FILE NO.:
03-B 6246
DATE:
20080728
ONTARIO
SUPERIOR COURT OF JUSTICE
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MILLSTONE CONSULTING SERVICES INC.
Plaintiff |
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R. Flom, for the Plaintiff |
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PAUL DAVID CLEARY, FRANCIS LOYALA CLEARY AND JOHN
MICHAEL CLEARY
Defendants
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MURRAY EDWARD MCGEE
Defendant
to Counterclaim
VICO AND PAULA VON STEDINGK |
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G. Tighe, and J. Sirdevan, for the Defendants
Claim dismissed prior to trial |
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Defendants by Counterclaim |
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R. Flom, for the Defendants by Counterclaim |
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HEARD: October 11, 12, 15, 16,17, 18, and
2007 |
Boyko J.
Background
[1] The Plaintiff
corporation purchased the Millstone cottage property on Georgian Bay that
is close to but is not waterfront property; they have access via a nearby
public dock. The owners of the plaintiff corporation, the Von Stedingks,
occupy the cottage as their family cottage which they maintain they use
only as a recreational property. The plaintiffs claim prescriptive
easement rights to access the beach across lot 6 which the defendants own,
adverse possession of a contiguous triangular parcel of land (hereafter
“the triangle”) which the defendants hold title to, and a prescriptive
easement to their driveway that traverses the triangle. Their entitlement
to use the driveway is not disputed by the defendants. The plaintiff’s
claim also refers to a roadway that bisects lot 6.
The position of the
plaintiffs
[2] In their
statement of claim the plaintiff corporation and its owners, the Von
Stedingks, seek:
a)
a Declaration that the property described as Part Lot 19
Concession 21 in the Township of Tiny, County of Simcoe is entitled to a
prescriptive easement to permit ingress and egress to and from the
Georgina bay shoreline over property described as Lot 6 and Lot 21 on Plan
818 and Part of Broken Lot 19 Concession 21, Township of Tiny as more
particularly described in Schedule “A” of the Statement of Claim;
b)
a Declaration that the Plaintiff is entitled to title by adverse
possession of property described in Instrument 13812 in Township of Tiny,
County of Simcoe, as more particularly described in Schedule “B” of the
Statement of Claim;
c)
in the alternative to (b), a declaration that the property
described as Part Lot 19, Concession 21, Township of Tiny, County of
Simcoe, is entitled to a prescriptive easement over the property described
in Schedule “B” of the Statement of Claim;
d)
an Order directing the Registrar of County of Simcoe to amend
the parcel registers for the properties described in Schedules “A” and “B”
to reflect the matters referenced in (a), (b) and (c);
e)
an interim and permanent injunction restricting the Defendants
from blocking or otherwise obstructing the right-of-way referred to in
(a), (b) and (c);
f)
an Order requiring the Defendants to remove the fence and gate
placed across right-of-way referred to in (a), or in alternative,
requiring the Defendants to proved the Plaintiffs with a key to any lock
that might be placed on fence or gate;
g)
Costs of this action, plus G.S.T.; and
h)
Any further and other relief as this Honourable Court deems
just.
[3] Counsel for the
plaintiffs maintains that these rights to access the beach across lot 6,
and to use the triangle, including the driveway traversing the triangle,
had crystallized by the time the plaintiffs purchased the property through
a tax sale. The rely on these rights having been established by their
predecessors in title, the Giffords and the McGees. The plaintiff claims
not only that the previous occupants of what is now the Millstone cottage
have used the triangle and driveway in question since 1947 or 1948, but
have also used the triangle for access to the general store, which had
been there for a very long time. The plaintiffs rely in large part on a
Statutory Declaration filed as part of the purchase and sale closing
documents, by a predecessor in title, Murray McGee.
The position of the
defendants
[4] The defendants
seek the dismissal of the plaintiff’s action and nominal damages for
trespass. Counsel for the defendants object to any finding of adverse
possession of the triangle, and argue that such a claim has not been made
out on the facts or the law. Also, they object to any finding of any
easement over lot 6, arguing that permission negates prescription, and
they maintain that lot 6 was on occasion closed off entirely, and that
neighbours and friends walked across the lot only with the permission of
the Cleary family, not to mention that a ‘no trespass’ sign was posted on
lot 6.
[5] They claim that
the issue of an easement over the road (lot 21) that bisects lot 6 is
academic and redundant since it is a road, not assumed by the
municipality, and anyone can use it. This easement, if permitted, would
significantly restrict what Clearys can do. Lot 21 is a road privately
owned by the Clearys that has been used with permission by other
cottagers, without anyone asserting title to it. The Clearys say that Mr.
Von Stedingks can use the road like anyone else.
[6] With respect to
the driveway crossing the triangle, the defendants will not object to its
use and are not opposed to a finding that it becomes a part of the titled
deed for an easement. The defendants are, however, strongly opposed to
the plaintiffs acquiring a fee simple ownership of the triangle with any
right to rent or sell it. The defendants claim that the plaintiffs are
simply trying to increase the value of their property.
Issues
[7] It should be
noted that the property in dispute has been surveyed at different times
over the years and no one takes issue with the correctness of the
surveys. In other words, this is not a case about the parties being
unclear about where the property lines are. Rather, the issues are about
whether prescriptive rights have been acquired through use by the
plaintiffs, or their predecessors in title, to lot 6, and whether through
adverse possession of the triangle, the defendants’ rights have been lost.
