Court of Appeal

Nova Scotia Court of Appeal

Citation: Muir v. Day, 2023 NSCA 21

Date: 20230330

Docket: CA 513235

Registry: Halifax

Between:

David Muir and Carol Winnifred Muir

Appellants

v.

John J. Day and Judith A. Day

                    Respondents

Judge:	The Honourable Justice Elizabeth Van den Eynden
Appeal Heard:	October 6, 2022, in Halifax, Nova Scotia
Subject:	Real property law; express grant; declaration of easement; implied reciprocal and mutual easement; prescriptive rights
Summary:	On appeal, the appellants sought to overturn an easement declaration. The parties own adjoining cottage properties and both used a well-established driveway to access their respective cottages. A dispute arose over the respondents’ right to use the driveway and park. The appellants also obstructed the respondents use of the driveway and parking area. In the court below, the respondents applied for an easement declaration arising by express grant (deed) and in the alternative, by prescription. They also claimed damages and injunctive relief. The application judge: declared an implied reciprocal and mutual easement to the benefit of the parties over the disputed driveway; found in the alternative, a similar right arose by prescription; denied the respondents’ parking easement and damage claim; ordered the appellants to cease interfering with the driveway easement and to remove the obstructions.  The appellants say the relief granted should be set aside because the judge committed several errors of law in his analysis.
Issues:	1. Did the judge err in finding a reciprocal and mutual easement? 2. Did the judge err in his alternative finding of prescriptive rights?
Result:	Appeal dismissed with costs. The judge was correct in concluding that the only reasonable and necessary inference to be drawn from all of the facts and circumstances surrounding the Deed in question was a “common intention” for the grantor (and his successors) to retain “the right to continued use of the Disputed Driveway”. This Court observed the facts and circumstances of this case were sufficient to find that the reservation in the Deed itself created the easement, and the judge need not have resorted to an implied reciprocal and mutual easement. Further, the judge did not error in his alternative finding. There was ample evidence before the judge to support his alternate prescriptive rights finding.

Nova Scotia Court of Appeal

Citation: Muir v. Day, 2023 NSCA 21

Date: 20230330

Docket: CA 513235

Registry: Halifax

Between:

 

David Muir and Carol Winnifred Muir

 

Appellants

v.

 

John J. Day and Judith A. Day

                    Respondents

 

 

Judges:	Bryson, Bourgeois, Van den Eynden JJ.A.
Appeal Heard:	October 6, 2022, in Halifax, Nova Scotia
Written Release	March 30, 2023
Held:	Appeal dismissed with costs, per reasons for judgment of Van den Eynden, J.A.; Bryson and Bourgeois, JJ.A. concurring
Counsel:	Colin D. Bryson K.C. for the appellants John O’Neill, for the respondents

 

 

 

Reasons for judgment:

Overview

[1]             The appellants (David Muir and Carol Muir) seek to overturn a declaration of an easement in favour of the respondents (John J. Day and Judith Day).

[2]             The parties own adjoining cottage properties. Carol Muir and Judith Day are sisters and each were gifted their respective parcel of land from their late father. There was a well-established driveway, in use for decades, that travelled over each parcel and was used by the parties to access their respective cottages.

[3]             A dispute arose over the Days’ right to use the driveway and park on the Muirs’ lot. The Muirs also erected a garage and a fence that obstructed the Days’ use of the driveway. This led to the Days’ application for relief in the court below.

[4]             The Days sought a declaration of an easement arising by express grant (deed) and in the alternative, by prescription. The Days also sought damages and injunctive relief to enjoin the Muirs from interfering with their right to use the driveway and to require the Muirs to remove the obstructions.

[5]             The Muirs claimed the Days’ use of the driveway and parking area was based on neighbourliness or unspoken implied permission between family members and never evolved into a prescriptive right. Further, the attempt by the Days to expand the parking area was never permitted and was consistently opposed.

[6]             Justice John A. Keith of the Supreme Cout of Nova Scotia heard the application. In his decision, (published as 2022 NSSC 20) he determined the Days had an easement over the disputed driveway and, alternatively, a similar right arose by prescription, but denied their claim for a parking easement and damages. He ordered the Muirs to cease interfering with or obstructing the driveway easement and to remove the obstructions they had erected on it.

[7]             The Muirs appeal, alleging the judge erred both in declaring an easement and in his alternative prescriptive finding.

[8]             I am not persuaded the judge erred and would dismiss the appeal with costs. My reasons follow, beginning with a summary of the relevant background, the issues raised on appeal and the appellate standard of review.

Background

The conveyance and driveway dispute history

[9]             The lands owned by the parties were once owned by Cecil and Hazel Miller, the parents of appellant Carol Muir and respondent Judith Day.

[10]         Cecil and Hazel Miller[1] acquired a lake front cottage property in Annapolis County in 1958, as joint tenants. The Millers enjoyed this property as their summer home with their three children Donald, Carol, and Judith.

[11]         Hazel Miller died in 1970. After her death, Mr. Miller began subdividing his lake front property and gifting lots to his children.

[12]         On December 21, 1973, Mr. Miller deeded a lake front lot lying to the west of the family cottage to his son Donald and his spouse Jean, who built a cottage on it. This lot is not affected by the dispute between the parties.

[13]         On August 30, 1979, Mr. Miller, together with his then wife Rose Miller, deeded a lake front lot lying to the east of his cottage to his daughter Carol Muir. In July 1984, Carol conveyed this lot to herself and her husband, David Muir, as joint tenants. Also in July 1984, the Muirs acquired an adjacent lot directly behind their cottage lot. In around 1981/82 the Muirs built a summer cottage on the lot Mr. Miller had conveyed to Carol. In later years they expanded their cottage footprint and added outbuildings.

[14]         Mr. Miller retained the remaining lands lying in between the lots gifted to his east and west. The original family cottage was on the lands he retained. Mr. Miller continued to enjoy his cottage until his death in January 1991.

