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INTERESTS IN LAND - Easements - Creation - By express grant

Thursday, June 28, 2018 @ 7:48 AM  

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Appeal by a property owner from a declaration of a right-of-way with an order amending the parcel registry. The deeds to the respondents' property contained reference to a right-of-way to Caribou Lake over part of the land purchased by the appellant. The right-of-way was used to launch boats into the lake. The appellant's predecessor knew there was a laneway to the shore of the lake which was called a common right-of-way and that one respondent used the right-of-way to put his boat in the lake. However, the right-of-way was omitted in the process of registering the appellant's property under the Land Registration Act. Prior to purchasing the land, the appellant saw a plan of survey which contained a notation "Laneway to Shore," and upon his occupation of the property he knew there was a narrow, overgrown road down the shore lot to the lake. The application judge found that the respondents had express grants of a right-of-way to the lake as set out in their deeds that was used and enjoyed. The judge directed amendment of the parcel registries accordingly. The appellant appealed.

HELD: Appeal dismissed. The application judge did not err in concluding that the respondents’ deeds granted them rights-of-way to Caribou Lake, as the judge's interpretation was consistent with contemporary and subsequent use of the property in question. Having decided that the respondents enjoyed a right-of-way which constituted an overriding interest within the meaning of s. 73(1)(e) of the Act, and having determined that there was evidence of continuous use of the right-of-way, it was unnecessary for the judge to consider the equitable factors criteria in s. 35(6) of the Act prior to ordering rectification of the registries.

Langille v. Penney, [2018] N.S.J. No. 196, Nova Scotia Court of Appeal, P. Bryson, J.W.S. Saunders and E. Van den Eynden JJ.A., May 23, 2018. Digest No. TLD-June252018008