NOVA SCOTIA COURT OF APPEAL
Citation: Mason v. Partridge, 2005 NSCA 144
Date: 20051115
Docket: CA 214682
Registry: Halifax
Between:
Leonard Mason
Appellant
v.
Wayne Partridge, Marie Partridge,
Thomas Partridge and Lori Brown
Respondents
Judges: Cromwell, Freeman and Oland, JJ.A.
Appeal Heard: May 12, 2005, in Halifax, Nova Scotia
Held: Appeal allowed with costs, as per reasons for judgment of Oland, J.A.; Freeman and Cromwell, JJ.A. concurring.
Counsel: Donald L. Macdonald, for the appellant
Daniel J. MacIsaac, for the respondents, Wayne Partridge and Marie Partridge
Hector MacIsaac, for the respondents, Thomas Partridge and Lori Brown
Reasons for judgment:
[1] In a decision dated December 29, 2003 Chief Justice Joseph Kennedy of the Nova Scotia Supreme Court dismissed the claim of the appellant, Leonard Mason, for a declaration that he was entitled to a right-of-way over the lands of the respondents. Mr. Mason’s appeal is based on the doctrine of lost modern grant.
[2] For the reasons which follow, I would allow the appeal.
Background
[3] Mr. Mason owns some 250 acres in North Grant, a rural area north of the Town of Antigonish. The Mason property straddles the Wrights River. The respondents, Wayne and Marie Partridge, own a property bounded on the west by that river and on the north by the Mason property. Some years ago they conveyed part of their property to Wayne Partridge’s brother, Thomas Partridge, and Lori Brown who are also respondents on this appeal.
[4] The three properties are depicted on Schedule “A” below:
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SCHEDULE “A”
The Mason property lies to the north of Lot 1, the property now owned by Thomas Partridge and Lori Brown, and to the north of the lands retained by Wayne and Marie Partridge.
[5] A portion of the Lower North Grant Road, a public highway, appears at the bottom of Schedule A. While the public highway ends south of Lot 1, the roadway actually proceeds northward through Lot 1 and over the remaining lands of Wayne and Marie Partridge. Leonard Mason claims that he has a right-of-way over the road between the end of the Lower North Grant Road and his property.
[6] In 1943 Mr. Mason’s father conveyed the Mason property to the appellant’s brother Daniel Mason who was known as Donald Mason. Leonard Mason obtained the land from Donald’s heirs-at-law by deeds recorded between 1991 and 1993. None of the deeds mentioned the right-of-way claimed.
[7] Wayne and Marie Partridge purchased their property (including Lot 1) from Elgin Allen in 1986. Their deed does not refer to a right-of-way. Mr. Allen testified that when he purchased that property in 1963, there was no mention by the vendor or in the deed to the effect that the land was subject to a right-of-way for the Mason family. Nor is there any such reference in the deeds in 1959, 1956, 1953, 1952 and 1946 to the predecessors in title of the Partridge property.
[8] Lot 1, the lands Wayne and Marie Partridge conveyed to Thomas Partridge and Lori Brown, was once owned by James Sullivan. The Sullivan homestead was abandoned years ago. It and the roadway extending from the end of the Lower North Grant Road to the Mason property are shown on aerial photographs taken in 1945 which were entered into evidence. During the trial, witnesses made frequent reference to the Sullivan property and to the Sullivan house.
[9] After he acquired title from his brother’s heirs-at-law, Leonard Mason used the roadway to access the land east of the river for hunting and walking purposes. He had a woodland appraisal done of that land. In 1997, “out of courtesy” he asked Wayne Partridge permission to use the roadway. Mr. Partridge refused. The roadway south of the Mason boundary line was subsequently blocked. In 1999 Mr. Mason initiated proceedings for a declaration that he was entitled to a right-of-way pursuant to either the Limitation of Actions Act, R.S.N.S. 1989, c. 258 as amended or the doctrine of lost modern grant.
[10] At the day long trial in 2003, Leonard Mason, Wayne Partridge and Thomas Partridge testified as did witnesses on their behalf. In his written decision released that December 29, the trial judge stated:
40 On the evidence I am satisfied that the roadway that is the subject of this action, the roadway that travels from public road number 245 along, the North Grant Road and then over the former Sullivan property, now owned by the defendants, to the Masons property, was used to take timber off the Mason land east of the river and was accessed for other reasons from at least the early 1940's until as late as 1963.
