Focus On

INTERESTS IN LAND - Easements - Creation

Wednesday, January 08, 2020 @ 6:23 AM  


Lexis Advance® Quicklaw®
Appeal by the plaintiff from summary judgment dismissing her action for a declaration that she held an easement affording her a right-of-way access over the most southerly 20 feet of the respondents’ backyard. The parties were neighbours. The respondent owned lot 3. The appellant owned lot 4. The Land Titles Registry at no time recorded Instrument DG490, the Right-of-Way over lots 1, 2 and 3, or any other easement running in favour of Lot 4. The appellant argued that Instrument DG490 nonetheless granted rights of access to Lot 4 over Lots 1, 2 and 3, and therefore, as the current owner of Lot 4, she was entitled to exercise those in rem rights. The respondents acquired their property in 2001. The appellant acquired Lot 4 in 2004. Sometime after she acquired Lot 4, the appellant tried to negotiate an easement in favour of Lot 4 over the respondents’ property but was unsuccessful. She now argued that the Chambers judge erred in law when interpreting Instrument DG490 and the right-of-way and failed to consider extrinsic evidence relevant to that interpretation.

HELD: Appeal dismissed. The chambers judge had full appreciation of what Instrument DG490 said on its face, of the undisputed facts of its registration, and of the extrinsic evidence that might be brought to bear upon its interpretation. The Chambers judge’s findings of mixed fact and law revealed no palpable and overriding error. Instrument DG490 and the easement it protected allowed for no interpretation other than that which the Chambers judge gave to it.

Schroeder v. Jackson, [2019] S.J. No. 459, Saskatchewan Court of Appeal, N.W. Caldwell, L.M. Schwann and R. Leurer JJ.A., November 18, 2019. Digest No. TLD-January62020006