Citation: Nickerson v. Hatfield, 2013 NSSC 133
Date: 20130426
Docket: Yar. No. 379941
Registry: Yarmouth
Between:
Debra Darlene Nickerson
Applicant
v.
Shaun Peter Hatfield and Carla Belle Hatfield
Respondents
Judge: The Honourable Justice Kevin Coady
Heard: October 24, 2012 and February 20, 2013, in Barrington, Nova Scotia
Written Decision: April 26, 2013
Counsel: Gregory Barro, for the Applicant
Allen Fownes, for the Respondents
By the Court:
[1] The Nickersons and the Hatfields are neighbours in the small and beautiful oceanfront community of Villagedale, Shelburne County. Unfortunately they are embroiled in a right-of-way dispute that has disrupted this otherwise serene locale. The Hatfields argue in support of the existence of the easement while the Nickersons deny its existence. This Application in Court was initiated by the Nickersons in response to the Hatfield’s attempts to utilize the right-of-way.
[2] The Nickerson’s property is located to the north of the Hatfield’s property and near the top of a slope that rises up from the shore. The Hatfield property, as well as three other cottages, are situated at the bottom of the slope closer to the shore. The area between the two residences is primarily wooded. Historically the sloped area was occupied by cottagers wanting to take advantage of the beautiful beaches. The early occupants accessed the beach by various pathways through the then less wooded areas of the slope.
[3] The general area is accessed by a well established roadway coming in from the nearest public highway and arriving at the top of the sloped area. It turns into a well established right-of-way/gravel road called Park Drive. It crosses the slope diagonally and in a downhill direction. It passes to the right of the Nickerson house and continues its diagonal direction down the slope. It comes to an end at the bottom of the slope at roughly the same level as the Hatfield home and the three other cottages.
[4] Park Drive then makes a turn to the left creating a relatively tight change of direction. At that point it becomes Edgehill Avenue. It crosses the bottom of the slope passing the Hatfield’s house as well as the other cottages. Edgehill Avenue comes to an end at the last cottage. Surveys of the area depict the Park Drive/Edgehill Avenue right-of-way as a sideways V. I am attaching the 1990 Thorne survey as Schedule “A” to this decision. It will assist the reader in following the above descriptions of the area.
[5] The Park Drive and Edgehill Avenue right-of-way has been a means of ingress and egress since the cottage lots were created in the late 1960s. It has been maintained over the years by the residents. The Hatfields assert that Park Drive is too steep and narrow, that the turn is too sharp and that Edgehill Avenue passes too close to the cottages on the way to their residence.
[6] This dispute is over an area referred to as the “Looped Road”. It is a passage that cuts through the wooded area between Park Drive and Edgehill Avenue. It is comprised of a left turn off Park Drive after it passes the Nickerson residence and curves down the slope meeting Edgehill Avenue in front of the Hatfield residence. In part it crosses over the Nickerson’s property. It is depicted in the attached survey by broken lines.
[7] The evidence is very divided on the historical use of this looped road. Some affiants suggest that it was never anything more than a footpath to the beach. Other affiants suggest that it was used for vehicular traffic and parking. I will refer to this evidence later in my decision. First I would like to discuss the events that led to this litigation.
[8] The Nickersons acquired their property in 1992. It was initially two lots but they were later consolidated. The lot containing the looped road had been owned by the Crown between 1970 and 1990. The evidence satisfies me that prior to 1992 the Hatfields used the looped road for vehicular access to their residence. The Nickersons assert that they never recognized that the looped road was a right-of-way for the benefit of the Hatfields.
[9] The Nickerson’s evidence is that in the first half of the 1990's the looped road was in poor shape. They state it was primarily used by people who would recklessly drive vehicles over it causing a dangerous situation. In 1997 Mr. Nickerson dumped a load of gravel at the end of the looped road where it met Edgehill Avenue. Later he planted trees which have now matured. These acts ensured that no one could make use of the looped road. It remained that way until the summer of 2011.