[15]         Pursuant to Mr. Miller’s Will, he bequeathed his daughter Judith Day “[t]he one-half portion of my cottage lot at Sandy Bottom Lake, together with the cottage located thereon”. As noted, whether his spouse Rose Miller was living or dead at the time of Mr. Miller’s death is not evident in the record. However, by Quit Claim deed executed on September 30, 1991, Donald Miller in his capacity as sole executor of his father’s estate and in his personal capacity, together with his siblings, released any interest they had in Mr. Miller’s cottage lot in favour of Judith Day. The Quit Claim deed also contained recitals that Mr. Miller owned the cottage lot in “fee- simple” at the time of his death. This deed contains the same legal description as the 1958 deed to Mr. Miller and his then wife Hazel and excepts the lots conveyed to Donald and Jean Miller and Carol Muir.[2]

[16]         Judith Day later conveyed her interest in her cottage lot to her and her spouse John Day as joint tenants. Over time the Days expanded the footprint of their cottage which brought it closer to the boundary line between the Day and Muir properties and the driveway.

[17]         There was no evidence presented of any formal subdivision plan or survey at the time Mr. Miller began conveying lots to his children. There was nothing to confirm lot boundaries and the locations of any easements other than the metes and bounds description contained in the respective deeds.

[18]         However, in 1996, about five years after Mr. Miller's death, his children obtained what was referred to as a “retracement survey”. This survey was obtained at a time when the parties were not embroiled in conflict and litigation. The parties presented and accepted that the 1996 survey depicted their respective boundaries and the location of the driveway.

[19]         In his decision the judge noted an apparent inconsistency between the metes and bounds description contained in the 1979 deed from Mr. Miller to Carol Muir and the survey. I will return to the discrepancy later, but for now note the judge accepted the parties’ agreement on their respective boundaries.  

[20]         To orient the reader, the judge reproduced the 1996 survey following para. 5 of his decision. For convenience I reproduce it here:

[21]         The parties agreed the survey depicts:

•        Donald and Jean Millers’ lot is on the west.

•        The upper lot on the east bordering the lake was conveyed to Carol Muir. (The lower eastern lot bordering the roadway reflects the adjacent parcel purchased by the Muirs in 1984.) The 1996 survey depicts the footprint of the Muir cottage as of 1996 but does not reflect the current size of the cottage and placement of additional outbuildings.

•        The parcel Mr. Miller retained and later conveyed to Judith Day, lies in the middle. Similarly, the survey depicts the original Miller cottage (building closest to the end of the highlighted driveway) and outbuilding. As noted, the Days cottage expansion brought the cottage footprint closer to the Muir boundary line and closer to the driveway.

[22]         The parties further agreed the portion of the survey highlighted in yellow accurately reflects the location of the driveway. The driveway is approximately 10 feet wide and traverses the lot Mr. Miller retained (now owned by the Days) and the lot Mr. Miller conveyed to his daughter Carol Muir. The highlighted driveway section is well established. It has been in place since at least 1958. The driveway served as the access route to the Miller cottage when it was owned by Mr. Miller and then subsequently by the Days. It also served as the access route to the Muir cottage.

[23]         The portion of the driveway that is not highlighted and branches off to the right in the direction of the Muir cottage, is not part of the disputed driveway. This offshoot was built by the Muirs to access their cottage more conveniently. The smaller branch, also not highlighted, is part of the disputed parking area.

[24]         The record reflects there was no dispute over Mr. Miller’s right to access the historical portion of the driveway that traversed over the property he conveyed to his daughter Carol in 1979, until his death in 1991. Similarly, for many years after Judith Day was gifted the family cottage in 1991, the Days’ right to access the driveway over the Muir lot was also uncontroversial. The focus of the Muirs’ aggravation was with the Days parking on their property instead of their own.

[25]         The dispute between the parties erupted in 2018 when the Days’ use of the driveway began to really frustrate the Muirs. In 2018 the Days made some changes to the area they used for parking. In particular, the Days unilaterally graveled over a larger area on the Muir property to accommodate their parking needs.

[26]         That alteration did not sit well with the Muirs. It led the Muirs to retain counsel and direct a cease-and-desist letter be sent to the Days. The letter set out the Muirs’ position that the Days had no right-of-way or license permitting them to use the portion of the driveway on the Muir property either to access their cottage or to park. The letter also said the Muirs had “plans for their property” but did not elaborate on what their plans were.

[27]         The Days continued to use the driveway and park after receipt of the cease-and-desist letter; however, their ability to do so changed in 2019 when the “plans” the Muirs had for their property materialized.

[28]         The Muirs, without notice to the Days, built a garage on their property. The Days discovered the garage in the early summer season of 2019. The garage was constructed close to the boundary of the Day property. It completely obstructed the disputed parking area plus the driveway near the Day boundary. Not long after the garage was constructed, the Muirs next erected a fence along their boundary line which blocked the area where the driveway crossed over to the Day property.

[29]         The Days asked the Muirs to remove these obstructions—the Muirs refused to do so. This led to the Days bringing an application in the court below.

Application in the Court below

[30]         The Days sought an easement declaration over the driveway they used to access their cottage and over the area they used for parking on the Muir property.

[31]         The Days contended:

•     It was Mr. Miller's intention to grant Carol Muir (and her successors) the right to travel over his property and also to reserve his right (and his successors) to travel over the Muir property as he had been doing from 1958 to access his cottage. In other words, their common intention was to treat the driveway as shared.

•     Their right to use the driveway and to park on the Muir property was confirmed by deed (express grant under seal). In particular, the right-of-way language used in the 1979 conveyance from Miller to Muir (“right of way in company with the Grantor” and “in common with the Grantor”) together with the application of contractual interpretation principles, confirm this intention.

•      In the alternative, the same easement claimed arose by prescription.

[32]         The Days also sought injunctive relief to address the removal of the obstructions to their access (the garage and fence) and monetary damages, including the recovery of costs incurred to create an alternative access route after their access to the shared driveway was blocked.

[33]         The right-of-way language contained in the metes and bounds description of the 1979 deed from Miller to Muir provides:

TOGETHER with a right of way in company with the Grantor to the use of the said private roadway or drive providing access to the lands hereby conveyed to the Grantee and their servants and agents for all purposes necessary for the use of the property in common with the Grantor.

PROVIDED always that the Grantee shall contribute equally to the upkeep and maintenance of that portion of the said right of way used by the Grantee with the Grantor and others.       

