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INTERESTS IN LAND - Easements - Creation - By express grant - By express reservation from grant - Particular easements - Positive easements - Rights of way

Tuesday, December 19, 2017 @ 8:32 AM  


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Appeal by the Purdys from a decision finding that the respondent cottagers had a right-of-way over their cottage property to the shore of the Northumberland Strait. Originally part of a farm owned by Brownell, the lots were deeded to cottage owners over many years. Each cottage owner’s deed also granted a right-of-way to the shore. The respondents relied upon a reservation in the 1996 deed from Brownell to the appellants to establish a right-of-way to the water across the appellants’ land. The trial judge found that the reservation of the right-of-way in the deed was in favour of Brownell and the other cottagers. He held the appellants were not bona fide purchasers without notice of the reservation of a right-of-way in favour of Brownell and the other cottagers. According to the judge’s interpretation of the reservation in the appellants’ deed, the respondents had a right-of-way over the appellants’ property to access the beach.

HELD: Appeal allowed. Even if the language in the reservation could be considered ambiguous, neither the law nor the facts supported the judge’s conclusion that the reservation granted rights-of-way to the respondents. The legal character of a “saving and excepting” clause such as the one in the appellants’ deed was a notional grant of a right-of-way from the appellants to Brownell. It was not a reservation of an existing right-of-way because Brownell did not need one, as he owned the fee simple interest in the property under conveyance. The words “as was presently being used by the cottage owners” modified the grant being reserved by fixing its location according to current use. It did not describe the right by which the cottage owners themselves exercised that use. The reservation clause in the appellants’ deed could describe a right that was already enjoyed by the cottage owners, but it did not create that right.

Bishop v. Purdy, [2017] N.S.J. No. 446, Nova Scotia Court of Appeal, D.R. Beveridge, D.P.S. Farrar and P. Bryson JJ.A., November 28, 2017. Digest No. TLD-December182017004