and
c) the back or southerly portion which is approximately 3 acres.
[2] The Doepners also claim damages, alleging that Mr. Knapp trespassed on their property and removed a fence row and trees from it.
[3] Herbert Doepner, Ronald Dore, an Ontario Land Surveyor, and Paul Francis, an Ontario Land Surveyor with special expertise in the interpretation of aerial photography, testified for the Plaintiffs. Mr. de Rijcke also filed the affidavit of Stewart Hurren. Mr. Knapp testified for the defence.
[4] Mr. Dore prepared a Plan of Survey which depicts:
a) a lane that begins on the Knapp Property at the concession road to the north and then essentially tracks the south shore of the Saugeen River as it extends south and west to the boundary of the Doepner Property. Mr. Dore described this as the “Former 12’ Wide Driveway”; and
b) the lot line between the Doepner and Knapp properties which, in large part, is delineated by a “snake rail fence”( being cedar rails placed in a zig-zag pattern) and a tree line.
ENTITLEMENT TO AN EASEMENT
[5] Herbert Doepner’s parents purchased the Doepner Property in 1965. The elder Mr. Hans Doepner was a farmer who owned a farm property nearby.
[6] Herbert Doepner was eight years old when his parents acquired the property. He lived with his parents until he was 21. Mr. Doepner testified that from 1965 – 1975 his father farmed the Doepner Property, alternating between raising crops and raising cattle. The Doepners accessed the landlocked portion of their property by means of the lane across what is now the Knapp Property. When his father raised cattle, he would visit the landlocked portion three times a week. When he raised crops, he would use the lane at planting and harvest time.
[7] In 1975 Mr. Doepner’s father sold the home farm and stopped farming. Thereafter the Doepner Property was rented out. The landlocked portion continued to be used for agricultural purposes. Mr. Knapp purchased the Knapp Property in 2007.
[8] The affidavit of Stewart Hurren was admitted into evidence on consent. (Mr. Hurren did not have access to a computer and had health concerns about coming to court.) His family moved to a farm across the road from the Doepner Property in 1965 and he grew up there. He observed the elder Mr. Doepner crossing what is now the Knapp Property to access his landlocked portion of land. In 1988 he took over his father’s farming operation and from 1988 to 2002 he farmed the landlocked portion of the Doepner Property and accessed it over the lane on the Knapp Property. Mr. Hurren stated that his use of the lane, “… was without payment of money, without seeking permission, and was just understood and accepted in the farming community as the right thing to do”. In 2002 Sharon Moore, the former owner of the Knapp Property, stopped him from using the lane.
[9] Thus from 1965, until at least 2002, individuals and equipment regularly accessed the landlocked middle portion of the Doepner Property by means of a lane across the Knapp Property.
[10] There was always a gate controlling access from the concession road to the lane. Prior to Mr. Knapp’s purchase the Doepners were provided keys to the gate. After Mr. Knapp purchased in 2007, he installed a new gate and for a time left a key accessible to the Doepners. In or about 2017 Mr. Knapp locked the gate and denied the Plaintiffs access. This action was commenced on March 9, 2017.
[11] Mr. Dore prepared a Plan of Survey of the proposed easement to be 25 feet wide because that is the minimum width required for modern agricultural equipment to have proper access. He did acknowledge, however, as appears on his Plan of Survey, there was evidence on the ground of a “well-travelled old driveway” that was 12 feet wide (also described as the Former 12’ Wide Road) which he noted on his drawing on the property. I am satisfied this was the 12-foot strip which was historically used to access the Doepner Property.
[12] Mr. Francis was also able to observe the lane, starting on the Knapp Property and proceeding south and then west to the boundary between the two properties, in the aerial photographs from 1969 and 1987.
DAMAGE CLAIMS – TRESPASS – REMOVAL OF FENCE AND TREES
[13] Mr. Doepner testified that originally there was a snake rail fence that separated the two properties. There was also a row of trees along the property line and stones removed from the field, were also placed along the fence row. At some point many years ago a portion of the rail fence was replaced by a wire fence which necessitated a number of trees being taken down.
[14] Since acquiring his property Mr. Knapp has removed additional sections of rail fence and many trees. Mr. Doepner estimated that Mr. Knapp removed snake rail fence or wire fence, and all of the trees, along a 1,450-foot stretch of the boundary fence row.