                                                                                                [bolding added]

[34]         In response, the Muirs argued:

•        The right-of-way language in the deed was insufficient to reserve any easement to Mr. Miller.

•        Mr. Miller (and subsequently the Days) were caught by the time-honoured rule that a grantor may not derogate from its grant. Mr. Miller, as grantor, had a duty to ensure the deed accurately communicated his intention, and the family relationship between grantor and grantee did not ease the requirement to use clear language.

•        Any application of contractual interpretation principles cannot be applied such that the surrounding circumstances or factual matrix overwhelm the words of the 1979 deed. The interpretation urged by the Days does so and should be rejected.

•        If the Days’ position was accepted, it would result in Carol Muir having received less useable lake front property than her siblings and it should not be presumed Mr. Miller intended that result. Rather, the more plausible outcome of an application of the contractual interpretation principles to the facts and circumstances surrounding the 1979 deed was that Mr. Miller (1) intended more balance in the lot size gifted to each of his children, and (2) he expected the Days to create their own access route to their cottage and not travel over the existing driveway. Thus, Mr. Miller intended to only grant a right-of-way to Carol Muir and her successors and did not intend to reserve any access right of the driveway to himself and his successors.

•        As to the Days’ alternate claim of a prescriptive right, the Days’ use of the driveway and parking area was insufficient to ground their claim primarily because of considerations of neighbourliness between family members, implied permission, and the Days did not use the driveway as Mr. Miller had—which was to drive through the Muir property to the Day property and, as a general rule, park on the Day not Muir property.

[35]         The application was completed within one day with the exception of supplemental written submissions on two points the judge asked the parties to address. The parties filed affidavit evidence in support of their respective claims and were cross-examined.

[36]         The parties submitted written submissions to the judge in advance of the hearing and also provided oral submissions on the day of the hearing. In evidence before the judge was the fact Carol and David Muir migrated their cottage lot to the Land Registration System on August 23, 2010 and their parcel register provided that the Muir lot enjoys the benefit and labours under the burden of a right-of-way/easement with the adjoining Day property. Further, the right-of-way/easement arose from the 1979 Miller to Muir deed and carried through to the deed where Carol Muir added her husband, David, as a title holder.

[37]         The Days addressed the Muirs’ parcel register in both their prehearing written submissions and oral argument. Counsel for the Muirs did not address this evidence in their written submissions but it was discussed during exchanges with counsel for the Muirs and the judge during oral submissions. At the close of oral submissions, the judge asked both counsel (same counsel as on appeal) for further written submissions on these two points:

1. The impact and effect of the Muir 2010 migration on the Day claim and the extent to which the benefit and burden of the right-of-way will be recognized under the Land Registration Act and the common law. In other words, does the parcel register of the Muir property bind them?

2. In the event the Days are successful in establishing an easement, does the court have jurisdiction or authority to reroute the original driveway to avoid having to order the Muirs remove the obstructing garage and portion of the fence blocking access?

[38]         In their supplemental written submissions to the judge, the record reveals disagreement between the parties on the first question and consensus on the second.

[39]         As to the first question, in summary:

•        The Days submitted the 2010 Muir migrated parcel register stands as good legal title unless and until (1) a s. 34 parcel correction request under the Land Registration Act has been submitted to the Registrar and approved, or (2) a s. 35 parcel correction court application has been commenced and granted. Neither has occurred and thus the court must recognize the mutual right-of-way as identified on the Muirs’ parcel register.

•        The Muirs submitted the parcel register does not bind them because it can always be corrected and any correction could flow from the judge’s decision, assuming he ruled in favour of the Muirs. It should not matter if the correction is sought by the Muirs. [3]

[40]         As to the question respecting the judge’s authority to reroute the original driveway, the parties agreed (citing Shea v. Bowser, 2016 NSCA 18) that a right-of-way created by express grant or prescription, cannot be moved unless it falls within one of three recognized exceptions: abandonment, extinguishment, or mutual agreement—none of which applied to the facts of this case.

Summary of decision under appeal

[41]         The judge was called upon to determine whether (1) Mr. Miller expressly or, by operation of law, reserved the right to continue use of the established driveway to access his cottage, and, alternatively, (2) whether the Days established an easement based on prescriptive rights.

[42]         The judge determined the only reasonable and necessary inference to be drawn from all of the facts and circumstances surrounding the 1979 deed is that each of the parties (Mr. Miller and his daughter, Carol Muir) held a common intention that Mr. Miller, as grantor, had the right to continued use of the driveway. As a result, he declared an implied reciprocal and mutual easement.

[43]         In the alternative, the judge determined the Days established an easement based on prescriptive rights. The judge reasoned:

[72]     Subject to the contractual analysis above which confirms an implied easement over the Disputed Driveway, I would also have no difficulty in finding a similar right arises by prescription.

…

[87]     In sum, between 1979 forward, there is ample evidence to demonstrate that the owners of the Day Property (Cecil Miller and then the Days) exercised continuous, open, and notorious use of the Disputed Driveway for well over the 20 years necessary to establish prescriptive rights. A prescriptive right in favour of the owners of the Day Property (as the dominant tenement) arises over that part of the Disputed Driveway located on the Muir Property solely for the purposes of travelling to and from the Day Property, and not parking on the Muir Property.

[44]         Having found the Days were entitled to an easement over the driveway, the judge determined he had no discretion to reconfigure or relocate the driveway. This would come as no surprise to the Muirs because they acknowledged this outcome in their above-noted post hearing submissions.

[45]         The judge determined the Days did not establish a right to park either on the driveway or otherwise on the Muir property. The judge found the facts and circumstances respecting the use of the driveway were different than those surrounding the dispute over the right to park and where. The judge reasoned:

[69]     I reject the Days’ contention that Cecil Miller retained any right to park on the lands granted to Carol Muir in 1979. Among other things, the 1979 Deed speaks only of a right of access. It does not mention a right to park. The right to park is neither a necessary nor obvious nor, respectfully, reasonable inference to be drawn from the circumstances surrounding the 1979 Deed.  The wording of the deed does not suggest any such common intention and, indeed, the Applicants do not suggest a reciprocal or mutual easement. Rather, they claim the right to park along the Disputed Driveway is for their benefit alone (i.e., they expect the benefit of additional parking over the Muir Property but do not recognize a similar right for the Muirs to park on their property).