[11] The trial judge concluded that because the right-of-way was not used for the 20 years immediately prior to the commencement of this action, Mr. Mason could not claim for a prescriptive easement based on the Limitations of Actions Act. This portion of his decision is not under appeal.
[12] The trial judge’s reasons continued:
48 The plaintiff's evidence does raise the issue (possibility) of “lost modern grant."
49 Having found that the roadway was used to remove logs from the early 1940's (I find this to be 1942, if not before) until 1963. I am satisfied that there was at least a 20 year period of "open" use. Those trucks going past the Sullivan house loaded with logs would fit this description.
He then considered whether the use had been without permission and cited Mason v. Morrow (1998), 114 O.A.C. 194 (C.A.) and Henderson et al. v. Volk et al. (1982), 35 O.R. (2d) 379 (C.A.). The trial judge stated that the onus is on the plaintiff to show that the use of the easement from the early 1940's to the early 1960's was done without permission of the servient owners. He concluded that Mr. Mason had failed to establish that the use enjoyed was not by permission.
Issues
[13] Mr. Mason sets out the issues as follows:
1. Did the trial judge err in law by imposing on him the obligation to prove the absence of permission granted his predecessors in title, and other users, to use the right-of-way?
2. Did he err in law by failing to consider the question of acquiescence to use the right-of-way in regard to whether or not that right-of-way was used without permission, and did he rely on authorities that were not factually or legally analogous on this issue?
3. Did he err in law by attributing erroneous significance to evidence found to relate to the question of whether or not permission to use the right-of-way had been granted?
While they filed no notice of contention, the respondents submitted in their factum that if an easement had been established under the doctrine of lost modern grant, such an easement had been abandoned or extinguished.
[14] In my view, it is not necessary to consider the first issue. I am satisfied that, had the significance of acquiescence, and the case law in that regard, been fully considered, the appellant’s claim under the doctrine of lost modern grant would have succeeded and the judge would have found that that the right-of-way had not been abandoned or extinguished.
Standard of Review
[15] In Creager v. Provincial Dental Board of Nova Scotia, [2005] N.S.J. No. 32 (QL version), Fichaud, J.A. summarized standards of review from decisions of the courts thus:
[14] Appeals from decisions of courts on points of law are reviewed for correctness. An error of law which is extractable from a mixed question of fact and law similarly is subject to the correctness standard. Factual matters, including inferences, and mixed questions of fact and law with no extractable error of law are reviewed for palpable and overriding error. Housen v. Nickolaisen, [2002] 2 S.C.R. 325, at paras. 8, 10, 19-25, 31-36. . . .
[16] This court discussed the concept of palpable and overriding error in Flynn v. Halifax (Regional Municipality), 2005 NSCA 81 as follows:
[14] Palpable error was clearly and simply described recently by the Ontario Court of Appeal in Waxman v. Waxman (2004), 186 O.A.C. 201; O.J. 1765 (Q.L.):
[296] The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: Housen at 246 [S.C.R.]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
[297] An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241 at 281 [S.C.R.].
. . .
[300] . . . the "palpable and overriding" standard applies to all factual findings whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inference from primary facts. ...
Analysis
[17] Mr. Mason’s appeal is based on the doctrine of modern lost grant. Charles MacIntosh, Nova Scotia Real Property Practice Manual, at 7-21 described that doctrine as follows:
. . . The [doctrine of lost modern grant] is a judge-created theory which presumes that if actual enjoyment has been shown for 20 years, an actual grant has been made when the enjoyment began, but the deed granting the easement has since been lost. However, the presumption may be rebutted.
[18] In Henderson, supra the Ontario Court of Appeal set out the requirements for establishing an easement pursuant to either a limitations statute or the doctrine of modern lost grant in the following passage:
14. It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right‑of‑way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20‑year period immediately preceding the bringing of an action.
[19] The trial judge relied upon two decisions for the proposition that the claimant must also establish that the enjoyment of an easement was without permission: Gilfoy v. Westhaver (1989) 92 N.S.R. (2d) 425, [1989] N.S.J. No. 268 (N.S.S.C., T.D.) and Publicover v. Publicover (1991), 101 N.S.R. (2d) 75 (N.S.S.C., T.D.). The Nova Scotia Real Property Practice Manual, supra referred to these decisions and then stated at 7-23:
. . . The claimant must show such use was made without force, secrecy, or evasion and without consent of the servient owner. (Emphasis added)
[20] The case law does not unambiguously support the conclusion concerning the burden of proof, but in my view, it is not necessary to resolve that issue to decide this case.