[8] There is no
issue with respect to the driveway in question traversing the triangle.
The defendants do not dispute that the plaintiffs’ have acquired a
prescriptive easement right to this driveway.
Findings of fact
[9] On September 4,
2002 the Von Stedingks submitted their tender to the Township of Tiny and
purchased the property on September 12, 2002.
[10]
Prior to purchase the plaintiffs made inquiries from the Clearys
about receiving formal beach access rights across lot 6. It was only
after closing that they received the Statutory Declaration of Murray McGee
as part of their closing documents. Upon reviewing the Statutory
Declaration they believed they had entrenched rights to the triangle under
the doctrine of adverse possession, and rights to use lot 6 for beach
access.
[11]
Although prior to submitting their bid on the tax sale, Vicko Von
Stedingk and Paula Von Stedingk were attempting to obtain formal rights to
access the beach via lot 6, it was only after Vicko Von Stedingk submitted
his tender for the tax sale, that he received original purchase documents
and a survey from the Giffords which revealed to him that the triangle was
a separate piece of property. This was subsequent to the closing date and
after they had become the registered owners. Mr. Von Stedingk denied that
he saw the survey from O’Dale & Pottage Ltd. dated November 28, 1997,
until closer to the date that the Giffords moved out.
[12]
Vicko Von Stedingk, a real estate sales representative and a
management consultant, whose company, Millstone Consulting Services Inc.,
purchased what is now known as the Millstone property, together with his
wife, rented the Porter cottage for four summers from June 1999 to 2002
prior to purchasing the Millstone property. From the Porter cottage they
had beach access through lot 6 of the Cleary property although this was
not a necessary route since the Porter cottage was beach front property.
[13]
After they bought the Millstone property, no person impeded their
access to the beach along lot 6 prior to the commencement of this
litigation, at which time the Clearys installed a lock on their fence that
went across lot 6.
[14]
Access to the beach was the driving force behind this litigation.
In August 2002, prior to purchasing the Millstone property, Mr. Von
Stedingk sent an email to Paul Cleary asking for a more formalized access
arrangement to the beach before deciding to submit his bid to purchase the
property. The Clearys expressed reservation about granting him a formal
permanent right but was prepared to allow beach access on some basis.
Mr. Von Stedingk understood from his correspondence with them that the
Clearys believed that none of his predecessors had any perfected rights to
access the beach across lot 6. The discussion which was amicable at first
deteriorated to the point where the Clearys refused them permission
saying, “you are not permitted to enter on any of our property unless
specifically invited. … We will involve police if necessary.” Indeed the
police were called when the Von Stedingks removed the padlock which the
Clearys’ placed on their fence in 2003. Mr. Von Stedingk acknowledged
that he broke the lock and was charged with mischief. The criminal charge
was withdrawn.
[15]
The Von Stedingks at one point cut some bush to store a sailboat
and trailer in the triangle. They also piled some excess logs lying around
for some future use, and when they excavated the septic field located on
the Millstone property they placed some of the dirt on the western portion
of the triangle in order to level out some land. They also planted cedars
along the road for privacy. Throughout, no one interfered with their use
and the Von Stedingks never asked the Clearys for permission to use the
triangle.
Statutory Declaration of Murray McGee
[16]
It was the Statutory Declaration of Murray McGee dated in December
1, 1997, that caused the Von Stedingks to believe that they had certain
legal rights to the triangle and lot 6. In His Statutory Declaration
Murray McGee stated as follows:
I, my parents, my
sister and her children, have traversed the access driveway described in
the surveyors real property report, by O’Dale and Pottage Limited, dated
the 28th day of November, 1997 and indicated as traversing the
triangular shaped parcel designated as instrument No. 13812. My own and
my family’s utilization and possession of these lands has been open and
continuous and in the manner of ownership for the period of time from 1947
to the date hereof.
My use of the driveway
portion of these lands has been continuous from on or about 1947 when my
father caused the logged cottage, also known as the survey sketch, to be
constructed and has been continued, on a regular and annual basis to the
date hereof.
In addition to the
driveway portion designated on the said surveyors sketch, myself and
members of my family and guests have utilized that strip of land for
firewood, for playing horseshoes and generally maintained and treated
these said lands as our own since on or before 1947 and continuing to the
date hereof.
In addition to the
foregoing, myself and my sister and members of her family have, as to my
sister and myself, regularly accessed the water front by traveling over
part 6 on registered plan No. 818 for the Township of Tiny and she and I
did so on a regular and annual basis from on or about 1947, and as to my
sister, until approximately 1983 and as to myself, such travel over the
said part 6 continued annually until the date hereof.
Both myself and members
of my family, the occupants of the Cedar Point General store and various
families living to the south have, as was my observation, regularly
traversed these lands in order to access the beach for boating recreation
and as to a farmer named Pose for watering cattle.
It was always my
understanding and I verily believe that of the others mentioned herein,
that this thirty (30) foot strip was intended as a public access-way to
the water front.
[17]
Murray McGee testified at trial that he first came to Cedar Point
as a child with his father and that his mother, Ruth McGee, then purchased
what is now the Millstone property in 1948, when he was ten years old. He
recalled the property was forested and when shown the coloured sketch
stated that the triangle portion, although demarcated in a different
colour, was “for all intents and purposes” a part of the Millstone
property. At trial Murray McGee adopted his Statutory Declaration.