[15] Mr. Doepner testified that he had reviewed a 2006 satellite image and counted 100 trees along the property line. He assumed that 50 percent would be on his side of the property line and 50 percent on Mr. Knapp’s side. He obtained a quote dated September 28, 2019, indicating that it would cost $21,752.00 plus HST for him to have 50 sugar maple trees, 10 – 12 feet tall, planted along the property line. He obtained a further quotation in 2019 indicating that replacing the rail fencing along the property line would cost $12,495 plus HST.
[16] Paul Francis was qualified as an expert in photogrammetry, being the interpretation of aerial photographs. Using sophisticated equipment, he is able to take two aerial photographs of the same area and overlay them in such a way that it produces a three-dimensional image. For example, if there is a building in the photograph it will appear as standing up above the ground.
[17] In the aerial photographs from 1969 and 1987 Mr. Francis was able to see an object having the characteristics of a snake rail fence running along the line that Mr. Dore opined was the boundary line between the two properties.
[18] Mr. Dore has over 30 years of experience as an Ontario Land Surveyor. Mr. Dore was qualified as an expert to give evidence concerning the survey of property boundaries and rights-of-way. He testified that in the vicinity of the Doepner and Knapp properties there are no monuments which would provide a starting point from which to establish the lot lines by measurement. He also searched for, but could not find, any prior survey that would assist.
[19] In Mr. Dore’s opinion, therefore, the best evidence of the property line was the snake rail fence along the property line. He said snake rail fences like this can be 100 years old. Trees had also been planted along the property line and stones retrieved from the field had also been piled along the property line.
[20] Mr. Dore testified that he established the property line such that the snake rail fence would be one-half on the Doepner Property and one-half on the Knapp Property.
[21] It was suggested to Mr. Dore in cross-examination that there were wooden stakes planted on the Doepner Property approximately nine feet in from the snake rail fence. It was further suggested that Mr. Knapp viewed these wooden stakes as marking the property line.
[22] While Mr. Dore could not recollect there being wood stakes as described, he did indicate that wood stakes are sometimes put in by surveyors as “offsets”. A surveyor will find the centre of the snake rail fence at a particular location and then plant a wooden stake offset a known distance from the centre line. This is then done at a number of locations. In terms of sight lines, this is preferable to a view which is obstructed by a fence, vegetation or trees.
[23] Mr. Knapp testified that according to an old, old rule he heard as a child, a landowner was responsible for the boundary fence on the right as he faced his property from the public road. There was no evidence that this was so generally understood that it could create rights or derogate from rights.
[24] I can, however, see that some simple arrangement to ensure that fences were repaired makes sense. If a tree falls on a fence, or cattle break through, the fence needs to be repaired. What Mr. Knapp did went beyond fence repair. He obliterated the fence line by clearing out a strip approximately 10 feet wide and 1,400 feet long.
[25] Mr. Knapp further testified that, apart from this rule, he regarded the wooden surveyor stakes as marking the boundary. He did all the clearing at least 2 feet on his side of the wooden staked line. He planted a large number of trees that are now about 40 inches in height.
LAW AND ANALYSIS
Entitlement to a Prescriptive Easement
[26] The aerial photographs from 1969 support Mr. Doepner’s evidence that there was a lane from the public road starting on the Knapp Property and roughly tracking the line of the Saugeen River, leading to the boundary line between the Doepner Property and the Knapp Property. I accept Mr. Doepner’s evidence that this 12-foot wide lane was used continuously to access the landlocked section of his property from 1965 to approximately 2002.
[27] The Doepners cannot succeed in obtaining a prescriptive easement by statute as that requires use that is uninterrupted up to the date the court application is commenced. See Kaminskas v. Storm, 2015 ONCA 318, paragraph 31. The Plaintiffs, therefore, have to rely upon the doctrine of lost modern grant.
[28] Mr. de Rijcke brought to my attention Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466 which is instructive and, in my opinion, determines the result. In our case there is no doubt that the prior owners of the Knapp Property were using the right of way from 1965 until at least 2002. The elder Mr. Doepner, or tenant farmers, used the landlocked portion of the Doepner Property to cultivate cash crops or raise cattle. It would have been obvious to the prior owners of the Knapp Property that Mr. Doepner was using the lane. The cash crops and cattle could only be transported along the lane over the Knapp Property.
[29] In Condos and Castles, Lauwers J.A. stated:
[19] In my view, Mr. Chan’s acquiescence can be readily inferred from this evidence. A fine line may well exist between acquiescence and permission in many cases: 1043 Bloor Inc., at para. 100. However, in this case, all the evidence points to acquiescence. There is no evidence of permission.