[21] The enjoyment required to acquire an easement must demonstrate certain characteristics. Gale on Easements, 17th ed. (London: Sweet & Maxwell 2002) at p. 208 states:
The civil law expressed the essential qualities of the user, by the clear and concise rule that it should be “nec vi, nec clam, nec precario”.
None of the evidence in the proceeding on appeal indicates that the enjoyment was by violence. Nor was it secret - the trial judge was satisfied that there was at least a 20 year period of “open use”. Thus the question becomes whether the user meets the third requirement that it be “nec precario.”
[22] In that regard, Gale on Easements at p. 214-215 states:
3. Nec precario
The enjoyment must not be precarious.
What is precarious? “That which depends not on right, but on the will of another person.” . . .
Enjoyment had under a licence or permission from the owner of the servient tenement confers no right to the easement. . . .
[23] The trial judge considered whether the use of the roadway had been without permission; that is, whether it had been used as of right. He found that, as in Mason, supra the evidence was “at least equally consistent with expressed or tacit permission” by the owners of the servient property.
[24] I will briefly summarize the evidence at trial relevant to the question of permission to use the roadway.
[25] William C. Reddick testified that starting in 1952, he had worked for many years for a Jim MacPherson. The Masons paid MacPherson to transport logs, pulpwood and Christmas trees from their property. Mr. Reddick would drive the truck over the Lower North Grant Road right across the Sullivan property, past the Sullivan house, and over the Mason property to the deer field where he would turn the truck around and come back. Between 1955 until about 1959, he could have been 10, 20 times over there with the truck. Asked whether he ever stopped to request permission to go through, he replied that there was nobody at the Sullivan property to ask; it was always vacant when he went and hauled loads out.
[26] Barbara Theriault lived with her uncle, James Sullivan, and her grandmother in their house on the Sullivan property from 1942 until 1944 and again from 1947 to 1948. In addition, from age six when her father died until age 15 (roughly 1939 to 1948), she was back and forth there every weekend. Asked at trial whether she had observed anyone proceeding past the Sullivan house towards the Mason property, she responded that “lots of times” she saw trucks going past the house onto the Mason property and that when they came out, they would be loaded with logs. Ms. Theriault never heard anyone objecting to the trucks going through. Nor to her knowledge did anyone ever ask permission to do so. She never discussed with her grandmother and uncle whether the trucks had permission.
[27] Barbara Theriault was the only witness who testified as to a gate across the roadway. Her evidence in that regard, in its totality, reads as follows:
Q. Now you indicated that you saw trucks going in and out of the property?
A. Yes I did.
Q. Coming out carrying wood. Did you ever see anyone else use the roadway?
A. Not that I recall.
Q. Okay. Now was there ever a gate on that road?
A. There was a gate. It was way over back of my grandmother’s house. It was over in the field. There was, it was really not a very fancy gate. It was a type of thing with um, burrs in it, like long poles you had to put in. Like, there was (sic) four or five of them and you’d have to put them in. After the trucks would go in the evening, when they wouldn’t be coming back anymore, I often walked over with my grandmother and we put those poles back in the gate to keep the cattle, maybe, from coming in on the ...
Q. Right.
A. ... on the gardens and stuff.
Q. And on those occasions when the trucks would come and go through to the Mason property, would they open the gate when they...
A. They’d open the gate and push the poles aside and they’d be left there all day until they were done.
Q. And as far as you know they never asked permission.
A. No. They never stopped.
[28] Leonard Mason testified that from 1968 when he returned to Nova Scotia he never asked permission to cross from the end of the Lower North Grant Road to the property owned by his brother Donald and then by him, and that no one ever tried to stop him from doing so until 1997 when the roadway was blocked. Wayne Partridge gave evidence that, during his ownership of his property, he never knew of Donald Mason or any member of Donald’s family using the Lower North Grant Road.
[29] In his reasons, the trial judge stated:
55 The onus is on the plaintiff to show that the use of the easement from the early 1940's to the early 1960's was done without permission of the servient owners.
56 In this case we are dealing with usage that last occurred more than 40 years ago. Neither the dominant nor servient landowners at that time are alive to testify today.
