SUPREME COURT OF NOVA SCOTIA
Citation: Balser v. Wiles, 2013 NSSC 278
Date: 20130205
Docket: Ann No. 407756
Registry: Annapolis Royal
Eleanor W. Balser
Plaintiff
v.
Tara L. Wiles, Joseph Reginald Peck
Defendant
LIBRARY HEADING
Judge: The Honourable Justice John D. Murphy
Heard: February 5, 2013 in Annapolis Royal, Nova Scotia
Written Decision: September 10, 2013
{Oral decision rendered February 5, 2013}
Subject: Real property, boundary dispute, adverse possession, easement
Summary: Adjacent property owners disputed title to a 12-foot strip of land. Applicant's predecessor to title had built a garage extending six feet onto the disputed strip, and the remaining six feet served as the Respondents’ driveway. By previous oral decision court found that the Respondents had valid legal title to the land, but the Applicant had established possessory title to the six feet upon which part of the garage was built.
Issue: Is the Applicant entitled to possession of or access to a portion of the remaining six feet in order to maintain the garage?
Result: Although the Applicant's use of the land adjacent to the garage was not of the continuous and exclusive nature required to establish possessory title, entries to construct and maintain the garage including painting, shingling, repairing and grass mowing were sufficient to create an easement in the form of a right‑of‑way.
The right‑of‑way width was fixed at four feet, a distance that corresponded to the county set back requirement from a property line for a garage, and that would allow adequate room for maintenance. Use of the easement was limited to performing reasonable maintenance and repair to the garage after providing 24‑hour notice to Respondents.
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