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INTERESTS IN LAND - Easements - Creation - By prescription

Monday, November 09, 2020 @ 9:22 AM  


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Appeal by the Kroekers from a decision granting the respondents’ application for a prescriptive easement over two lots for an unregistered access road affecting three cottage properties. The access road started at the main public road and crossed Lot 21 owned by the appellants, through Lot 20 owned by M and ended at Lot 19 owned by the respondents. The access road was built in 1960 by the then-owners of the three lots. There was never any written agreement but there was evidence that there was an understanding at the time that only one vehicle would be parked at each lot. The successive owners used the access road without interruption until 2017 when the appellants placed a boulder across the entrance of the access road. The appellants argued the application judge erred in failing to find that the use of the access road by the respondents and their predecessors in title to Lot19 was a neighbourly accommodation by oral permission of the predecessors in title to Lots 20 and 21. The appellants argued the access road was incapable of forming the subject matter of a grant, a requirement for an easement, since the parking arrangement and other alleged conditions contained positive obligations that could not run with the land. They also argued the application judge erred in finding that the respondents had shown that the owners of the dominant lot had used the access road for the required period of time to establish a prescriptive easement.

HELD: Appeal dismissed. The application judge did not misapprehend the evidence or make any palpable and overriding errors in his factual findings that there was no evidence that the use of the access road was forcible, secret or obtained by written permission. He carefully reviewed the evidence and provided cogent reasons why he accepted certain evidence and assigned little or no weight to other evidence. The application judge made no error in not finding that there was a positive, or any, condition associated with the use of the access road. To the extent that there was a verbal agreement establishing the parking arrangement, it could not be considered a condition of the easement. The easement arose, and its scope was determined, solely based on the use of the access road. The parking arrangement the appellants put forward as a positive covenant or obligation that prevented the obtainment of an easement was not an obligation that rested upon them as the owners of a servient lot.

Klimack v. Kroeker, [2020] M.J. No. 219, Manitoba Court of Appeal, B.M. Hamilton, J.A. Pfuetzner and K.I. Simonsen JJ.A., October 7, 2020. Digest No. TLD-November92020001