57 I will repeat what witnesses said about "permission."
58 Leonard Mason testified "I never asked permission, no one ever tried to stop me" and later "I wasn't involved in decisions at that age."
59 Margaret Terrieau (sic) testified from the perspective of the Sullivan family: "We never objected ‑ it was a routine" (meaning the log trucks coming across the Sullivan property). She also said "I don't know about permission." She testified to a gate on the property that was opened and closed by the truck drivers.
60 William Reddick testified that when he drove trucks across the property between 1955 and 1959, no permission was sought. At that time the owner Robicheau was no longer living on the land so there was "nobody to ask permission from."
61 I find that, as was the situation in Mason v. Morrow, the evidence is "at least equally consistent with expressed or tacit permission" by the owners of the servient property.
62 Those trucks travelling across that land and proximate to the house were as likely to have been there by permission as not.
63 The existence of a gate across the roadway that could be opened and closed by the drivers is indicative of access by permission.
64 While it is no doubt correct that the plaintiff's witnesses had never been aware of permission being sought, they were either children or employees at the relevant time and would not be likely to have been involved in negotiations for use.
65 Having found that the evidence of use supports the possibility of prescription by "lost modern grant," I conclude, finally, that the plaintiff has failed to establish that the use enjoyed was not by permission.
66 Having failed to do so I find that a right‑of‑way by prescription has not been established by the evidence. (Emphasis added)
[30] The trial judge’s decision never touches upon the inferences that might be drawn from acquiescence on the part of a servient owner when another uses his land with his knowledge but without his express agreement. In my respectful opinion, the trial judge erred by failing to recognize that absence of consent can be established by evidence of acquiescence or evidence sufficient to raise an inference of acquiescence. This was an error of law which resulted in a palpable and overriding error of fact.
[31] The distinction between acquiescence and permission and the importance of acquiescence to a claim by prescription is described by Gale on Easements at p. 215 thus:
The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is “as of right”; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not “as of right”. Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence. The positive act or acts may take different forms. The grant of oral or written consent is the clearest and most obvious expression of permission. But there is no reason in principle why the grant of permission should be confined to such cases. Permission may also be inferred from the owner’s acts. It may be that there will not be many cases where, in the absence of express oral or written permission, it will be possible to infer permission from an owner’s positive acts. Most cases where nothing is said or written will properly be classified as cases of mere acquiescence. But there is no reason in principle why an implied permission may not defeat a claim to use “as of right”. Such permission may only be inferred from overt and contemporaneous acts of the owner. (Emphasis added)
[32] As stated in Gale on Easements at p. 207, the element relating to whether the use was “as of right” “. . . requires one to look at the quality and character of the user and to ask whether the user is of a kind which would be enjoyed by a person having such a right.” Regrettably, the trial judge failed to do this, focussing instead on evidence of whether or not permission had been expressly granted. With respect, the governing legal principles required the judge to ask himself whether the use which he found to have been made of the property was such that it would “. . . convey the impression that such a right [was] asserted . . .” (Gale at pp. 207-8). The learned authors continue:
. . . it is not relevant to inquire into the subjective beliefs of the persons carrying on the user and, in particular, it is not necessary for such persons to show that they believed that they already possessed the right claimed.
The judge, respectfully, erred by failing to address his mind to the question of whether the acts of user support the inference that they were carried out on the basis of a claimed right. There is virtually no dispute about the nature of the use and it is therefore appropriate for this court to make the necessary finding on the basis of the trial record.
[33] In the case under appeal, there was no evidence of any grant of easement or of any written consent. As the trial judge noted, neither the dominant nor servient landowners of the time were alive to testify at trial. He was led to his conclusion that the evidence was “at least equally consistent with expressed or tacit permission by the owners of the servient tenement” by two factors:
(a) the gate across the roadway which could be opened and closed by the truck drivers; and
(b) the trucks were as likely to have been on the land by permission as not.
[34] I will first consider the gate and the inferences that might reasonably be drawn from its existence and location. That a physical obstruction exists is of itself not sufficient to establish a grant of permission. See for example Gilfoy, supra where gates and “no vehicles” and “no trespassing” signs had not stopped the plaintiffs’ use of the roadway and the court held that they were entitled to a permanent right-of-way under the doctrine of lost modern grant.
