Focus On

Real Property Law - Interests in land - Easements - Creation - By implication - By implied reservation from grant - Easements of necessity - Implied reservation by common intention

Thursday, November 17, 2016 @ 7:00 PM  


Appeal by Miles from a ruling in a dispute over ownership of a gravel road situated on Miles’ property. In 1971, the road served an oil and gas well. The road was subsequently used to access properties within a subdivision. In 1973, the north-east quarter of the lands owned presently by Miles was sold by Peel to Schiele. The agreement mentioned the strip of land used as the road, excepted it from the agreement, and provided for its transfer back to Peel. The agreement was never concluded by a formal transfer of the road back to Peel. Peel registered a caveat, which did not describe the road. The road was used, uninterrupted, for forty years to access lands on the north-west and south-west quarters. In 1991, Schiele entered into a surface lease with owners of a well license on the north-east quarter and received lease payments. In 2009, Miles sought to buy the north-east quarter from Schiele’s estate. It was a condition precedent that the caveat be removed. Notice was not provided to Peel’s successor in title, nor to the residents using the road to access their homes. Since then, Miles and the residents disputed the use of the road. Miles at one point sought to close the road with a gate. The Municipality declared it a temporary public road in 2014. The residents applied for lawful access and use of the road. The judge found that the road was not a public highway and that no easement arose by express reservation because the caveat did not expressly protect the road. He found an implied easement by necessary implication. He found that Peel and Schiele appreciated that the road was reserved to allow access to the local residents and that one of the residents enjoyed an implied easement by necessity. The judge enjoined Miles from denying access.

HELD: Appeal dismissed. The judge fully appreciated that an easement of necessary inference had to be based on a common intention between owners of the affected properties, and a necessary inference of that common intention from the circumstances at the date of the grant. The easement had to be obvious to observers. The judge did not err in law or fact in stating that Peel and Schiele intended to create an easement and that the residents knew of this and acted on it for decades before Miles came along. The decision was reasonable.