[70]     Furthermore, I accept the Muirs’ evidence that from 1958 – 1979 and beyond, Cecil Miller parked his car close to his cottage, for his own convenience, and on his own property. I further accept the Muirs evidence that:

1.The issue of parking became an issue of significant tension and controversy between the parties after Cecil Miller died and after the Days expanded the footprint of the cottage closer to the Muir Property;

2.   Altering the footprint of the Days cottage coincided with the Days presuming the right to not only park on the Muir Property with increasing frequency but expanding their presumed “parking area”; and

3.   This dispute over parking festered for years and eventually boiled over in 2019 when the Muirs precipitously blocked access to the Disputed Driveway just before it reached the Days cottage. I do not condone the Muirs’ unilateral decision to block the Disputed Driveway. The Days’ behaviour over the years may have been wrong but there were less dramatic and more appropriate methods for the Muirs to bring this dispute to a head. Still, the manner in which the Days improperly exploited the Disputed Driveway, parked with increasing frequency on an expanding part of the Muir Property and ignored the Muirs’ complaints at least help to explain (not excuse) the Muirs’ response.

[71]     In sum, the common intention which attaches to the Disputed Driveway benefits both sides equally and recognizes a reciprocal right to access their cottage properties. In so far as parking is concerned, the Disputed Driveway is not a one-way street which favours the Days over the Muirs.

[46]         The judge enjoined the Muirs from interfering with or obstructing the Days’ easement over the driveway. He ordered the Muirs, at their expense, to remove the obstructions blocking the Days’ access over the driveway, in particular, the garage and the part of the fence built across the driveway. If the Muirs failed to do so within the time frame ordered by the judge, the Days would be entitled to take such steps as are necessary to complete the work with the reasonable and associated costs being at the Muirs’ sole expense.

[47]         The judge was not satisfied the Days established their damage claim and dismissed it. This conclusion is not under appeal.

[48]         I will supplement additional background in my analysis as required, including expanding on the judge’s reasons.

Issues

[49]         The Muirs raise two grounds of appeal:

          1. Did the judge err in finding a reciprocal and mutual easement?

2. Did the judge err in his alternative finding of prescriptive rights?

Standard of Review

[50]         The first ground, which involves the interpretation of the 1997 deed from Mr. Miller to his daughter Carol Muir, is a question of mixed fact and law and subject to the palpable and overriding error standard of review. If a question of law can be extracted from the questions of mixed fact and law, then that question will be subject to the correctness standard. (See Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at para. 53 and Housen v. Nikolaisen, 2002 SCC 33 at para. 33; see also 3258042 Nova Scotia Limited v. Transport Canpar L.P., 2021 NSCA 84 at paras. 17-20).

[51]         The second ground, involving prescriptive rights, attracts the same standard of review. In Mason v. Partridge, 2005 NSCA 144, an appeal concerning prescriptive rights, this Court explained at para 15: an error of law is reviewed for correctness; factual matters, including inferences, and questions of mixed fact and law with no extractable error of law are reviewed for palpable and overriding error; and, an extractable error of law from a question of mixed fact and law is reviewed for correctness.

Analysis

[52]         To succeed on appeal, the Muirs must establish the judge erred on both grounds. If the judge committed reversible error under the first ground, absent reversible error on the second, the declaration of an easement in favour of the Days and the other relief ordered, still stands. That is because the Days are entitled to the same relief under the judge’s alternate finding.

[53]         For the reasons that follow, I am not persuaded the judge erred in finding an implied reciprocal and mutual easement. However, even if it could be said the judge fell into reversible error, as I explain in my analysis of the second ground, I would still dismiss the appeal because the Muirs failed to demonstrate the judge erred in his alternative finding of prescriptive rights.

[54]         I turn to the first ground.

Did the judge err in finding a reciprocal and mutual easement?

[55]         As noted, the task before the judge was to determine whether Mr. Miller expressly or, by operation of law, reserved the right for himself and his successors to use the established driveway to access his cottage. As noted, this issue required the judge to interpret the 1979 deed from Mr. Miller to his daughter Carol Muir, which involved questions of mixed fact and law and is subject to the palpable and overriding error standard of review. However, if a question of law can be extracted from the questions of mixed fact and law, that question is subject to the correctness standard.

[56]         The Muirs contend the judge’s declaration of an easement in favour of the Days is marred by legal error, which attracts a correctness review standard. Although the complaints raised by the Muirs are framed as legal error, in my view, they are essentially questions of mixed fact and law mischaracterized as extricable errors of law. Questions of mixed fact and law attract the more deferential standard of review, that of palpable and overriding error.

[57]         Before turning to the Muirs’ specific complaints of judicial error, it is helpful to review the principles of law the judge identified and how he applied them to the undisputed facts before him, and the factual determinations he made based on the evidence before him.

Principles of Law

[58]         The judge succinctly set out the position of the Muirs and identified the task before him involved questions of contractual interpretation. He explained:

[18]     The Muirs contend that the deed does not expressly reserve a right-of-way in favour of Cecil Miller over their lands and they insist that the law precludes a grantor from subsequently undermining title to the granted parcel of land by advancing a contractual interpretation which diminishes the interests the grantor agreed to convey. Rather, the grantor has a duty to ensure that the deed accurately communicates their intention. The Muirs rely heavily upon jurisprudence (e.g., 3021386 Nova Scotia Ltd v Barrington (Municipality), 2014 NSSC 1; aff’d 2015 NSCCA 30 (“3021386 Nova Scotia Ltd”)) which focusses upon the time-honoured rule that a grantor may not derogate from its grant.  Thus, the original issue involves questions of contractual interpretation and an examination of when a grantor may be entitled to derogate from its grant by, for example, implying an easement not otherwise expressly reflected in the governing deed.

                                                                                    [bolding added]

[59]         The judge proceeded to set out the legal principles that guided his determination. He did so at length in paras. 24 to 55 of his decision. First, he set out general principles of contractual interpretation followed by more specific principles relating to disputes around land grants.

General principles of contract interpretation

[60]         In summary, the judge observed these general principles:

•        The overriding concern is to determine the intent of the parties and the scope of their understanding.