[18]
Murray McGee recalled that he went to his family cottage during the
summers with his sister and mother and during other long weekends and
vacations as well. He recalled as a child and teenager using the
Millstone property and the adjacent and contiguous triangle to build a
tree house. He also recalled accessing the beach not only through the
Matheson’s property on lot 3 but also through lot 6. He showed the court
photos of boats he had access to over the years and said he often used lot
6 to get to the beach and would anchor and launch his boat at the
beachfront on lot 6, recalling one photo was taken in the 1980’s and
others being from the 1960’s and 1970’s. He recalled sometimes using the
government dock to launch his boats.
[19]
Murray McGee testified that no one stopped him from using lot 6 and
that he never asked anyone’s permission to use lot 6. He recalled other
people using lot 6 as their access route to the Cedar Point store. He
recalled that a local farmer would sometimes bring his cow down to the
shore for water, using lot 6. He specifically recalled Jack Deschamps,
who operated the store, taking him on a boat ride and accessing the boat
on the beach via lot 6. He remembered that the store location moved;
although unsure, he thought it might have been built in the 50’s or 60’s,
but was unsure when its location was moved.
[20]
He recalled that his sister, Ms. McCarthy, and her family used the
cottage in the mid 50’s. He thought she might have continued going to the
cottage when he began teaching in 1964.
[21]
He obtained his property from his mother in 1985 but only
registered it in 1997, days before he sold his property to Gifford. At
trial he said it was only in 1997 that he saw a document showing the
triangle as a separate parcel on a survey that Gifford obtained, and first
realized that the triangle was not a part of his cottage property.
[22]
Apart from using the cottage as recreational property and building
a tree house on the triangle or accessing the beach, he recalled that his
family also cut down some trees on the triangle to make a clear-cut area
where a horseshoe pit was installed by his father.
[23]
In cross-examination Murray McGee acknowledged that from 1955 to
about 1959 his attendance at the cottage decreased because he was playing
baseball during the summers in a senior league. He also acknowledged that
he recalled seeing “private property” signs on trees on lot 6 in the mid
60’s and that after his father died in 1973, he learned that the Clearys
had title to lot 6, and in the mid 70’s even approached them through an
intermediary to see if they would sell him the 30-foot strip. He
testified that the knew when he listed his property for sale that it was
not being represented as having a deeded water access. He also testified
that when he sold the property to the Giffords he did not intend to convey
legal rights over lot 6.
[24]
Murray McGee testified that his use of the cottage diminished when
he obtained another property elsewhere in the late 80’s.
[25]
In view of the above evidence presented at trial, I place very
little weight on the Statutory Declaration of Murray McGee. It is clear
that his evidence at trial differed from what he stated in the Statutory
Declaration, and the evidence brought forth in cross-examination
contradicted his statements in the Statutory Declaration. He did not go
to his family cottage for many years and later after he acquired the
cottage was also absent because he had a second cottage that afforded him
better boating facility.
[26]
In 1997 the McGee property was sold to David Gifford. In a letter
dated September 21, 1999, Michael Cleary wrote to Messrs. Chris Gifford,
Mike Gifford and David Gifford, advising them that Lot 6 was private
property and asked them not to use Lot 6 to access Georgian Bay. Michael
Cleary did not receive any response to his letter from the Giffords,
however there were no further reports from the residents of Lot 5 or Lot 7
that any of the Giffords used Lot 6 after he sent them this letter.
[27]
This is evidence of clear interruption in use and a withholding of
permission when the Clearys denied access to the Gifford’s over lot 6. I
accept the evidence of the defendants that the Giffords never used it
again. This is evidence that lot 6 was not used in a ‘notorious and
open’ fashion by the predecessors in title to the plaintiffs.
[28]
Michael Gifford testified that he first went to Cedar Point when he
was eight years old, some 42 years earlier. He was familiar with the
Millstone cottage that his brother David owned, which he occupied between
1999 and 2002, including throughout the winter months. He testified that
he used lot 6 for beach access and that no one ever prevented him from
doing so and he never asked anyone for permission. He said he also saw
other neighbours and First Nations people from Christian Island skidoo on
lot 6 in the winter. He said he used the property up to the time his
brother lost it in a tax sale in 2002.
[29]
He acknowledged that in 1999 he received a letter to cease and
desist from using lot 6 but said he did not pay any attention to it.
[30]
He said he also walked across the triangle and stored his boat and
some firewood wood on this piece of property. He said he placed his
10-foot boat in a small clearing but he never played horseshoes. He said
until he saw a survey at the time of sale in 1997 that he did not know
that it did not belong to his brother.
[31]
In cross-examination Michael Gifford acknowledged that legal
correspondence he found in the cottage stated that his brother had no
deeded access to the driveway but only rights as set out in Murray McGee’s
Statutory Declaration. He said he read this but ignored the fact.
[32]
I place little weight on Michael Gifford’s evidence, which I find
to be highly unreliable given his casual attitude about the contents of
legal documents and the letter from Mr. Cleary. Also, evidence of the
defendants contradicts his assertions that he continued to use lot 6 after
receiving the letter from Mr. Cleary. Ultimately, his evidence lends
little support to the plaintiff’s claim.
[33]
William Johnson testified that during the time his family had a
cottage at Cedar Point he would sometimes use lot 6 to go to the store.
However, this was prior to 1955 and not relevant to the plaintiff’s claim.