[20] The relationship between acquiescence and permission, and the shifting evidentiary burden, was well laid out by the Nova Scotia Court of Appeal in Mason v. Partridge, 2005 NSCA 144, 261 D.L.R. (4th) 315. Justice Oland held that, in deciding whether Partridge had granted Mason permission to use an old logging road to cross over Partridge's land, the trial judge erred in law by failing to differentiate between acquiescence and permission. At para. 30, Oland J.A. noted that “the trial judge erred by failing to recognize that absence of consent can be established by evidence of acquiescence or evidence sufficient to raise an inference of acquiescence.” At para. 31, citing Gale on Easements, 17th ed. (London: Sweet & Maxwell, 2002), at p. 215, she called acquiescence the "foundation of prescription" and stated that "passive toleration is all that is required for acquiescence".
[21] This accords with the principles in this court’s statement in Monaghan v. Moore (1996), 1996 CanLII 4015 (ON CA), 31 O.R. (3d) 232, [1996] O.J. No. 3900, at para. 8, citing Dalton v. Angus (1881), 6 App. Cas. 740 at pp. 773-74 (H.L.). Doherty J.A said:
[I]n my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingredients acquiescence consists. In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1st, the doing of some act by one man upon the land of another; 2ndly, the absence of right to do that act in the person doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done. [Original emphasis omitted; emphasis added.]
[22] In Mason, Oland J.A. added, at para. 45:
[O]nce there is proof of acquiescence in acts of user which are of such a character as to support a claim of right, the claimant has established that the acts were as of right unless the owner points to some "positive acts" on his or her part which either expressly or impliedly grant permission. Here, there was no evidence that the owner, at any time, took any positive steps to prevent the use in question or did anything else from which a grant of permission reasonably could be implied. [Emphasis added.]
[23] In MacNeil v. MacNeil, 2014 NSSC 171, 344 N.S.R. (2d) 350, Edwards J. considered and applied Mason. He noted, at para. 26, “Acquiescence is not implied permission; instead acquiescence is acceptance of actions known to the property owner.” He added, at para. 27, that “the burden of proving acquiescence falls to the claimant seeking prescriptive rights. Upon proof the true owner acquiesced to the use of his property, the burden shifts to the owner to establish some positive act of permission” (emphasis added).
[30] The evidence clearly establishes that the prior owners of the Knapp Property acquiesced in the Doepner’s use of the lane for over 35 years. As such, to paraphrase, from paragraphs 22 and 23 in Condos and Castles, the evidentiary burden shifted to Mr. Knapp to, establish some positive act of permission. Mr. Knapp purchased the Knapp Property in 2007. He could not provide the court with any evidence of permission granted by prior owners between 1965 and 2002, nor did he call any witnesses who could do so.
[31] As such, in accordance with the principles enunciated in Condos and Castles, Mr. Knapp has failed to discharge his evidentiary burden to establish some positive act of permission. As such, the Plaintiffs are entitled to a prescriptive easement based upon the doctrine of lost modern grant. This easement is over the 12-foot strip which Mr. Dore identified as the “well-travelled old driveway”.
Where is the Boundary Line – Did Mr. Knapp Trespass?
[32] In Nicholson v. Halliday 2005 CanLII 259 (ON CA), [2005] O.J. No. 57 (C.A.) there was a boundary dispute. As Lang J.A. explained:
[19] After reviewing the evidence, The Director concluded that the snake rail fence represented "the best evidence of the original running of the line". In so concluding, the Director reviewed the history of the lots, properly recited the principles to be applied, weighed the conflicting evidence and opinions regarding the fence, analyzed the applicable law, and concluded:
In summation I have found that the fence relates in time to when the lots were first patented and occupied and that the owners, other than Mr. Serre from 1992, have accepted the fence as the boundary. The law does not require that the fence be located in the theoretical position intended in the original survey of the Township or that the position of the fence be based upon a survey. The fence is a monument of the original running of the line. Therefore upon considering all the evidence, the material filed at the hearing with the application and with the objection, the applicable law and the submissions made at the hearing I have come to the conclusion the snake rail fence and its prolongation as illustrated as the westerly limit of Part 1, Plan 31R-2907 as prepared by James Nicholson OLS, dated August 31, 1998, represents the best available evidence of the original running of the line between Lots 22 and 23, Concession 1, Township of Tehkummah.