•        A decision-maker must read the contract (here “deed”) as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract.

•        The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement.

•        In determining the scope of the factual matrix or the surrounding circumstances the court needs to keep in mind these limiting principles:

o   The surrounding circumstances or factual matrix at the time of contract formation cannot overwhelm the words of the contract. While the surrounding circumstances are relied upon in the interpretative process, courts cannot use them to deviate from the text such that the court effectively creates a new contract.

o   The relevant surrounding circumstances should consist only of objective evidence of the background facts at the time of the execution of the contract. That is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. And further, the court must interpret the intention of the parties objectively by the words they used in the deed, not by subjective wishes, motivations or recollections.

o   The Court should approach the parties’ subsequent conduct (i.e., their actions after contract formation) with caution.[4]

Specific principles relating to land disputes.

[61]         Turning to the more specific principles, the judge stated:

[25]        As indicated, these are contractual principles of general application. They are refined by other, more specific principles relating to disputes around land grants and, in particular, circumstances where, as here:

1.               A common owner (i.e., unity of possession) subdivides and conveys subdivided lots;

2.               There are competing allegations around the existence and/or scope of a shared easement - often a mutual driveway between the subdivided lots;

3.               The deeds in question may not fully or clearly address the nature or scope of an alleged, disputed easement.

 

[62]         The judge set out the more specific principles at paras. 26-55 of his decision. In summary, he identified:

•        Primary among the more specific principles is the rule that a grantor may not derogate from a grant.

•        Grantors have a duty to clearly express their intentions in the deed itself and may not derogate from (or deny) any such easements without clearly communicating that intention. 

•        The law recognizes a distinction between a grantor who, after conveying land, seeks to reserve an implied easement versus a grantee who seeks a grant of an implied easement to fully achieve the interests being conveyed. The legal and evidentiary challenges which face a grantor will be more formidable that those facing a grantee.

•        Patent ambiguities should normally be interpreted against the grantor. Correspondingly, and without limiting the court’s ability to determine the parties’ intention based on the deed as a whole, reservations or exceptions should be interpreted in favour of the person from whose title it detracts.

•         The non-derogation rule is important but it is not a fixed edict of paramount importance for which equity admits no exceptions. That is, the non-derogation rule does not serve as a bar, prohibiting grantors from claiming an equitable, implied easement under any circumstances. The rule in Wheeldon does not dictate a particular result and it may bend in appropriate circumstances to serve the aims of equity.

•         In short, the non-derogation rule will inform but does not entirely subsume the circumstances under which equity will recognize an implied easement in favour of a grantor. Subject to certain parameters, grantors may still claim an equitable implied easement in appropriate circumstances.[5]

[63]         The judge then went on to discuss easements of necessity, apparent accommodation (which he found did not apply) and then focused on reciprocal and mutual easements.

[64]         The judge referred to Barton v Raine, (1980), 114 D.L.R. (3d) 702 (ONCA), leave to appeal to the Supreme Court of Canada denied.  The judge said:

[52]        Writing for the Court, [in Barton] Thorson, J.A. confirmed that a reciprocal and mutual easement may arise in favour of a grantor in appropriate circumstances. At paragraph 21, he articulated the test as follows:

In my opinion, the learned trial judge was correct in the conclusion which he drew from the authorities referred to above, namely that the development of the case law since Wheeldon v. Burrows has softened the rigour of the general rule set out in that case or has enlarged the scope of the exceptions to the rule. On the facts of the case at [b]ar, I am satisfied that, although the 1952 conveyance made no mention of a right of way over the driveway between the two properties, there was, by necessary inference from the circumstances in which the conveyance was made, a common intention on the part of both the father on the one hand and the son and daughter-in-law on the other hand that, after the conveyance, each of them would continue to use the driveway in the same manner as, in fact, it had been used without interruption since the late 1920's.

                                                                                     [emphasis added]

[65]         After setting out the legal principles, the judge undertook his analysis beginning with an examination of the metes and bounds description contained in the 1979 deed from Miller to Muir. At this point, I return to the observation the judge made about an inconsistency in the metes and bounds description and the retracement survey.

[66]         To place the Muirs’ complaints on appeal in context, and why I do not find them persuasive, it is helpful to set out the judge’s reasons in some detail:

[57]         The analysis begins with the wording of the metes and bounds description in the 1979 Deed. I note the following:

1.                 The description of the boundary line separating the lot granted to Carol Muir from Cecil Miller’s remaining lands is important. According to the deed, that boundary begins at “a stake set and the sideline of a private roadway leading to the cottage of the Grantor from the Virginia Road”. There is no doubt that this “private roadway” is the Disputed Driveway. The boundary then moves “Northeasterly generally along the said private roadway and lands retained by the Grantor to a stake set at the shore of Sandy Bottom Lake”. In short, the wording of the deed suggests that Cecil Miller intended the Muir Property to the west at “the sideline of the [Disputed Driveway]” and he would, therefore, retain title to both the private roadway and the remainder lands;

2.                 The 1979 Deed goes on to grant Carol Muir “a right of way in company with the Grantor to the use of the said private roadway or drive providing access to the lands hereby conveyed to the Grantee and their servants and agents for all purposes necessary for the use of the property in common with the Grantor”. It was necessary for Cecil Miller to include this right of way into the grant because, in 1979, the lot being granted to Carol Muir had no road frontage along Virginia Road.  The Muirs would not obtain such road frontage until 1984 when they purchased the lot between their original cottage property and Virginia Road. 

[58]         From this perspective, the deed reveals Cecil Miller’s intention to retain access to the Disputed Driveway. The reason is perfectly clear: The Disputed Driveway was not simply the way Cecil Miller historically travelled to his cottage; it was the only driveway which led to his cottage. At the same time, he crafted the 1979 Deed to ensure that Carol Muir equally had the right to share (in common with Cecil Miller) the Disputed Driveway, to access her cottage lot.