[10] I am satisfied that in the summer of 2011 the Hatfields began to assert their entitlement to use the looped road as a right-of-way. This information made its way to the Nickersons and they instructed their lawyer to write to the Hatfields advising them against trespass. In February, 2012 the Hatfields used an excavator to knock down the trees and to open up the looped road. On February 14, 2012 this proceeding was commenced by the Nickersons.
[11] The Nickersons are seeking a permanent injunction restraining the Hatfields from entering on their property. They also seek damages for trespass and to return the looped road to its prior state. They also seek general damages for upset and inconvenience.
[12] The Hatfields filed a Notice of Contest disputing that the Nickersons had the right to blockade “their long-used and enjoyed right of way” and resisting all relief sought. They also counterclaimed for damages for trespass to their right-of-way and in nuisance.
The Evidence:
[13] The parties filed affidavits from eighteen individuals. Some affiants were cross-examined while others were not. The Nickersons retained Paul Lumsden as an expert in interpreting aerial photography. On October 24, 2012 I conducted a view of the area in the presence of the parties and their counsel.
[14] The Hatfields assert that the looped road is a right-of-way that benefits their property. Consequently I will first review the evidence they advance in support of their position.
[15] The principle witness for the Respondents was Shaun Hatfield. He testified that his family have owned a cottage in the area since the late 1960s. He testified that his grandmother and other family members have always used the looped road to access their cottage as Edgehill Avenue was nothing more than a footpath to an adjacent beach. He testified that such access ended in 1997 when the Nickersons blocked the looped road. He testified that since 1997 they have had to access their property via Park Drive and Edgehill Avenue. He testified that between 1997 and 2011 there were occasional arguments over whether the looped road was a legal right-of-way. Mr. Hatfield provided the 1990 Thorne survey which clearly indicates the presence of the looped road.
[16] Mr. Hatfield’s position is that his family used the looped road for thirty years (1967-1997). He further testified that his family parked their vehicles at the bottom of the looped road for twenty-one years (1965-1990).
[17] Eric Ronald Hatfield’s affidavit indicates that he visited the area from 1965 to 1996 when the Hatfield matriarch died. He testified that throughout this time the looped road was used to access the Hatfield property and for parking. He testified that his family maintained the looped road and he was not aware of anyone challenging its use. He further testified that Edgehill Avenue was rarely used for vehicles.
[18] Wayne Robinson testified he visited the area every summer since the early 1970's. He is the predecessor in title to Mr. Hatfield. He confirmed that the looped road was used for access to the Hatfield property until 1997. He also confirmed that the family parked their vehicles at the bottom of the looped road.
[19] Lorna McClusky has an interest in a family cottage on Edgehill Avenue. She confirms the use of the looped road until 1997. She acknowledged that the upper part of the looped road crosses her family property. David Wilson bought a cottage in the area in 1986. He confirms the existence of the looped road leading directly to the Hatfield property as shown on the 1990 survey.
[20] Bruce Atkinson is 80 years old and inherited his cottage in 1980. He testified that the Hatfields used the looped road between 1965 and 1996. He suggested that the looped road was part of a network of roads laid out by the original developer of the community.
[21] Jane Symonds is 71 years old. She was born a Hatfield and was a predecessor in title to the present Hatfield property. She testified that between 1965 and 1993 the looped road was the only access to their home. She also testified that they parked their vehicles at the bottom of the looped road.
[22] Peter McCue spent many summers in the area starting in 1974. He testified that his family used the looped road to access their cottage for 28 years.
