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EASEMENTS - Creation - By prescription

Wednesday, April 21, 2021 @ 6:15 AM  

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Appeal by Grant from a decision dismissing her application for damages, the removal of a water pipe and injunctions against trespass and allowing the respondent’s claim for an easement over the appellant’s vacant lot. The respondent, Halifax Regional Water Commission (Halifax Water), was the owner of a storm water pipe that ran underneath the appellant’s property. The property was sold to the appellant in 2009. The appellant, at that time, owned the adjacent property. A recorded easement did not exist on the vacant lot. In 2007, the respondent entered into a transfer agreement with Halifax Regional Municipality where the responsibility for waste water and storm water was transferred to Halifax Water. The appellant wanted to sell her lot in 2017. The respondent claimed that it had an unrecorded six-metre easement over the pipe on the appellant’s property. The purchaser could thus not develop the property and the sale fell through. The application judge found the respondent had a prescriptive easement through the operation of s. 75(1) of the Land Registration Act.

HELD: Appeal allowed. Cross-appeal dismissed. The respondent was ordered to remove the pipe from the appellant’s lot. The matter was remitted to the application judge for a determination of any remaining issues on damages. The judge erred in finding that the respondent had established a prescriptive easement over the property since he erred in finding that the respondent was the agent of the municipality for the purposes of owning and maintaining the pipe, and in his interpretation of s. 75. Neither the Halifax Regional Water Commission Act nor the Transfer Agreement created a relationship of agency between the municipality and respondent. The effect of the Transfer Agreement was to transfer any interest in storm-water facilities to the respondent. Even if the respondent were an agent of the municipality, it could not have obtained a prescriptive easement under s. 75(1) as it would have to establish it was the owner of an adjacent property which it was not. The respondent could not bootstrap itself to the adjacent landowner, the municipality, and then rely on its own use of the land for the pipe it owned to establish a prescriptive easement. Section 75(1) did not permit the agent of an adjacent owner to acquire a prescriptive easement in its own right. The application judge did not err in rejecting the evidence of a witness for the respondent to prove that the pipe had been on the property prior to 1989, more than 20 years prior to the property being migrated in 2009. The witness was evasive, uncertain about dates, vague in his responses and argumentative with counsel. There was ample support for the judge’s conclusion that the witness was unreliable.

Grant v. Halifax Regional Water Commission, [2021] N.S.J. No. 84, Nova Scotia Court of Appeal, D.P.S. Farrar, M.J. Hamilton and C.A. Beaton JJ.A., February 26, 2021. Digest No. TLD-April192021008