[34]
Janet McIntyre testified that that although her family had a
cottage in the Cedar Point vicinity and she heard lot 6 being referred to
as “the right of way”, that she did not use the Millstone property and
never knew that lot 6 was privately owned. Her evidence is of no
assistance to the plaintiffs.
[35]
The defendants own some 160 acres of the lands adjacent and
surrounding the Millstone property, which have been in the Cleary family
since the mid 1950’s. In 1964 they purchased additional property which
included the triangle and lot 6. It is clear from their evidence that
they were familiar with the area having spent summers at their family
cottage since the mid 1950’s. It is also clear that once they acquired
the property in dispute in 1964, that they asserted their private
ownership by erecting a fence and posting “Private Property” or “No
Trespass” signs on lot 6. They also saw no use being made of the
triangle, other than perhaps a horseshoe pit which they thought was
partially on what is now the Millstone property.
[36]
At trial Paul Cleary testified that he first recalled going
to the Johnson cottage with his family around 1957 when he would have been
about 9 years old. This was before his parents purchased their cottage at
Cedar Point in the 1950’s from Jessie Culligan. He said his family
maintained the original forested habitat of their property. Paul Cleary
testified in his examination for discovery that his father had their
property surveyed around 1964 and made it known to neighbours that lot 6
was private property.
[37]
He was asked what use Mr. McGee made of lot 6 and acknowledged that
he was not always at the cottage and that if Murray McGee said he made
particular use of lot 6, that he might not know, as different individuals
may have used it without his permission. He acknowledged that the Clearys
had an agreement with Jack Deschamps and his family whom they permitted
access to the water via lot 6. He said several families came to them and
they gave their permission fairly routinely over the years. He mentioned
Kirsten, Bruce from the store, and the Poses as example of people who
received permission to use lot 6 to access the beach. He recalled that
his father once called the OPP to eject people from their land. He
further recalled one account from his father about excluding scuba divers
from using lot 6 and that they had also excluded the Giffords. He also
recalled that periodically his father would install a chain across lot 6
at the split rail fence or at another location further up the hill to
assert their private ownership. He was asked and did not recall whether
the triangle was used for a horseshoe pit or that any wood was cut down.
He said that to his knowledge Butch McGee and his sister Mary Ellen were
rarely present at their cottage.
[38]
After his parents died, the Cleary brothers inherited the property
and Michael Cleary became a 1/3 owner in 1992. He said he knew that lot 6
was not designated as a right-of-way by the Township of Tiny. There used
to be a Cedar Point General Store near lot 6 with a footpath that still
exists to where the store once was, from lot 6 and also to the water along
lot 6. He met Murray McGee two to three times and over the years saw him
by the store or at his property. He said he never saw Murray McGee
cutting wood in the triangle area and that his family had never cut wood
there. He said the Clearys used the triangle only to walk across it. He
acknowledged he saw horseshoe facilities on the triangle but never saw
McGee’s sister use the triangle. In the 1960’s and 1970’s he recalled
that First Nations people from a nearby Indian Reserve would walk across
the property and that his father spoke to the Chief about it, and although
they thereafter limited their use they were never precluded from using
it. During the previous fifty years, primarily when he was there during
the summer months, he did see people walk across lot 6. He recalled that
people asked his family for permission to walk across their property,
usually on their way to the store to buy ice cream cones. He recalled
first seeing the Millstone cottage 49 years prior to trial and was aware
that the occupants used a driveway that crossed the triangle.
[39]
In his evidence at trial, Michael Cleary testified that his parents
purchased lot 13 where they built a cottage, and years later Michael
Cleary built a cottage on lot 14. He recalled spending summer months at
the family cottage, and later his own cottage, throughout much of his
life. Lot 6 was purchased by his family in 1964 and was the smallest
beach front lot, being only 30 feet wide. It had trees, bush, woods but
no building on it. His family contacted the Ministry of Natural Resources
to have several thousand trees planted on their property, including lot 6
and the triangle, to maintain its natural wooded habitat. He recalled
that his family used their property, including lot 6 and the triangle, for
personal enjoyment, privacy and protection of the natural habitat. He
recalled there had been old logging roads going through their property.
Apart from seeing a horseshoe pit that he thought might have been
partially on the Millstone property, he did not recall seeing any other
use being made by others of the triangle. He recalled seeing the split
rail fence being installed a couple of years after his parents purchased
lot 6 in 1964. He recalled that his father was sensitive about his
privately owned property and would post “No Trespass” or “Private
Property” signs, either on the fence on lot 6 or nearby. He testified
that he never ever saw the McGees or the Giffords cross over lot 6.
[40]
He testified about a letter his father, Frank Cleary Senior, sent
to Ruth McGee on May 20, 1979 concerning the possible purchase of the
McGee property. In this letter his father stated that he owned, “the
property immediately adjoining the western, as well as northern extremity”
of her property. He also mentioned that he owned the “private road”. This
is further evidence that the predecessors in title of the Millstone
property were aware that the Clearys owned the adjacent lands and
contradicts the evidence of Murray McGee that he didn’t know about this
until the sale of their property to the Giffords in 1997.