[23] G. David Eldridge Q.C. acted for the Hatfields in 2011 with respect to the migration of their property. He filed an affidavit and the following evidence appears at paragraphs 3 and 4:
3. THAT as stated in paragraph 4 of the Applicant’s Notice of Application in Court, the Respondents’ parcel description contains two easements as follows:
a) Together with a Right of Way access as provided for in the Rules and Regulations of Stanford Park on file at the Registry of Deeds, Barrington, as Plan 152A filed June 12, 1952 as referred to in the Warranty Deed Book Y page 115 Document No. 1250;
b) Together with a prescriptive Right of Way as described in Statutory Declaration dated August 12, 2008 and duly recorded at the Registry of Deeds, Shelburne on September 3, 2008 as Document No. 91533605 and Statutory Declaration dated September 2, 2008 and duly recorded at the Registry of Deeds, Shelburne on September 3, 2008 as Document No. 91533662.
4. THAT with respect to the Applicant’s allegation as set forth in paragraph 5 “that the Respondents failed to comply with the Land Registration Act in not notifying the Applicant that they were claiming an Easement over the Applicant’s property”, it was already acknowledged in the Applicant’s Property Register as a Burden. It states that it was subject to Restrictive Covenants, Book 3 page 81 recorded August 24, 1973 which are the Rules and Regulations of Stanford Park and the basis of access to the Respondents’ lands over the Applicant’s lands. The location and number of these roads is a matter of fact to be established by survey and the Court.
[24] The expert Paul Lumsden provided aerial photographs of the disputed area for 1965, 1967, 1978, 1984, 1989, 2000 and 2006. He found that the 1965 photo shows the looped road “fairly well”. He concluded “there is evidence of usage on a regular basis”. In relation to the 1967 photo he concluded “the disputed row is quite evident with sharp resolution and the edges are well defined”. In relation to the 1978 photo he concluded “the disputed row appears to be well used and travelled”. He also concluded “there is an obvious parking area immediately west of the looped road with several vehicles evident”. He testified that the 1984 photo shows no changes from 1978. He concluded the 1989 photo depicts the looped road as “very well used and travelled”. Mr. Lumsden testified that in the 2000 photo the disputed row was “obviously diminished considerably”. He concluded the 2000 photo indicates that the “disputed row appears unused and in poor condition”.
[25] Mr. Lumsden certified that he held these opinions with a high degree of certainty. He further opined that the looped road has experienced ongoing use since the mid 1960's up until sometime prior to the year 2000.
[26] The principle witness for the applicant was Debra Nickerson. She challenges the credibility of the Hatfield’s witnesses. She asserts that the looped road was washed out and impassible since the early 1950's and that trees grew up over that time. Mr. Nickerson testified but added nothing to Debra Nickerson’s evidence.
[27] Brian Lamrock filed an affidavit in support of the Nickersons. He testified he lived in the area since 1960. His evidence was that the looped road going over the Nickerson’s property was a foot path for people to cut through the woods to get to the beach. He testified that in the 1960's/1970's the path was expanded into a road to the Hatfields and other cottages. He testified that the looped road was not the primary method for which people and vehicles would access the Hatfield and other cottages.
[28] Kenneth Crawford owned a cottage in the area in the 1970s. He testified that the only access to the Hatfield cottage was via Park Drive and Edgehill Avenue. He testified the looped road was nothing more than a path to the beach and was not suitable for vehicular travel.
[29] Kelley Parish regularly visited the area between 1962-1972. She recalled that the looped road was a sandy foot path to the beach and that access to the Hatfield cottage was by way of Park Drive and Edgehill Avenue. Ms. Parish is a friend of the Nickersons.
[30] The evidence overwhelmingly satisfies me that the Hatfields have used the looped road for ingress and egress to their cottage from 1965 until it was blocked in 1997; a period of 32 years. I am also satisfied that during this time they travelled this looped road by vehicle and parked their vehicles at the bottom near Edgehill Avenue. These conclusions are amply supported by the survey plans, the aerial photos and the credibility of the Hatfield’s witnesses.