[28] The leading authority on boundary resolution is Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.). In that decision, Stortini D.C.J. cited an article by Lorraine Petzold, O.L.S., the Executive Director of the Association of Ontario Land Surveyors, "The Survey and The Real Estate Transaction", which was presented to the Law Society of Upper Canada in its Continuing Legal Education Seminar of October 1983. That article notes the surveyors' "hierarchy of evidence", which ranks the evidence to re-establish a boundary from most compelling to least compelling as follows (at p. 2 QL):
(a) Natural boundaries;
(b) Original monuments;
(c) Fences or possession that can reasonably be related back to the time of the original survey;
(d) Measurements (as shown on the plan or as stated in the metes and bounds description).
As in the case before this court, in the absence of natural boundaries and original monuments, the surveyor would look for fences or possession before resorting to measurement.
[29] As Stortini D.C.J. said (at p. 2 QL):
[T]he mandate of a surveyor is to re-establish boundaries. In the re-establishment of a lot line a surveyor must consider the best evidence available and re-establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in the deed or on a plan. The boundary is the re-establishment on the ground of the original running of the line and this re- establishment of the boundary constitutes the deed line.
[59] The fence itself is the legacy that its builders have left and the fence itself, its location, and its known history are the only available evidence from which its original purpose can be inferred. In my view, the Director was entitled to draw inferences from the fence itself and the evidence he had about the fence.
[33] In Saly Estate v. Flabiano, 2006 Canlii 19447 (ON SC), Lofichik J. considered a case similar to this case. Lofichik J. concluded that the fencerow constituted the property boundary so that the neighbouring landowner trespassed cleaning out brush and cutting mature trees along the fence line. Lofchik J. noted that while the defendant’s perspective was that he had enhanced the property by clearing out the overgrowth, the plaintiff did not agree.
[34] Lofchik J. concluded that the fence marked the boundary and awarded the Plaintiffs damages. Lofchik J. accepted evidence that the cost to replace the trees, remove brush and replace the fence would be approximately $35,000. Lofchik J., however, awarded approximately $18,000 with respect to these items as a new fence would constitute a betterment and replacement trees would be in better health than what was removed.
[35] Mr. Dore is an experienced Ontario Land Surveyor whose evidence was not seriously challenged in cross-examination. I am satisfied that he has correctly identified the boundary line between the Doepner and Knapp properties which is the centre line of the snake rail fence.
[36] Mr. Knapp unfortunately and unreasonably assumed that the wooden stakes he observed marked the boundary and so concluded that the snake rail fence and the trees along the boundary line were on his property. Given that I have accepted that the boundary line is the centre line of the snake rail fence, I further find that one-half of the snake rail fence and the trees were on the Doepner Property.
DAMAGES
[37] Many people, such as Mr. Doepner, view a snake rail fence and tree row attractive features of a rural property. Others such as Mr. Knapp prefer to maximize tillable area and so prefer to remove fence and tree rows. Mr. Knapp, however, had no right to trespass and destroy Mr. Doepner’s half of the fence and tree row.
[38] I accept Mr. Doepner’s estimate that 50 trees he owned were removed by Mr. Knapp. I also accept as reasonable the estimate he presented as to the cost to have 50 sugar maples planted, and to replace the fencing. These estimates totaled approximately $34,000.
[39] I would not reduce the damage award based on the argument that 50 sugar maples and fencing would be an enhancement, or betterment of the Doepner Property. I think anyone interested in a rural residential property would prefer a picturesque (if ancient) snake rail fence and 50 mature trees (even if not suitable for lumber). I, therefore, find it is reasonable to use these estimates as a measure of the damages suffered by the plaintiffs.
[40] I also accept and find that Mr. Knapp pushed debris from the fence line on to the Doepner Property near the riverbank.
[41] I, therefore, order that Mr. Knapp pay the plaintiffs $35,000 in damages for trespass, and for the damage caused to the Doepner Property.
CONCLUSION
[42] The plaintiff shall provide a costs outline and brief written submissions within 14 days. The defendant shall provide responding cost submissions within 10 days of receiving the cost submissions of the plaintiff. Reply, if any, by the Plaintiffs within a further 7 days.
[43] I will remain seized to deal with any issues that may need to be addressed to the property, describe the easement or otherwise implement these Reasons for Judgment.
Sproat J.
Released: July 2, 2021
COURT FILE NO.: CV-17-045
DATE: 2021 07 02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Herbert Doepner and Susan Ann Doepner
Plaintiffs
- and -
Robert Knapp
Defendant
REASONS FOR JUDGMENT
Sproat J.
Released: July 2, 2021