[41]
Michael Cleary also testified about the letter he sent to Jeanne
McIsaac, a real estate agent, after being advised that the Millstone
cottage was advertised for sale as a property having “deeded water access”
in order to refute this. In this letter he wrote: “I just want to ensure
that there is no confusion … our land is private property and we have had
a fence constructed about 10 years ago to avoid any misunderstanding that
it may be general public access.” Ms. McIsaac confirmed in her reply
dated November 21, 1996 that the property was not being advertised as
having “deeded water access”. This is further evidence of the Clearys’
being vigilant and responsive to an possible encroachment on their
property.
[42]
Frank Cleary Junior testified that he recalled his parents bought
lot 13 when he was 17 years old. After completing their cottage he
recalled that they spent some 3-6 weeks there every summer until his
mother died in 1981. In 1964 they acquired the property in dispute in
this trial. He recalled that the triangle area was just a wooded area and
that they intended to keep it that way. He recalled the split rail fence
being installed on lot 6 and that it was his obligation to post a No
Trespass sign or a Private Property annually on the fence or nearby.
[43]
Upon reviewing the evidence of the Cleary brothers I find that it
was straightforward, consistent, and although not always specific about
the periods of time, as it spanned the years from 1955 to 2001, it had
sufficient details of specific events and independent corroboration to
satisfy this court that it is reliable and credible evidence.
[44]
I find that the Clearys did give permission to other neighbouring
cottagers to cross over various portions of their property including lot
6, in order to gain beach access or walk to a store that at one time was
in the vicinity of lot 6. I also find that by giving permission and on
occasion withholding permission and posting no trespass signs, the
defendants restricted access and on occasion denied access absolutely to
lot 6 respecting the predecessors in title to the Millstone property.
[45]
Respecting the driveway, that crossed the triangle, the defendants
acknowledge that they have permitted all occupants to what is now the
plaintiffs’ property access to the driveway across the triangle. The
Clearys knew that the Giffords, McGees and now Von Stedingks drove over it
to get to their lot and do not dispute their established easement right to
use this driveway.
[46]
I find that any use of the triangle, for example to store boats
was, at best, periodic and never continuous or notorious. I accept
Michael Cleary’s evidence that he never saw a boat stored on the Gifford
property and that he walked past this area often on his way to the store.
Analysis
The relevant time period
[47]
Concerning the chronology of title to the Millstone property, there
were two predecessors in title to the plaintiffs. On April 28, 1948,
sixteen years before the Clearys purchased their property, Ruth Devlin
McGee purchased the parcel of land now owned by the plaintiff
corporation, Millstone. She transferred the property to her son, Murray
McGee, on May 30, 1985. Murray McGee did not register his deed until just
prior to transferring title to Gifford on December 10, 1997. Mr. Gifford
owned it until it was purchased by the plaintiffs, the corporation owned
by the Von Stedingks, from the Township of Tiny in a tax sale on December
12, 2002. A year before the plaintiffs purchased the property, the Land
Title system replaced Land Registry in the region, on October 9, 2001.
[48]
In my view the plaintiffs claim is limited to the period
immediately prior to the Land Titles Act taking effect over these
lands.
i) Land Titles system
[49]
Lot 6 and what the triangle were converted to the Land Titles
Act,
R.S.O. 1990, c. L.5 (the “LTA”) from the Registry Act,
R.S.O. 1990, c. R.20 on October 9, 2001. Section 51(1) of the LTA
provides:
Despite any provision
in this Act, the Limitations Act or any other Act, no title to and
no right or interest in land registered under this Act that is adverse to
or in derogation of the title of the registered owner shall be acquired
hereafter or be deemed to have been acquired heretofore by any length of
possession or by prescription.
[50]
Since the plaintiffs had purchased the property in 2001, after it
was transferred to the Land Titles system, whatever the Von Stedingks have
done since conversion to the Land Titles system is therefore irrelevant.
Their predecessors had one year to assert rights.
ii) Doctrine of lost modern grant
[51]
The plaintiffs also rely on the doctrine of lost modern grant,
which they claim extends the period of time beyond the limitation period
that would otherwise apply for establishing a prescriptive right. In the
present case, they claim that since their predecessor in title purchased
the property in question in 1948 that this court can rely on any 20-year
period during a span of close to fifty years between 1948 and 2001, to
establish a claim for a prescriptive right as they can rely on the
Property Limitations Act provisions for the establishment of
prescriptive rights, together with the doctrine of lost modern grant.
[52]
The defendant's counsel objected, arguing that without the
plaintiff’s reliance on the doctrine of lost modern grant being
specifically pleaded, he is not sure which twenty-year period is being
relied on, particularly since the plaintiff appeared to only rely on the
twenty year period from 1948 to 1968.
[53]
The doctrine of lost modern grant emanates from English common
law:
[It] sets up a
fictional grant and allows courts in situations where “time immemorial”
could not be established, to move from the fact of twenty or more years of
use to the presumption that such use was based on an earlier grant which
was lost.
[54]
See: Anne Warner La Forest, ed. Law of Real Property 3rd
ed., looseleaf (Aurora: Canada Law Book, 2008) at 17-11.
[55]
However, the period of twenty years is not any twenty year period
as the plaintiff asserts, but is taken to be the period immediately
before the easement is challenged. See: Anne Warner La Forest, ed.
Law of Real Property 3rd ed., looseleaf (Aurora: Canada
Law Book, 2008) at 17-13. [my emphasis]. Consequently I find that this
doctrine is of no assistance to the plaintiff as it does not expand the
period to any 20-year period going back to 1948 as the plaintiff claims.