[31] If this was the end of the case I would have no difficulty applying the principles set forth in Lynch v. Nova Scotia (Attorney General), [1985] N.S.J. No. 456 and finding that the Hatfields have acquired a right-of-way over the looped road by adverse possession. It would not be a close call.
The Creation of the Lots:
[32] The history of the creation of the lots as they exist today is helpful to the determination of whether the looped road is a legal right-of-way. In the 1940's one Fred W. Nickerson acquired a significant portion of land at Villagedale, Shelburne County. He named the area Stanford Park which he described as “Western Nova Scotia’s playground”. It was his intention to sell cottage lots. In 1946 he created “rules and regulations of the management of Stanford Park”. Clause 5 of that document stipulated as follows:
All cottage lots shall have a right of way, approved by the management, which can be used by any persons, residing at the development, working for the management, or holding a permit to trespass, or a seasonal pass.
[33] In 1957 Fred W. Nickerson conveyed a portion of the original lands to one Walter F. Nickerson. The present Nickerson and Hatfield properties are part of that 1957 conveyance. The Hatfield land and the Nickerson land remained in common ownership until Walter F. Nickerson conveyed what is now known as the Hatfield land by deed in 1965. Subsequently Walter F. Nickerson conveyed lands to the north of the Hatfield property on what is now known as Edgehill Avenue (McCue and McClusky lots). In 1970 the remaining parcel of land was conveyed to the Crown.
[34] In 1990 the Crown conveyed a portion of the land they acquired in 1970 to the Nickerson’s predecessor in title. It is on this land that part of the looped road is located. In 1992 that lot was sold to the Nickersons who later consolidated it with the lot on which their present home is situated.
Issues Respecting Right-of-Way:
[35] In order to determine whether the looped road is a legal right-of-way for the benefit of the Hatfields, the following issues must be determined:
1. Was a right of way created by express grant or implied grant?
2. If there is not a grant of right of way, has one arisen by prescription?
3. If a right of way exists, either by grant or by way of prescription, has that right of way been extinguished?
The Nickersons submit that the Hatfields trespassed on their land by bringing in an excavator and knocking down their trees. They further submit that the burden is on the Hatfields to prove they have a legal right that would legitimize their actions.
Express or Implied Grant:
[36] The Nickerson and Hatfield properties were in common ownership until the first deed to the Hatfields in 1965. That deed does not specifically grant a right-of-way to the grantee. The only reference to a possible easement is contained in the following words:
This block of land is bounded to have 200 feet length facing Barrington Bay and a depth of 100 feet toward Edgehill Avenue so called. Also shall be subject to the rules and regulations of Stanford Park...
The only reference to right-of-way in those regulations is as stated in paragraph 32 herein.
[37] The Nickersons argue that the right-of-way provided in the regulations is limited to the Park Drive and Edgehill Avenue easements. The Hatfields argue the language in the regulations is sufficient to include the looped road. I have concluded that a review of all the relevant deeds satisfies me that the regulations of Stanford Park represent the only possible foundation for the argument the looped road is an expressed right-of-way in favour of the Hatfields.
[38] In the case of Shea v. Bowser, 2011 N.S.S.C. 450 Rosinski J. reviewed the principles of easement by citing The Law of Real Property by Anger and Honsberger. He states at paragraph 13:
The nature and extent of the right-of-way created by an express grant depends on the proper construction of the language of the instrument creating it [citing Knock v. Fouillard 2007 NSCA 27 (2007) 252 NSR (2d) 298 (CA)]. The following rules apply in interpreting the instrument:
1. The grant must be construed in the light of the situation of the property and surrounding circumstances, in order to ascertain and give effect to the intention of the parties.
2. If the language of the grant is clear and free from doubt, such language is not the subject of interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant.
3. The past behaviour of the parties in connection with the use of the right-of-way may be regarded as a practical construction of the use of the way.
4. In case of doubt, construction should be in favour of the grantee.
While Shea v. Bowser was overturned (2013 NSCA 18) these principles were not disturbed.
