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INTERESTS IN LAND - Particular easements - Rights of way - Manner of past use

Thursday, September 03, 2020 @ 6:10 AM  


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Appeal by the applicant from a decision finding that the appellant did not have a right to bring boats across a right-of-way over the respondents’ property using a motor vehicle. The appellant owned a cottage property near water. She had a right-of-way over a beach owned by the respondents to access the lake for all the usual purposes. The appellant claimed that the usual purposes entitled her to bring boats across the right-of-way using a motor vehicle. The respondents argued that the right to bring boats across was limited to small boats that could be portaged across the right-of-way. The application judge distinguished between the historic uses that would have required permission from the owner of the beach and those that were part of the right-of-way and therefore would not. The application judge accepted that the former owner to the respondents’ property intended to grant a right-of-way to provide regular access to the lake to allow the owners of the appellant’s property to swim and engage in related aquatic activities. He also held that the right-of-way included the right to transport small boats by foot over the property.

HELD: Appeal dismissed. There was uncontradicted evidence upon which the application judge was entitled to rely that there were restrictions on the right to bring motor vehicles across the right-of-way by the owner of the right-of-way at the time of the grant in 1970 but no such restriction preventing pedestrian traffic. The fact that the application judge might have been able to draw different inferences from the evidence did not show a palpable and overriding error in his decision. There was uncontradicted evidence in a letter to the former owners of the appellant’s property to support his conclusion that there were restrictions on motor vehicles driving over the right-of-way on the beach at the time the first grantee owned the property.

Markowski v. Verhey, [2020] O.J. No. 3154, Ontario Court of Appeal, P.D. Lauwers, G. Huscroft and J.A. Thorburn JJ.A., July 22, 2020. Digest No. TLD-August312020007