April 2006

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

Where a landowner crosses a neighbour’s land to access his own property for a period of 20 years or more, the landowner may then acquire a legally enforceable “prescriptive easement” notwithstanding the neighbour’s later objection. In what circumstances will a landowner be able to successfully establish such a legal right of access? If such access has been exercised not with the consent of the neighbour, is simple acquiescence by the neighbour sufficient to establish the access right? Does it matter that the requisite period of user has been followed by a substantial period of non-user before the right is asserted?

The Nova Scotia Court of Appeal recently considered a case in which the plaintiff had unsuccessfully asserted at trial a claim to a right-of-way from a public highway over his neighbour’s lands based upon a period of use in excess of 20 years which terminated more than 30 years before the access right was asserted by the plaintiff. The trial judge had dismissed the plaintiff’s claim on the basis that user by the plaintiff’s predecessor in title was equally consistent with permission having been provided by the neighbours as with the user having been exercised as of right.

The Court of Appeal allowed the appeal and held that, notwithstanding the substantial period of non-user, the plaintiff had successfully established his right to a prescriptive easement. In overruling the trial judge’s decision, the appellate court relied upon the legal doctrine of lost modern grant which provides that a plaintiff is entitled to a legally enforceable prescriptive easement if he can demonstrate use and enjoyment of a right-of-way under claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years even if the 20 year period expires prior to assertion of the right by court action. At issue in the case was access rights exercised by the plaintiff’s predecessor in title from at least 1942 until 1963 by commercial logging trucks across the defendant’s lands to haul logs from a woodlot located on the plaintiff’s property. The plaintiff had acquired his lands in 1991 and 1993. There was no mention of the claimed right-of-way in either his deed or the deeds of his defendant neighbours. When the plaintiff attempted to assert his access rights in 1997, the defendants had blocked the access roadway which by then was overgrown with trees and brush.

The Court of Appeal held that, although the onus was on the plaintiff to establish that the defendants’ predecessors in title had not given their permission for this logging access, their absence of consent could be established by evidence of their acquiescence to the logging trucks crossing their property. The court stated that “user which is acquiesced in by the owner is ‘as of right’; acquiescence is the foundation of prescription.”

In deciding that the logging access by the plaintiff’s predecessors in title was as of right and not by permission, the court considered both the use of a gate on the defendant’s property by the logging trucks and the character of their user to be determinative. The court held:

“From the evidence at trial it would appear that the gate was not designed nor secured nor located to prevent access over the (defendant’s) property. Moreover, the truckers opened the gate and entered the property as if as of right – they did not replace the poles either when entering or when leaving, as one might expect from persons proceeding on a neighbourly basis …"

“Here trucks drove through the (defendant’s) property, past the house and through the gate to the (plaintiff’s) property and then, loaded with logs, pulpwood and Christmas trees, travelled back the same way to the (public highway) … the use of the roadway to the (plaintiff’s) property by commercial logging trucks was such that it could not have been missed by the owner of the servient tenement.”

As a result, the court concluded:

“… Once there is proof of acquiescence in acts of user which are of such a character as to support a claim of right, the claimant has established that the acts were as of right unless the owner points to some “positive acts” on his or her part which either expressly or impliedly grant permission. Here, there was no evidence that the owner, at any time, took any positive steps to prevent the use in question or did anything else from which a grant of permission reasonably could be implied.”

With respect to the defendant’s position that the extended period of non-use amounted to an abandonment or extinguishment of the plaintiff’s prescriptive easement rights, the court held:

“The non-user may be explained by the fact that the dominant owner had no need to use the easement, in which case it will not be enough to establish abandonment … it has been said that abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use of it.”

In the absence of express permission, legally enforceable prescriptive easement rights may be established through user for more than 20 years even though only by a neighbour’s acquiescence. Once the necessary period of user is established, such rights will not necessarily be defeated even by an extended period of non-user. To defeat such a claim, neighbouring landowners must be in a position to demonstrate “positive acts” on their part which establish that access was exercised only with their permission.