Court of Appeal

NOVA SCOTIA COURT OF APPEAL

Citation: Shea v. Bowser, 2013 NSCA18

Date: 20130208

Docket: CA 374501

Registry: Halifax

Between:

James David Shea and Linda Shea

Appellants

v.

Loyal F. Bowser and Wendy Lynn Bowser

Respondents

Judge:                  The Honourable Justice David P.S. Farrar

Appeal Heard:      September 18, 2012

Subject:                Property Law. Interpretation of Deeds. Grant of Right-of-Way.      

Summary:            The appellants made an application to the Supreme Court for a declaration that they have a right-of-way over the property of the respondents to access three lots they own. They claimed an express grant of right-of-way to two of the lots and a right-of-way of necessity to the third lot.  The application judge found that, although they had an express grants of right-of-way to two of the lots, the express grants of right-of-way was not over the lands of the respondents. He also found that they had not established a right-of-way of necessity to the third lot.

Issues:                  Did the application judge err in determining that the rights-of-way to two lots did not burden upon this property?

                             Did the application judge err in failing to find a right-of-way of necessity to the third lot?

Result:                  Appeal allowed, in part.  The application judge erred in failing to find that the appellants had an express grants of right-of-way to two of their lots over the lands of the respondents.

                             The trial judge did not err in finding that they did not have a right-of-way of necessity to the third lot.

                             The costs below, in favour of the respondents, is rescinded.  The parties shall bear their own costs, both on the application and on this appeal.