[39] I am unable to conclude that the Stanford Park regulations established the looped road as an expressed right-of-way. I find as a fact that the words in the regulations allow access to all cottages on Edgehill Avenue to be by way of Park Drive and Edgehill Avenue. It is common ground that both are right-of-ways. The deeds to the Edgehill Avenue lots state that it represents their eastern boundaries. The 1970 Melman plan indicate that the right-of-way was Park Drive and Edgehill Avenue. Applying the Shea v. Bowser, supra. points, I cannot conclude that the looped road is caught by the Stanford Park Regulations.
[40] The Hatfield witnesses suggest that prior to 1997 Edgehill Avenue was used primarily as a foot path to an adjoining beach. Paul Lumsden interpreted the aerial photos as showing that prior to 1967 it did not appear to be well travelled. Mr. Lumsden concluded that after 1967 its use increased. He stated that in 1978 it appeared to have some limited use and intersected the disputed right-of-way.
[41] I do not find the language in the regulations sufficiently specific. Paragraph 5 starts with the words “all cottage lots shall have a right-of-way, approved by the management.” These are prospective words and I have no evidence of the management approving the looped road as a right-of-way.
[42] An implied right-of-way is described in Anger and Honsberger’s Real Property as follows:
A right of way may be created by implication of law where the dominant and servient tenements have been commonly owned and the owner sells and conveys one for an absolute estate therein. There is an implied grant of all easements necessary for the reasonable enjoyment of the tenement conveyed and an implied reservation of an easement of necessity without which there could be no enjoyment of the tenement retained.
A way of necessity may be acquired by an implied grant in favour of the grantee of lands over the lands of the grantor when land-locked lands are granted which are physically inaccessible unless the grantee is permitted to use the surrounding land of the grantor as an approach, and similarly a way of necessity may by implication be reserved to the grantor over the lands of the grantee when land-locked lands are retained. A way of necessity will only be implied where it is actually necessary for the use of the land retained or granted and not where it is for the more convenient enjoyment of the land granted or retained. A way of necessity will be implied where the land-locked parcel is acquired by a devise. The right to a way of necessity will cease when the right is no longer required in order to render the grant or reservation effectual.
Given my finding that Edgehill Avenue is a longstanding right-of-way for it’s cottagers, there is no foundation for an easement created by implication or necessity. The Hatfields use of Park Drive and Edgehill Avenue since 1997 underscores this conclusion.
Easement by Prescription:
[43] Essentially I have found that the Hatfields have established a “prima facie” right-of-way by prescription over the looped road. The principle of prescriptive ownership provides that a persons title to a piece of land may be extinguished by virtue of the possession or use of that land by one other than the titled owner. The Limitations of Actions Act sets a twenty year period in which the title owner may bring an action to recover that land. Following the expiration of the twenty year period the title owners title to the land is extinguished. In this case it would mean that the looped road would become a right-of-way to the benefit of the Hatfields.
[44] The Nickersons argue that this legislation does not assist the Hatfields because the twenty year period of use claimed must immediately precede the commencement of the action. It is not in dispute that the Hatfields have not used the looped road since 1997. Sections 32 and 34 of the Act states as follows:
32 No claim which may be lawfully made at the common law by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, over or from any land or water of our Lady the Queen, her heirs or successors, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years but, nevertheless, such claim may be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated and where such way or other matter as herein last before mentioned has been so enjoyed as aforesaid for the full period of twenty-five years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly given, or made for that purpose by deed or writing.
...
34 Each of the respective periods of years, mentioned in Sections 32 and 33, shall be deemed and taken to be the period next before some action or proceeding wherein the claim or matter to which such period relates, was, or is, brought into question and no act or other matter shall be deemed an interruption within the meaning of the said two sections, unless the same has been submitted to or acquiesced in for one year after the party interrupted has had notice thereof, and of the person making or authorizing the same to be made.