[35] Even a locked gate may not be probative of the issue of consent. In this regard, Gale on Easements at p. 216 gives the example of a gate which was always locked but for which the owner of the servient tenement had always given the key to the owner of the dominant tenement who asked for it as a matter of right.
[36] The gate on the Sullivan property described by Barbara Theriault was a simple, unlocked structure consisting of long poles. These the truckers pushed aside and left on the ground when they entered. At the end of the day, Ms. Theriault often walked over with her grandmother and put the poles back on the gate “to keep the cattle, maybe, from coming in on the gardens and stuff.”
[37] In his decision the trial judge made no mention of the location of the gate. According to Barbara Theriault, the gate was over in the field, “way over back” of the Sullivan house. Ms. Theriault’s testimony and other evidence places the gate away from the entrance to the Sullivan property which was further south along the Lower North Grant Road, and back towards its northern boundary with the Mason property. Its location is significant - the gate was not where one would ordinarily be located if it were intended to control access to and across the Sullivan property.
[38] From the evidence at trial it would appear that the gate was not designed nor secured nor located to prevent access over the Sullivan 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. It can be inferred from the evidence that the gate was intended to keep the Sullivan cattle from wandering from their owner’s property in the evening.
[39] I turn now to the second factor underlying the trial judge’s conclusion that the evidence was “at least equally consistent with expressed or tacit permission by the owners of the servient tenement.” This was his characterization of the trucks travelling across the Sullivan property and proximate to the Sullivan house as likely to have been there by permission as not.
[40] In this regard, the trial judge relied upon Mason, supra. That case dealt with the use of a stairway. In its decision the Ontario Court of Appeal stated:
5 . . . While the evidence was adequate to establish 20 years uninterrupted user to the knowledge of the owner, it was not sufficient to prove user "as of right": namely, user from which a reasonable person would infer that a right was being claimed or asserted. The evidence was at least equally consistent with user by the appellant's predecessors in title, the Gottliebs, in reliance ‑ throughout their period of occupation ‑ on the express or tacit permission of the owner of the property. User permitted through good‑neighbourliness, and enjoyed on that basis, is not sufficient to acquire an easement by prescription: Henderson et al. v. Volk et al. (1982), 35 O.R. (2d) 379 (C.A.).
[41] In Henderson, the case to which Mason referred, the easement in issue pertained to a narrow sidewalk that ran between the parties’ houses and adjacent to a driveway. Cory, J.A. (as he then was), for the court, stated:
18. From those findings it becomes apparent that the use of the sidewalk was a permissive one and not such as to create an easement. It was no more than good neighbourliness. The essential aspect of an uninterrupted use was not established. As well, the nature of the use has been changed as a result of the asphalt driveway on the Hendersons' lot being used to park cars. This must have substantially interfered with and materially altered the use of the walkway. It is then clear that the Volks had not established the use necessary to establish a prescriptive title under either the Limitations Act or the doctrine of lost modern grant.
In Henderson, unlike the matter under appeal, an uninterrupted use had not been proven.
[42] Moreover, the use made of the roadway from the Lower North Grant Road across the Sullivan property was far different than that in the Mason and Henderson cases. In both those cases the right-of-way claimed was by pedestrians over a stairway and over a sidewalk respectively. See also Skoropad v. 726950 Ontario Ltd., [1990] O.J. No. 1635 (Ont. C.J.) which concerned a path to a parking lot. Here trucks drove through the Sullivan property, past the house and through the gate to the Mason property and then, loaded with logs, pulpwood and Christmas trees, travelled back the same way to the Lower North Grant Road.
[43] Cory, J.A. addressed the different types of user and their implications in Henderson thus:
19. The evidence required to establish title by prescription will vary with the nature of the user. The use of a passageway by noisy delivery trucks would be hard to hide. The use of a lane for passage by tractor trailer rigs with motors roaring and air brakes hissing would be difficult to disguise. In those instances the owner of the servient tenement can readily be taken to know of the user of his property. If he makes no objection then his acquiescence to the use can readily be inferred.
20. It is different when a party seeks to establish a right‑of‑way for pedestrians over a sidewalk. In those circumstances the user sought to be established may not even be known to the owner of the servient tenement. In addition, the neighbourly acquiescence to its use during inclement weather or in times of emergency such as a last minute attempt to catch a bus, should not too readily be accepted as evidence of submission to the use.