Whether the
plaintiffs have a prescriptive easement right to access the beach via lot
6
[56]
To succeed in a claim to an easement under the Limitations Act,
the claimant must establish that the use of the property in question was
continuous, uninterrupted, open, peaceable, with the knowledge of and
without objection from the owner for 20 years. See Skoropad v. 726950
Ontario Ltd. (1990), 12 R.P.R. (2d) 225 (O.C.J.) at paras. 45 and
46, McRae v. Levy (2005), 28 R.P.R. (4th) 291 (O.C.J.)
at para. 56, Temma Realty Co.
Ltd. v. Ress
Enterprises Ltd. et al., [1968] 69 D.L.R. (2d) 195 (C.A.) at
para. 6.
[57]
Lot 6 and the triangle were converted to the Land Titles Act,
R.S.O. 1990, c. L.5 (the “LTA”) from the Registry Act,
R.S.O. 1990, c. R.20 on October 9, 2001. Section 51 of the LTA
provides:
Despite any provision of this Act, the Real
Property Limitations Act or any other Act, no title to and no right or
interest in land registered under this Act that is adverse to or in
derogation of the title of the registered owner shall be acquired
hereafter or be deemed to have been acquired heretofore by any length of
possession or by prescription.
[58]
Section 32 of the Limitations Act states:
Each of the respective
periods of years mentioned in sections 30 and 32 shall be deemed and taken
to be the period next before some action wherein the claim or matter to
which such period relates was or is brought into question, and no act or
other matter shall be deemed an interruption within the meaning of those
sections, unless same has been submitted to or acquiesced in for one year
after the person interrupted has had notice thereof, and of the person
making or authorizing the same to be made.
[59]
Pursuant to this provision, a 20-year period must be an
uninterrupted period that has existed immediately before an action is
commenced. If there has been an interruption once a potential right has
been created and that interruption has been submitted or acquiesced to,
any potential right is extinguished if an action is not commenced within
one year from that date. See
Temma Realty Co. Ltd. v.
Ress Enterprises Ltd. et al., [1968] 69 D.L.R. (2d)
195(C.A.) at para. 6, McCulloch v. McCulloch (1910), 17
O.W.R. 639 (Ont. H.C.J.) at para. 8, McRae v. Levy (2005),
28 R.P.R. (4th) 291 (O.C.J.) at para. 56.
[60]
Bruce Ziff defines a right to an easement in Principles of
Property Law, 4th ed. (Toronto: Thompson Carswell, 2006) at
p. 362, as follows:
The common law
recognizes that rights to an easement may emerge out of continuous use,
under “a judicially-endorsed piece of pious perjury” known as
prescription. Put frankly, the law pretends that an easement was granted
at some time in the past, as evidenced by long, uninterrupted use.
[61]
The elements of an easement are defined as follows by Diana Ginn in
Law of Real Property, 3rd ed., looseleaf (Aurora: Canada
Law Book, 2008) at 17-3:
At common law the essential characteristics of an easement are:
a) There must
be a dominant and servient tenement;
b) An easement
must accommodate the dominant tenement;
c) The
dominant and servient owners must be different persons; and
d) A right
over land cannot amount to an easement unless it is capable of forming the
subject matter of a grant. (Internal citations omitted)
[62]
As Ginn further explains at p. 17-3 – 17-4:
An easement must have
both a dominant tenement to which the easement is attached and a servient
tenement over which the right is granted. The dominant and servient lands
need not be side by side. However, there must be sufficient proximity to
show that the dominant lands are capable of being benefited by the
easement. (Internal citations omitted)
[63]
A prescriptive right to an easement in other words involves the
recognition of a right established by use over time.
[64]
The plaintiffs claim for an easement over lot 6 fails for the
following reasons:
[65]
First, the
Millstone property owners do not require this property in order to enjoy
their own property because they have beach access via a public dock that
is nearby; See Rose v. Kriesser, [2002] O.J. No. 1384 at para. 46
(Ont.C.A.):
the easement must be
reasonably necessary for the better enjoyment of the dominant tenement
rather than merely conferring an advantage upon the owner and rendering
his ownership more valuable.
[66]
Secondly, the evidence relied on by the plaintiffs’ fails to show
that their predecessors in title, on a balance of probabilities, have used
lot 6 in the manner asserted by the plaintiffs, namely to access the beach
via lot 6, in a continuous and uninterrupted manner for a period of 20
years. In a letter dated September 21, 1999, Michael Cleary wrote to
Chris Gifford, Mike Gifford and David Gifford, respectively, advising them
that Lot 6 was private property and asked them not to use Lot 6 to access
Georgian Bay. Michael Cleary did not receive any response to his letter
from the Giffords, however there were no further reports from the
residents of Lot 5 or Lot 7 that any of the Giffords used Lot 6 after he
sent them this letter. The 1999 letter from Michael Cleary to the
Giffords, denying them the permission to use the property known as lot 6
effectively interrupted any prior use they made of lot 6. Also, in this
same letter Mr. Cleary referred to his correspondence with the real estate
agent three years earlier in which the Clearys confirmed that the
Millstone property did not have deeded water access.
[67]
This I find was an interruption in use and Mr. Gifford submitted or
acquiesced to this interruption by failing to respond to the letter in any
way. Accordingly, the plaintiff’s claim to an easement over lot 6 must
fail.