[45] The Ontario Court of Appeal in Henderson v. Volk, 1982 CarswellOnt 1343 stated at paragraph 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.
[46] The provisions interpreted by Justice Cory are substantially similar to sections 32 and 34 of the Nova Scotia legislation. Tidman J. in Gilfoy v. Westhaver 1989 CarswellNS 153 considered these sections and concluded that the period of possession must immediately precede the action. He stated at paragraph 30:
The major difference in prescription based upon lost modern grant as opposed to the Limitation of Actions Act is that the time of usage in order to establish the former must be counted from the outset of use, while in order to establish prescription under the Limitation of Actions Act the time usage is counted backwards from the time action is commenced under the Act and it provides for persons who do not oppose the right because of disability.
I am satisfied that the Act requires that the twenty years must immediately precede the bringing of the action.
Lost Modern Grant:
[47] Charles MacIntosh in his text Nova Scotia Real Property Practice Manual discusses this principle at page 7-21 under the heading “Easement by Prescription”:
...The [doctrine of lost modern grants] 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.
The Nova Scotia Court of Appeal endorsed this principle in Mason v. Partridge, 2005 NSCA 144. The Hatfields are relying on this principle to avoid the deficiency inherent in the Statute of Limitations approach. This principle was discussed in Henderson v. Volk, supra, at paragraph 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.
[48] The earliest time that an easement could have come into existence was 1965. Prior to that time the Nickerson and Hatfield lands were part of the same parcel owned by Walter F. Nickerson. The latest that an easement could have existed is 1997 when the Nickersons blocked the looped road. This represents a period of 32 years. The 20 year requirement would have to fall in this period of time.
[49] The evidence satisfies me that the part of the Nickerson lot over which the looped road crosses was owned by the Crown from 1970 to 1990. The Nickersons are relying on this fact to defeat the Hatfield’s claim of lost modern grant. The Limitations of Actions Act provides that prescriptive rights against the Crown require a period of 40 years adverse possession. Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69. Consequently the required forty years did not amass.
[50] Gregory Barro, counsel for the Nickersons, filed a “request for admission” in this case. It was served on Allen Fownes, counsel for the Hatfields on July 20th, 2012. The Hatfields have not challenged the title information contained in this document. Civil Procedure Rule 20.05 states:
A party who does not expressly admit or deny a requested admission by delivering a response no more than fifteen days after the day the request is delivered is taken to have made the admission.
[51] The following paragraphs are contained in the “request for admission”:
6. The same lands referred to in the preceding paragraph were then conveyed by Frederick W. Nickerson and Beulah M. Nickerson, his wife, to Her Majesty the Queen by way of a deed dated August 11, 1970 and recorded August 11, 1970 at the Registry of Deeds Office for Shelburne County in Book AA Page 239 as Document 3870 (attached hereto as Schedule “F”).
...
11. The lands, which contain the right of way as alleged by the Respondents, is on a parcel of land conveyed from Her Majesty the Queen to David Wilson and E. Lois Wilson by way of a Quit Claim Deed dated June 5th, 1990 and recorded on June 25th, 1990 as document 1228 in Book 60 Page 341 (attached hereto as Schedule “K”). The lands where the right of way alleged by the Respondents is located were conveyed from David and Lois Wilson to Gregory Nickerson and Debra Darlene Nickerson by way of a deed dated April 23, 1993.
These admissions firmly establish that the looped road land was Crown property between 1970 and 1990.
[52] The 5 years between 1965 and 1970 are not sufficient to establish a prescriptive right. The conveyance from the Crown to the Wilsons in 1990 does not assist the Hatfields in establishing the required 20 years. In Moran v. Pappas, 1997 Canlii 12161 (ONSC) the issue before the Court was stated as follows:
Can an individual who had adverse possession against the Crown for a period of years tack on that period of time to his adverse possession against a successor in title to the Crown?