With regard to the use of a sidewalk as in that decision, he made reference to policy grounds as follows:
21. It is right and proper for the courts to proceed with caution before finding that title by prescription or by the doctrine of lost modern grant was established in a case such as this. It tends to subject a property owner to a burden without compensation. Its ready invocation may discourage acts of kindness and good neighbourliness; it may punish the kind and thoughtful and reward the aggressor. It is reasonable to require those seeking to rely upon the Limitations Act or the doctrine of lost modern grant to establish by clear evidence both the continuous use and acquiescence in such use by the owner of the servient tenement.
[44] The trial judge failed to note the distinction between the types of user in the Mason and Henderson decisions and in the case before him. His did not involve user by pedestrians or another sort of use of modest impact and visibility. The use of the roadway to the Mason property by commercial logging trucks was such that it could not have been missed by the owner of the servient tenement. Barbara Theriault’s evidence makes it clear that the Sullivans certainly knew what was happening. Mason and Henderson are distinguishable on their facts from the case on appeal. The policy reasons underlying them, in particular the encouragement of good neighbourliness, as set out in Henderson, are considerably weaker where the user is not, for example, by people walking over a stairway, a sidewalk or a path but a substantial, noisy and intrusive user by trucks transporting pulpwood and logs over a roadway.
[45] In my view, the judge also erred in another respect of his approach to the evidence about “permission.” As the passage from Gale cited in § 35 makes clear, 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.
[46] The respondents submit that if a right-of-way had been established, it had been abandoned or extinguished. With respect, I am unable to agree.
[47] When Mr. Mason acquired title to the Mason property between 1991 to 1993, the homestead on that property had not been occupied since approximately 1960. The trial judge was satisfied that the roadway access to the Mason property had not been used as a logging road since as far back as 1963 when Elgin Allen purchased it. According to Mr. Allen, the roadway was washed out by 1974. Wayne Partridge testified that it was overgrown with alders. Not until 1997 did Mr. Mason inquire about using the roadway. Thus the period of non‑use was over 30 years, a duration longer than the period of user in this case.
[48] A lengthy period of non-use does not equate to abandonment. According to Gale on Easements, supra at p. 456, more than the fact of non-use is required:
... mere non‑user without more, however long, cannot amount to abandonment. Such non‑user is evidence of which abandonment may be inferred but must be regarded in the context of the circumstances as a whole.
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. A presumption of abandonment will arise where there are circumstances adverse to the user and sufficient to explain the non-user, combined with a substantial length of time during which the dominant owner has acquiesced in that state of affairs or where the dominant owner does some act clearly indicating the firm intention that neither he nor any successor in title of his should thereafter make use of the easement. 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.
[49] Here there was no evidence of any intention on the part of Mr. Mason or his predecessors in title to permanently abandon the right of user. Nor was there any evidence of any act relinquishing that right. Nor were there any obstructions or other circumstances adverse to the user, such as walls or buildings encroaching on the roadway as in Swan v. Sinclair, [1925] AC 227 (H.L.) which was referred to in Finley v. Sutherland (1969), 4 D.L.R. (3d) 586 (N.S.C.A.). The trees and brush which had grown up over the years could be cleared. Nor was there any evidence of any reliance, to their detriment or at all, by the servient owners upon abandonment.
[50] The circumstances and evidence here do not persuade me that the right-of-way was ever abandoned by Mr. Mason.
Conclusion
[51] The trial judge erred in law by failing to recognize that he could infer from use of lands to which an owner acquiesces that such use was “as of right” and sufficient to support a claim of prescription. This led him to making palpable and overriding errors of fact in his findings and inferences, including the likelihood of commercial logging trucks crossing lands simply on a neighbourly basis. As shown above, the claimant had established user of a character which would support a claim of right and the owner had not shown any express or implied grant of permission. The evidence met all the requirements for a right-of-way by prescription by the doctrine of lost modern grant and did not demonstrate that it had been abandoned or extinguished. I would allow the appeal. Mr. Mason is entitled to the right-of-way claimed over the lands of the respondents.
[52] Trial costs paid by Mr. Mason are to be returned to him. He is awarded costs on the trial of $1,500 inclusive of disbursements, and costs on the appeal, including costs relating to the respondents having raised and argued an issue
without having filed a notice of contention, of $1,000 plus disbursements.
Oland, J.A.
Concurred in:
Freeman, J.A.
Cromwell, J.A.