[59]        Having said that, I turn back to the 1996 Survey prepared more than 5 years after Cecil Miller’s death. The boundary line which separates the Muir Property and the Day Property begins at the sideline of the Disputed Driveway, consistent with the wording of the 1979 Deed. However, the boundary in the 1996 Survey does not move “Northeasterly generally along the said private roadway and lands retained by the Grantor ... to a stake set at the shore of Sandy Bottom Lake”, as the metes and bounds description in the 1979 Deed states, emphasis added. Rather, the 1996 Survey cuts a straight line from a point about half-way down the Disputed Driveway to another point along the shores of Sandy Bottom Lake sufficient to ensure that the Carol Muir lot had 137 feet of lake front. In drawing a straight line in this manner (as opposed to going along the Disputed Driveway), the boundary line in the 1996 Survey:

1.                 Intersects the Disputed Driveway at a point about half-way to the shores of Sandy Bottom Lake such that about half of the Disputed Driveway is on the Muir Property and the other half on the Day Property;

2.                 Intersects the Disputed Driveway again just before the driveway terminates near the front of Cecil Miller’s original cottage. 

[60]         Having said that, the 1996 Survey does ensure that the Muir Property has about 137 feet of lake frontage. That figure (137 feet):

1.                 Is consistent with the amount of lake frontage noted in the 1979 Deed;

2.                 Ensures that each of Cecil Miller’s three children would receive roughly the same amount of lake frontage. According to the 1996 Survey, the Donald Miller Lot has 135 feet of lake frontage, the Day Property has 137 feet of lake frontage and the Muir Property has 137 feet of lake frontage. 

[61]         It is unclear why the 1996 Survey intersects the Disputed Driveway twice. The intention seems to have been to achieve 137 feet of lake frontage in a way which maximizes the land contained in the Muir Property – even though it is uncontested that the Disputed Driveway was clearly marked and in place at the time of the survey. Setting aside any issues regarding the priorities afforded natural boundaries or existing monuments on the ground when establishing boundary lines, I also make the obvious points that the 1996 Survey was prepared 17 years after Cecil Miller’s 1979 Deed to Carol Muir; and that Cecil Miller died 5 years before the 1996 Survey was created. As well, the parties were not locked in litigation at the time of the 1996 Survey. Finally, recall the Ontario Court of Appeal’s warnings in Shewchuk v Blackmont Capital Inc., supra around the use of subsequent conduct when interpreting contracts (see paragraph 24 above).

[62]         Having said all that, the sworn evidence filed by all parties in this proceeding (including the Days as Applicants) clearly accept the boundary lines as shown in the 1996 Survey. No party asked that the boundary line be redrawn, and I am certainly not prepared to do so. 

[67]         Having observed the apparent discrepancy with the survey but recognizing the parties accepted the survey, the judge addressed the Muirs’ argument that granting an easement to the Days, as successors in title to Cecil Miller, would overwhelm the language of the 1979 deed to Carol Muir. Again, that language is:

TOGETHER with a right of way in company with the Grantor to the use of the said private roadway or drive providing access to the lands hereby conveyed to the Grantee and their servants and agents for all purposes necessary for the use of the property in common with the Grantor.                                                                                                                                          [bolding added]

[68]         The judge rejected the Muirs’ argument that granting an easement to the Days would overwhelm the language in the deed. It is also helpful to reference the judge’s reasons for rejecting their claim in some detail:

[63]       …   the Respondents [Muirs] argue strenuously that granting an easement to the Applicant Days as successors in title to Cecil Miller should not be allowed as it would overwhelm the language of Cecil Miller’s 1979 Deed to Carol Muir, contrary to the Supreme Court of Canada’s clear direction in Sattva.

[64]         Respectfully, I disagree. I am emphatically of the opinion that the wording in the 1979 Deed strongly and necessarily confirms a common intention to reserve a right of way in favour of Cecil Miller and his successors in title.  Finding such a common intention would not overwhelm the 1979 Deed but, in my view, better reflect the intent of the parties.

[65]         In addition to the wording of the 1979 Deed, the following circumstances surrounding that deed obviously and necessarily support the inference of an implied intention that both the owners of the Day Property and the owners of the Muir Property would benefit from the Disputed Driveway:

1.         In Barton, the Ontario Court of Appeal referred to the following fact as supportive of an implied reciprocal and mutual easement: “Throughout the whole of this period the driveway was a tangible physical fact, there to be seen by all who chose to see it, and the manner of its use would have been obvious to even the most casual observer of the physical features of the two properties. There could be no doubt that it was there to provide access to and from both garages near the rear of the two properties” (at paragraph 23). If the word “garage” in this passage were replaced with “the parties’ cottages”, these sentences could well have been written for the case at hand. Indeed, an implied easement in this case may be even more compelling because, unlike a garage, the lake front (including Cecil Miller’s cottage at the time of the 1979 Deed) would be the primary destination for the Day Property and the Muir Property;

2.                 Carol Muir candidly attests that after deeding the lakefront lot to her in 1979, “my father [Cecil Miller] continued to use the portion of the driveway over the Muir Property to access his property” and that, although they did not discuss it, “he was my father and he could continue to use the property as he always had” … In fact, at all times from 1958 until his death in 1991, Cecil Miller used the entirety of the Disputed Driveway without permission.  In my view, it defies credulity that either:

a.                        There could be any misunderstanding in 1979 between Cecil Miller and Carol Muir that the historic right to use the Disputed Driveway would continue. As indicated, it was the only existing means to access Cecil Miller’s original cottage. Indeed, as indicated, Carol Muir’s affidavit suggests that no such misunderstanding existed. On the contrary, there was an understanding and common intention that the grantor (Cecil Miller) and the grantee (Carol Muir) maintained the right to use the Disputed Driveway to access their respective cottage properties; or

b.                       That either Cecil Miller or Carol Muir understood that Cecil Miller’s continued right to use the Disputed Driveway was somehow dependent upon Carol Muir’s (or her successor in title’s) permission – which could be withdrawn at any time, depriving Cecil Miller of historic access to his cottage.

[66]         In my view, the only reasonable and necessary inference to be drawn from all of the facts and circumstances surrounding the 1979 Deed is that each of the parties (Cecil Miller and his daughter, Carol Muir) had a common intention that Cecil Miller, as grantor, had the right to continued use of the Disputed Driveway.[6]

[67]          I declare that an implied reciprocal and mutual easement to the benefit of the owners of both the Muir Property and the Day Property arises out of the 1979 Deed from Cecil Miller as grantor to Carol Muir as grantee. This implied easement is located along the same route as Cecil Miller historically used to access his original cottage and is marked in the 1996 Survey as the 10’ Driveway.