The Court answered that question as follows:
[20] If a claimant of adverse possession against the Crown is unable to satisfy the time requirements of s. 3 of the Limitations Act at the time the Crown transfers the land to an individual, the accumulated time of adverse possession is extinguished because the claimant’s rights are personal to his claim against the Crown. The period in which the Crown lands are adversely possessed will not enure against the individual taking title from the Crown.
I am satisfied that the Hatfields use of the looped road between 1970 and 1990 does not apply to the twenty years needed for their claim of a prescriptive easement. This reality means that the Hatfields have failed to establish the twenty years required for a claim based on lost modern grant. Of course it is equally as fatal to their statutory claim.
The 1990 Deed and Supporting Documentation:
[53] The Hatfields have advanced a secondary argument based on alleged reservations in the 1990 deed from the Crown to the Wilsons. They point out the following paragraphs:
SAVING AND EXCEPTING THEREFROM any existing rights of way, whether acquired by grant, reservation, prescription or otherwise, associated with the roadways crossing the Subject Lands and shown on the plan attached hereto as Schedule “B”.
ALSO SAVING AND EXCEPTING any other existing easements, rights or privileges, whether acquired by grant, reservation, prescription or otherwise, with regard to the Subject Lands.
I note that the Schedule “A” legal description does not include any rights-of-way. Further it references an attached plan as Schedule “B” as follows:
...the Grantor hereby hath remised, released and forever quit claim unto the said Grantees, their heirs, executors, administrators and assigns, all that certain lot, piece or parcel of land more particularly described in Schedule “A” and shown as Parcel B on a Department of Lands and Forests Plan of Survey (Field Plot P-018/90) marked Schedule “B”, both Schedules attached hereto and forming part of this Indenture, referred to herein as the Subject Lands;
Schedule “B” is essentially the 1990 Thorne plan with modifications. The only rights-of-way shown are Park Drive and Edgehill Avenue. The looped road is shown with broken lines.
[54] The Hatfields have also provided the 1989 Order in Council which authorized the 1990 deed. That document states:
To convey the said lot of land containing 55,500 square feet, more or less; subject to right of way to adjacent cottage lot owners, to David Wilson and Lois E. Wilson.
Also relevant to this argument is the following clause:
(a) approve the alteration of the boundary of lands situate at or near Villagedale, in the County of Shelburne, constituted as Sand Hills Beach Provincial Park by Order in Council 76-558 dated the 11th day of May, A.D., 1976, and amended by Order in Council 88-406 dated the 20th day of April, A.D., 1988, by terminating the status of 27,000 square feet, more or less, of Sand Hills Beach Provincial Park shown shaded in yellow on the plan marked Schedule “A” attached to and forming part of the report and recommendation;
This is evidence that the land on which the looped road is situated was a provincial park for at least some of the time it was Crown land. I am satisfied that it was a provincial park from 1976 until the 1989 Order in Council; a period of 13 years. An attached plan (also stamped Schedule “A” ) indicates that the total park area was 175 acres.
[55] The words “to be withdrawn from park” appear on that Schedule “A” with lines and arrows pointing to the land on which the looped road sits. This is confirmed by an attached “briefing note” that has some redactions. It states:
The land proposed to be removed from park designation is located outside an area fenced by park staff and includes two wells, one drilled and one dug and a pumphouse which services cottages in the area. The wells are not used for park purposes and were constructed and are maintained by adjoining cottage lot owners.
Two applications have been received from individuals who require additional land in order to receive public health approval to construct cottages on their own land.
[ ] was reserved a lot of [ ] when he sold the land to the Department of Lands and Forests. Because of changes in public health requirements [ ] has been unable to build without acquiring additional land. It is proposed that a portion of the land removed from the designation and other Crown land be conveyed to [ ].
