Supreme Court

 Judge:

The Honourable Justice C. Richard Coughlan

Heard:

January 17, 2017 in Bridgewater, Nova Scotia

Final Written Submissions:

February 17, 2017

Written Decision:

May 29, 2017

Subject:

Real property – Land Registration Act – overriding interests – correction of parcel register

Summary:

Jacob Frederick Penney purchased land at Middle New Cornwall, Lunenburg County.  The deeds to the applicants contained reference to a right-of-way to Caribou Lake over part of the land purchased by Mr. Penney.  The right-of-way was used to launch boats into the lake.  Mr. Penney’s predecessor in title knew there was a laneway to the shore of the lake which was called a common right-of-way and that the applicant Bedford Reid Langille used it to put his boat in the lake.  In the process of registering Mr. Penney’s property under the Land Registration Act the right-of-way to the lake was omitted.  Prior to purchasing the land Mr. Penney saw a plan of survey which contained a notation “Laneway to Shore”.  When he occupied the property Mr. Penney knew there was a narrow, overgrown road down the shore lot to the lake.  The applicants seek a declaration they have rights-of-way over Mr. Penney’s land.  Mr. Penney opposes the application.

Issue:

Are the applicants entitled to a declaration they have a right-of-way to Caribou Lake and to have the parcel registers for the respondent’s properties corrected to include the right-of-way.

Result:

The applicants have express grants of right-of-way to the lake as set out in their deeds.  The right-of-way is an easement or right-of-way that is being used and enjoyed and therefore an overriding interest as defined in s. 3(1)(k) of the Land Registration Act.

The parcel registries for the respondent’s properties will be corrected to include the right-of-way to Caribou Lake.