[68]
There is no at all evidence that lot 6 was ever used in any way by
the previous registered owners of the Millstone property, namely Ruth
McGee or David Gifford. Accordingly the plaintiff has failed to establish
that any use of lot 6 by its predecessors in title was continuous and
uninterrupted for the requisite period of time.
[69]
Mr. McGee’s evidence was that, after 1955, he visited the Millstone
Property on the Thanksgiving weekend and on the occasional weekend during
the summer months. The plaintiff did not call Mr. McGee’s sister or any
other alleged users of the Millstone Property during the time it was owned
by Mrs. Ruth McGee as witnesses at this trial. Mr. McGee’s sister is
alive and resides in the Province of Ontario. It can only be assumed that
her evidence would not have assisted the plaintiff.
[70]
The plaintiff has failed to establish that any use of lot 6 by its
predecessors in title was open and with the knowledge of the Clearys.
Each of the Clearys testified that they did not have any knowledge that
Mr. McGee was traversing lot 6. Mr. McGee further testified that he never
saw the Clearys on the intermittent and sporadic occasions when he might
have been traversing Lot 6 (although he would not have recognized them).
The Clearys also did not have any knowledge that Mr. Gifford was
traversing Lot 6 after 1999, if he did in fact do so.
[71]
The plaintiff has also failed to establish that any use of lot 6 by
its predecessors in title was without objection by the Clearys. The
Clearys each gave evidence that a split rail fence was erected across Lot
6 in the late 1960s. The Cleary’s also gave evidence that Lot 6 was
posted as “private property” or “no trespassing” during their time of
ownership. Mr. McGee, Mr. Von Stedingk and Mrs. Von Stedingk all admitted
that they saw a “private property” sign on lot 6. Accordingly, the
Clearys clearly objected to the use of lot 6 by anyone who did not have
their permission to use it.
[72]
Express or implied permission by an owner to the use of a right of
way prevents a user from acquiring a prescriptive right. While the use
does not need to be exclusive, it must be “as of right”. As stated by the
Ontario Court of Appeal in Henderson v. Volk, use “permitted
through good neighbourliness, and enjoyed on that basis, is not sufficient
to acquire an easement by prescription.” See: Henderson v. Volk
(1982), 35 O.R. (2d) 379 (C.A.) at para. 21, Mason v. Morrow
1998 CanLII 1663 (ON C.A.), (1998), 114 O.A.C. 194 (C.A.) at para. 5,
Temma Realty Co. Ltd. v. Ress
Enterprises Ltd. et al.,
[1968] 69 D.L.R. (2d) 195(C.A.) at para. 9.
[73]
The Clearys testified that they permitted their friends and
neighbours to cross Lot 6 to go to and from the beach to the Cedar Point
store. While the Clearys did not expressly permit Mr. McGee to cross Lot
6, nor could they have as they did not know Mr. McGee was traversing Lot
6, Mr. McGee was a resident of Cedar Point and a neighbour of the Clearys.
Mr. McGee also had knowledge that Lot 6 was owned by the Clearys by at
least the mid 1970s as he completed a title search of the property at that
time. Mr. McGee also saw the “private property” sign on the lot and the
fences across it. Accordingly, any use by Mr. McGee of Lot 6 could not
have been “as of right”.
[74]
In order to establish an easement, the user that is being relied
upon must “accommodate” the dominant tenement. An easement cannot be
established where the substantial user was by persons who had no interest
in the dominant tenement itself. Accordingly, any evidence that residents
of Cedar Point or residents of Christian Island traversed Lot 6 to access
the store is irrelevant to the plaintiff’s claim to an easement over Lot
6. None of this use (whatever it may be) was for the benefit of the
Millstone property. See Temma
Realty Co. Ltd. v. Ress Enterprises Ltd. et al.,
[1968] 69 D.L.R. (2d) 195(C.A.) at para. 17, Skoropad v.
726950 Ontario Ltd. (1990), 12 R.P.R. (2d) 225 (O.C.J.) at para. 41.
[75]
In conclusion the test for prescriptive easement is not met with
respect to lot 6.
Whether the plaintiffs have acquired any
adverse possession rights to use the triangle
[76]
Bruce Ziff defines the doctrine of adverse possession in
Principles of Property Law, 4th ed. (Toronto: Thompson
Carswell, 2006) at p.126, as follows:
A person asserting a
squatter’s right must have an intention to possess (animus possidendi)
and must demonstrate that requisite factum. The degree of physical
control needed to maintain an adverse possession claim reveals the
malleability of the possession concept and the manner in which its
definition is informed by policy considerations. To succeed, the acts of
possession must be open and notorious, adverse, exclusive, peaceful (not
by force), actual (generally), and continuous. If any one of these
elements is missing, at any stage during the statutory period, no rights
against the paper owner can be successfully asserted. The precise nature
of the required acts will depend on the type of property, so that the
demanded level of control will be different for scrub land, farmlands,
cottage property, or a residential lot. (Internal citations omitted)
[77]
Following this definition, adverse possession allows for the
extinguishment of the rights of the paper owner.
[78]
A claim for adverse possession is founded on s. 4, 5 and 15 the old
Limitations Act, which in combination provides that paper
title to land can be extinguished if and when another adversely possesses
that land for a period of at least 10 years. To succeed in a claim, a
claimant to a possessory title must establish that he/she had actual
possession of the disputed area for the statuary period; that he/she had
the intention of excluding the true owner; and that the true owner’s
possession was effectively excluded for the statutory period. For the
claimant to establish actual possession of the land, the possession of the
land must be visible, open, notorious and continuous. Sporadic, seasonal,
infrequent or temporary occupation is insufficient. See Skoropad v.