[ ] purchased a small lot adjacent to Crown. In order to receive a building permit for their cottage, additional land is required. It is proposed that a portion of the land removed from the designation and other Crown land be conveyed to the [ ].
The totality of the evidence satisfies me that the third paragraph relates to the Nickerson property.
[56] Also attached to the 1990 deed is a document entitled “report and recommendation to executive council”. Paragraph (b) states:
(b) approve Petition No. 33419 for the conveyance of a lot of Crown land containing 55,500 square feet, more or less, situate at or near Villagedale, in the County of Shelburne, as shown outlined in green on the plan Schedule “B” attached to and forming part of the report and recommendation to [ ] as joint tenants and not as tenants in common, of Brass Hill, in the County of Shelburne and to order that a quit claim deed be executed by the Minister of Lands and Forests on behalf of Her Majesty the Queen in right of the Province of Nova Scotia, to convey the said lot of land containing 55,500 square feet, more or less, subject to rights of way to adjacent cottage lot owners.
[57] The redacted names as above are disclosed in an attached order of survey dated January 8, 1990 which states:
Survey of a parcel of Crown land containing 55,500 square feet, more or less, to be conveyed under the authority of Order-in-Council No. 89-1028 dated the 6th day of September, A.D., 1989, to David Wilson and E. Lois Wilson, his wife (Petition No. 33419) of Brass Hill, Shelburne County;
The evidence establishes that the Wilsons are the Nickerson’s predecessor in title.
[58] Also attached is an April 21, 1989 letter from the Department of Municipal Affairs to the Municipality of Barrington which states as follows:
Please find enclosed the revised preliminary sketch for the subdivision of the Department of Lands and Forests [ ].
It should be noted here that the revision now states that the right-of-way as designated across the Lots 1B and 2A, which should allow the lots of [ ] and [ ] to be accessed.
Clearly Park Drive and Edgehill Avenue cross lots 1B and 2A and are “designated” on the referenced plan. The looped road, while shown by broken lines, is not designated.
[59] There are other references in Shaun Hatfield’s supplementary affidavit sworn June 20, 2012 that mention reservation of rights-of-ways. I have given great attention to the documentation, and referenced it with the totality of the evidence, and I find that these references relate to Park Drive and Edgehill Avenue and not the looped road. All of the above referenced documents were prepared by government employees at Halifax. I believe it is a safe inference that those individuals would focus on designated rights-of-way appearing on existing surveys and plans. I also believe it is a safe inference that those same individuals would not be aware of the discreet looped road. There is no evidence before me that any local cottagers raised the issue of the looped road with government authorities. I find as a fact that all right-of-way references in the above documents do not reserve the looped road right-of-way out of the 1990 deed to the Wilsons.
[60] Furthermore I am not persuaded that if I found otherwise such a reservation would keep the time running for the purpose of establishing the 20 years needed for a prescriptive easement; either by statute or lost modern grant. The Hatfields must live with the consequences flowing from Crown ownership between 1970 and 1990.
[61] In the event I am in error I will address the impact of the land being a provincial park. The Nickersons draw my attention to section 22 of the Provincial Parks Act which states:
22(1) Except as provided in this Act and the regulations, no person shall use or occupy any land, building, installation or facility in a provincial park or park reserve.
(2) No person acquires a right or title to land contained within a provincial park or park reserve through the use, possession or occupation of the land.
This legislation is very clear and does not support the Hatfields claim of a right-of-way over the looped road.
Conclusion:
[62] I find that the Hatfields have not established a prescriptive easement over the looped road because the land was owned by the Crown from 1970 to 1990. I also find that they have not established an easement by express grant or implied grant.
[63] I will order a permanent injunction against the Hatfields restraining them from using the looped road for ingress, egress and parking. They will also be restrained from trespassing on the Nickerson’s property save for travel on Park Drive.
[64] In light of the way this case has turned out I will not award damages . I will receive written submissions on costs should the parties be unable to agree.
J.