[69]         Turning to the specific complaints of the Muirs, they say:

[25] While it is conceded that the concept of reciprocal and mutual easements exists in law in Nova Scotia, it is submitted that (sic) for the following reasons, the facts of the case do not support the inference of such an easement;

            a) There was no mutuality;

b) The granting of other rights in the Muir deed strongly suggest that no further rights should be implied; and

c) The facts are consistent with another plausible explanation, namely that Cecil Miller fully intended that the Days create their own driveway access wholly on their own land.

I will expand upon these arguments and address each in turn.

[70]          First, as to the absence of mutuality, the Muirs contend:

35. As set out clearly in the case law, reciprocal and mutual easements are identical easements implied in favour of both the grantee and the grantor where the deed has failed to do so, and the necessary implication is that such an easement was intended.

36. In this case, the right of way implied by the Court was in favour of the Days only, and thus clearly does not fit the criteria for a reciprocal and mutual easement. Such an easement may have been a consideration if the deed to Carol Muir did not reserve a right of way in favour of either Cecil Miller or Carol Muir, but those are not the facts.

[71]         As I understand the Muirs’ argument, the 1979 deed, unlike the situation in Barton, is not silent on the expression of rights to be conveyed—Carol Muir had a right of access so there was nothing “mutual” because the right-of-way implied by the judge only favoured the Days. The problem with that argument is the access rights to the driveway expressed in the 1979 deed were unclear and required interpretation to ascertain the parties’ intention.

[72]         Given these circumstances, the judge considered and declared, an implied reciprocal and mutual easement because he found, correctly in my view, that is what the parties intended at the time of the 1979 conveyance but did not clearly express so in the deed. The appellants’ argument regarding a lack of mutuality is not persuasive in demonstrating error.

[73]         Next, the Muirs assert the granting of other rights in the 1979 deed strongly suggest no further rights should be implied. Relying on Gale on Easements, 20th Ed. (Sweet & Maxwell/Thomson Reuters, 2017) – sections 3-136 and 3-137 they submit:

37. Principle #6 in Gale states:

(6) The express reservation of other rights shows that the parties turned their minds to what rights ought to be reserved and therefore militates against the implication of further rights.

38. The Muir deed addresses a right of way to the Muir property and also addresses the cost sharing of the maintenance of that right of way. As stated in Gale, and was also the finding in Germain v Brar, this shows that Cecil Miller turned his mind to the issue of rights of way, and therefore militates against the implication of a reservation of a right of way in favour of the Day Lot.

[74]         Similarly, this argument is not persuasive. Yes, the parties did turn their minds to the reservation of rights but it cannot be said the words expressed demonstrate an intention Mr. Miller would retain no access rights. The language of the 1979 deed bears repeating:

TOGETHER with a right of way in company with the Grantor to the use of the said private roadway or drive providing access to the lands hereby conveyed to the Grantee and their servants and agents for all purposes necessary for the use of the property in common with the Grantor.                                                                                                                                          [bolding added]

[75]         The Muirs’ final contention (the judge erred in implying an easement because the facts are consistent with another plausible explanation, namely Mr. Miller intended the Days create their own driveway access wholly on their own land) is not convincing.

[76]         The Muirs cite Gale:

39. Principle #5 in Gale States:

(5) Before the inference of an intention common to both parties that the right in question should be reserved can be drawn, the party claiming the reservation must show that the facts are not reasonably consistent with any other explanation; it is not enough that they are simply consistent with such an explanation.

[77]         The Muirs acknowledge the judge captured this principle in his reasons when finding:

[66]         In my view, the only reasonable and necessary inference to be drawn from all of the facts and circumstances surrounding the 1979 Deed is that each of the parties (Cecil Miller and his daughter, Carol Muir) had a common intention that Cecil Miller, as grantor, had the right to continued use of the Disputed Driveway.

[78]         However, when interpreting the provisions of the 1979 deed, the Muirs say the judge considered contextual factors he should not have and failed to consider other relevant factors— errors in law they say warrant our intervention.

[79]         The Muirs concede it was proper for the judge to consider the language of the 1979 deed, the undisputed fact the driveway had been in existence at the time of the deed, and that Mr. Miller had used the driveway to access his cottage since 1958. However, the Muirs say the judge was wrong to have also considered Mr. Miller’s continued use of the driveway after 1979 and that Mr. Miller did so without any discussion with Carol Muir because these factors involve post-deed evidence.

[80]         The two factors the Muirs say the judge failed to consider are:

•        The ease and expense of creating a new driveway on the Day lot ought to have been considered. If a new driveway could have easily been created, this provides “any other explanation” of why a right of way was not included in the deed and why an implied right of way is not the “only reasonable and necessary inference to be drawn.”

•        The parity or even-handedness of the gifts. Although Mr. Miller gifted each of his children a lot with almost the same waterfrontage, if an easement were intended, Carol Muir would receive less useable waterfront area than her siblings.

[81]         Where a judge considers irrelevant factors and/or fails to consider relevant factors in a legal test, they commit an error of law (see Housen v. Nikolaisen, 2002 SCC 33 at para. 27; see also 3258042 Nova Scotia Limited v. Transport Canpar L.P., 2021 NSCA 84 at para. 17 and R. v. DeWolfe, 2007 NSCA 79 at para. 15). However, on this record it cannot be said the judge failed to consider the above factors. A reading of his decision alone establishes this, which is further made clear from the balance of the record.

[82]         Further, the judge was aware of the need to be cautious with subsequent post-deed conduct. He referred to this principle at paras. 24 and 61 of his decision. However, in this case, the post-deed conduct complained of was uncontroversial. All parties acknowledged Mr. Miller continued to use the driveway after the 1979 deed until his death in 1991. Carol Muir agreed he did so without any discussion between them.