726950 Ontario Ltd. (1990), 12 R.P.R. (2d) 225 (Ont. Gen. Div.) at
paras. 23 and 24, Masidon Investments Ltd. v. Ham (1984), 45 O.R.
(2d) 563 (C.A.) at paras. 14 to 18, Lehal v. Murray, [2001] O.J.
No 4861 (S.C.J.) at paras. 7 to 9.
[79]
Except for the driveway in respect of which a prescriptive easement
right is not denied by the defendants, the plaintiffs claim for adverse
possession to the triangle, fails for the following reasons.
[80]
Between 1991 and 2001 the only evidence relied on by the plaintiffs
is that of Murray McGee’s Statutory Declaration and Michael Gifford, which
are disputed by the evidence of the Clearys. I prefer the evidence of the
Clearys that the triangle was not used in a manner asserted by the
plaintiffs. As stated earlier, Murray McGee’s Statutory Declaration was
in effect discredited by his own evidence at trial.
[81]
There was no clear evidence of Murray McGee, whose family owned the
triangle beginning in 1948 until they sold it in 1997 to the Giffords,
that they possessed the triangle as part of the Millstone property. I
prefer the evidence of the Clearys that the only use they saw was a
horseshoe pit on the grounds. The other use of cutting down trees or
storing a boat for a period of time was simply not continuous use and even
if it was done, I find it was not done with an intention to exclude the
paper title owner from their use of the property. The evidence of all
witnesses was that the triangle is largely comprised of brush, trees and
vegetation. Gifford testified that he stacked wood and that he
occasionally kept his small boat on the triangle. He did not say how long
he did this for and it was not seen by the Clearys. McGee testified that
he might have played horseshoes on a small portion of the triangle
although there was no clear evidence that any part of the horseshoe pit
was actually on the triangle. The Clearys testified that they were not
aware of any of these uses of the triangle by McGee or Gifford.
Accordingly, any such use cannot constitute open and notorious
possession. The triangle is a forested area. It is apparent that prior to
the Von Stedingks occupation it remained a forested area at all times and
that no specific use whatsoever was made of the triangle by anyone adverse
or otherwise.
[82]
The degree of physical control needed to maintain an adverse
possession claim was simply not established. The acts of possession
alleged were not open and notorious, exclusive, or continuous. If any one
of these elements is missing, at any stage during the statutory period, no
rights against the paper owner can be successfully asserted. Any use by
the plaintiff’s predecessors in title to store a boat or stack firewood on
the triangle therefore did not exclude the Clearys and was not adverse to
their interests and title to the triangle.
[83]
The precise nature of the required acts will depend on the type of
property, so that the demanded level of control will be different for
cottage property such as this where the cottagers only spend a few weeks
on their property each summer. In the present case the cottagers, such as
the McGees and even the Giffords were, I find, absent for significant
periods of time, having consideration to normal cottage use. The
plaintiff did not establish that its predecessors had actual possession of
the triangle. There is no evidence whatsoever that the registered owners
of the Millstone Property ever undertook any steps to adversely possess
the triangle.
[84]
While the plaintiffs do not dispute use of the driveway to the
Millstone property, this does not establish “actual possession” over the
entire triangle.
[85]
David Gifford’s evidence is that he bought the Millstone property
in December 1997, at the same time that the property was transferred from
Ruth to Murray McGee. Michael said he didn’t move in until the summer of
2000 which is a period of more than one year and so there was a gap in
use.
[86]
McGee said he had no intention in his 1997 transfer to convey any
rights over the triangle or lot 6 to Gifford. McGee evidently didn’t
believe he had a right over either of those properties, since he had no
intention of conveying any right. Also, from his evidence he didn’t use
the triangle or lot 6 believing it was as of right. It can be taken that
he only conveyed everything he had and he didn’t believe he had further
rights to convey.
Trespass
[87]
Trespass is defined as any unjustifiable intrusion by one person
upon land in possession of another and is actionable without proof of
damage. Exemplary damages may also be awarded in a trespass action where
the conduct of the trespasser has been malicious or high-handed or where
the trespasser has shown a callous disregard for the plaintiffs and their
rights. See Pretu et al. v. Donald Tidey Co. Ltd., [1966] 1 O.R.
191 (Ont. H.C.), Lehal v. Murray [2001] O.J. No 4861.
[88]
I reject the defendants claim for a finding of trespass. I accept
the evidence of the Von Stedingks that they traversed lot 6, believing
that they could rely on the Statutory Declaration of Murray McGee. I am
not satisfied that they had the requisite intent to trespass. I therefore
dismiss the claim for trespass.
Conclusion
[89]
In conclusion, only the plaintiffs’ claim for right to use the
driveway is allowed. Their other claims of a prescriptive easement right
to access the beach via lot 6 and rights acquired by adverse possession to
the triangle, are dismissed. The defendants counter claim for trespass is
also dismissed.
[90]
Counsel are requested to arrange for an attendance before me,
within 15 days of today’s date to address the issue of costs. In the
alternative, counsel may submit written submissions, no longer than five
pages, and arrange for a follow-up teleconference to address the issue of
costs.
___________________________
Madam Justice R. Boyko
Released: July 28, 2008
