Focus On

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

Friday, March 17, 2017 @ 8:48 AM  


Lexis Advance® Quicklaw®
Appeal by Wolff from a declaration that the equitable easement he had to access his property did not include the right to install a power line to his property. Wolff’s property, surrounded by the Pacific Rim National Park, was not immediately adjacent to a paved road. The only access to the property was by way of a narrow gravel path along the east boundary, running across 100 metres of the Park. Wolff acquired the property in 2006 from an owner who had a conditional authorization from Parks Canada to access the Property by motor vehicle via the laneway. Wolff continued to use the access. The property had never had electricity. In March 2007, Wolff requested from Parks Canada an easement giving him the right to install an electric line to the property. The request was refused on the basis that utility corridors across national park reserve lands were not permitted. In 2014, Wolff approached three of his adjacent neighbours for such an easement, without offering them any payment, and they all refused. He then commenced the present proceeding, seeking a declaration of an easement of necessity or an equitable easement, and a declaration that he was entitled to use the easement for any lawful purpose necessary to his enjoyment of the property, including the right to install a hydro line. The Crown did not dispute that Wolff had the lawful right to access his property. The judge found that the conduct of the prior owners and Parks Canada gave rise to a specific right to access the property via the laneway. He found no history associated with the property in connection with a power line that fit within the test for proprietary estoppel, and that there was no evidence of any reliance such that it would be unconscionable to refuse Wolff the right to install a power line in the laneway. He considered and rejected Wolff’s submission that the declaration of an ancillary right to install an underground power line was justified.

HELD: Appeal dismissed. In rejecting Wolff’s position that it would be unconscionable to deny him the right to install such a line, the judge approached the issue of promissory estoppel correctly in considering the fact that there had been no assurance or representation to prior owners about installing an underground power line. The judge gave due consideration to the reasonable expectations of the owners of the property in concluding that the extent of the equity was restricted to accessing the property. Those reasonable expectations did not include the expectation that services would be installed within the easement because it constituted a public road. The judge properly interpreted the concept of ancillary rights in finding that the right to install a power line was not related to the exercise or enjoyment of the equitable easement. As he was not entitled to an equitable easement for a power line, Wolff could not indirectly achieve one through the mechanism of ancillary rights.

Wolff v. Canada (Attorney General), [2017] B.C.J. No. 80, British Columbia Court of Appeal, M.E. Saunders, D.F. Tysoe and G. Dickson JJ.A., January 20, 2017. Digest No. 3642-016