[83]         These factors were unequivocally not in dispute. I am not persuaded the judge erred in referencing them. Even if it was an error to do so, the remaining factors and circumstances, together with the wording of the right-of-way language contained in the 1979 deed, were more than adequate to sustain the judge’s conclusion that:

[66]      … the only reasonable and necessary inference to be drawn from all of the facts and circumstances surrounding the 1979 Deed is that each of the parties (Cecil Miller and his daughter, Carol Muir) had a common intention that Cecil Miller, as grantor, had the right to continued use of the Disputed Driveway.

[84]         For the forgoing reasons, I would not give effect to this ground of appeal.

[85]         Although I would dismiss this ground of appeal, I am of the view the judge did not need to resort to finding an implied reciprocal and mutual easement. Rather, this case appears to lend itself more aptly to an interpretation of the language of the deed, considering the factual matrix and surrounding circumstances of its execution (see Duncanson v. Webster, 2015 NSCA 29, Purdy v. Bishop, 2017 NSCA 84 and Penney v. Langille, 2018 NSCA 43). In the case at hand, the factual matrix and surrounding circumstances provide clear and sufficient evidence that the parties to the original grant (Miller and Muir) intended each would have the right to use the driveway. The judge could have relied on that evidence to find the reservation in the 1979 Miller to Muir deed itself created the easement rather than implying a mutual and reciprocal easement.

Did the judge err in his alternative finding of prescriptive rights?

[86]         Given my finding on the first issue, it is not required I address the judge’s alternative finding; however, I will explain why I reject the Muirs’ complaints of error.

[87]         There was no dispute over the applicable legal test. It is well known and referred to by the parties. The judge summarized it:

[21]         The basic test for an easement by prescription is well-established: Judith Day and John Day must prove, on the balance of probabilities, continuous, adverse, open, and peaceful use over a period of 20 years. The analysis is less a debate over the law as it is a dispute over the facts in this case.

[88]         The judge set out the Muirs’ position:

[22]         The Muirs say that no prescriptive rights could ever arise because any continued use of the Disputed Driveway by Cecil Miller or his successors in title (i.e., the Days) from 1979 forward was not adverse but, rather, occurred with the Muirs’ implied permission and merely reflected their familial, neighbourly acquiescence. 

[89]         The judge provided detailed reasons[7] to support his conclusion. They include:

[74]         I also find that the Days started using the Day Property after Cecil Miller’s death on January 6, 1991 when the Applicant Judith Day received the Day Property in Cecil Miller’s will. Like Cecil Miller before, they continuously, openly, and notoriously used the Disputed Driveway to access their cottage property, without discussing the matter with the Muirs or seeking their permission. There is evidence, which I accept, that the Days would park on the Muir Property from time to time beginning in 1991. I return to the parking issue below. For present purposes, I simply note that the Days equally continued to use the Disputed Driveway to access their cottage.

 [75]         …The Muirs also acknowledge that they did not speak with either Cecil Miller or the Days regarding their usage of the Disputed Driveway to access the Day Property.  There was an ongoing dispute regarding parking, which I return to below. However, nothing was said regarding the right to use the Disputed Driveway for accessing the Day Property.

…

[78]         In so far as the Muirs rely upon the 1979 Deed and the non-derogation principle as a defence to prescriptive rights, I repeat my findings regarding the language of the 1979 Deed in paragraphs 57 – 64 above. I further find that any usage by Cecil Miller during his lifetime would not be a function of unspoken or implied permission but, rather, a right that Cecil Miller presumed he had and corresponding acquiescence or passive tolerance on the part of the Muirs.

…

[87]         In sum, between 1979 forward, there is ample evidence to demonstrate that the owners of the Day Property (Cecil Miller and then the Days) exercised continuous, open, and notorious use of the Disputed Driveway for well over the 20 years necessary to establish prescriptive rights. A prescriptive right in favour of the owners of the Day Property (as the dominant tenement) arises over that part of the Disputed Driveway located on the Muir Property solely for the purposes of travelling to and from the Day Property, and not parking on the Muir Property.

                                                                                                [bolding added]

[90]         The Muirs base their challenge to the judge’s alternate finding on the following:

•        The Days did not drive through to their property in the same manner as Mr. Miller.

•        The judge failed to treat the Muirs’ objection to where the Days parked as a break in continuity.

•        The judge failed to find that implied permission applies from 1979 to 1991, when Cecil Miller was alive, and for a few years thereafter.

•        The judge erred in relying on the subjective mindset of Cecil Miller and the Days.

[91]         These complaints can be summarily dismissed because they lack merit.

[92]         First, the fact that the Days did not use the driveway exactly like Mr. Miller is of no consequence. The Muirs’ evidence was to the effect that Mr. Miller used the driveway to drive onto and park, on his lot. The Days, on occasion, might have done so, but after expanding their cottage (which brought it closer to the Muir boundary line and driveway) the Days would travel along the driveway and park in an area on the Muir lot. They would then walk the remaining short distance to their cottage. The mode of travel over the final part of the driveway to their lot—whether on foot or by vehicle, matters not.

[93]         Second, as the judge properly found, the focus of the quarrel between the parties was clearly over parking, never the right to use the driveway. There is no break in the Days’ continuity of use over the driveway. The judge was not wrong to treat parking and use of the driveway, as distinct. There was a solid evidentiary basis for him to do so.

[94]         As to the remaining two complaints (failure to find implied permission and improper reliance on the subjective mindset), I see nothing in the judge’s decision or the record, that supports these complaints.

[95]         The judge’s reference to there being “ample evidence” to demonstrate the Days “exercised continuous, open, and notorious use” of the driveway “for well over the 20 years necessary to establish prescriptive rights” is an accurate description of the record before him. The affidavit and viva voce evidence before Justice Keith is replete with clear examples of the Days’ continuous, open, and notorious use of the driveway.

[96]         I see no basis to disturb the judge’s alternate finding of prescriptive rights and would dismiss this ground of appeal.

Costs on appeal

[97]         In the court below, the Days were awarded costs of $8,223.52. The parties agree the successful party on appeal should receive 40% of the costs below. In my view, that is reasonable and I would round the figure to $3,300.

Conclusion

[98]         For the reasons provided, I would dismiss the appeal and order costs payable by the appellants to the respondents, in the amount of $3,300, inclusive of disbursements.

 

Van den Eynden, J.A.,

Concurred in:

 

Bryson, J.A.

 

 

Bourgeois, J.A.