By Donald H. Lapowich

The plaintiff owner of a property has a deed that included a right-of-way for the various defendant cottagers.

This right-of-way was a laneway on the owner’s property. However, it was no longer in the same location as set out in the deed. The cottagers used the lane owned by the owner to obtain access to their cottages. The lane was narrow and was prone to icing in the winter. The municipality would not assume the lane as a municipal road unless someone upgraded it to municipal standards.

The owner did not use the lane and did not want to pay for an upgrade. The cottagers did not wish to upgrade and therefore the owner brought an action. The owner sought Summary Judgment that the cottagers did not have an easement over the lane and an injunction to prevent them from using it. The cottagers in turn brought a Cross Motion to strike out the owner’s Statement of Claim and for Summary Judgment against them.

The court held that the owner’s application should be dismissed and that there should be a judgment in favour of the cottagers. This was appealed by the owner and the appeal was also dismissed. It was clear by the evidence that the deed by which the owner acquired the property through his predecessor stated a right-of-way in favour of the cottagers. In addition, there was evidence of year-round use of the owner’s lane going back at least to 1975. The use of the lane was sufficient to support the judge’s conclusion that the cottagers used the cottage properties and the lane year-round for many years and had obtained an easement by prescription in any event. (Sunnybrae Springbrook Farms Inc.)

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The claimant purchased a small island that was connected to the mainland by a narrow strip of land. The problem was, the strip was generally submerged under water. “Occasionally” the water levels receded, court was told. The claimant sought ownership of the strip and the owner of the mainland objected.

The problem was easily resolved. Since the strip of land was covered by water, the Crown became the owner and it was ruled that no individual could claim rights to it. (Bailey v. Barbour, 2011)

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A plaintiff and defendant owned adjacent cottages. One cottage fronted on a lake, while the second one was located behind it.

The property behind had a right-of-way to maintain a pipeline to draw water from the lake into a pump in the front cottage’s boathouse. In addition, the rear cottage had a right-of-way of access to the lake for recreation.

The owner of the front cottage wanted each right-of-way to be exercised on one side of the front cottage, whereas the documents as drafted created rights-of-way on each side of the front cottage. The court refused to combine the two so as to run on one side only, as to do so would be to rewrite the instruments giving the rights-of-way. (Lywood v. Hunt)

Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.