SUPREME COURT Citation: Chishoim v. Snyder, 2014 Between: William Patrick V. • Glenn Douglas Snyder Judge: The Honourable Heard: July 22, 2013 Counsel: Donald Macdonald, for Daniel J. MacIsaac OF NOVA SCOTIA NSSC 36 Date: 20140129 Docket: ANT. No. 405943 Registry: Antigonish Chishoim Applicant and Thelma E. Snyder Respondents Justice Margaret J. Stewart the applicant , for the respondents
By the Court: [1] This application involves the interpretation right in favour of “Gordon Chisholm, his Gordon Chisholm to the respondents’ predecessor some 2.7 acres of Gordon Chisholm’s 150-acre Antigonish County, was conveyed, along (or its foundation), collectively “the Snyder of the 2.7-acre lot fronting on the western Road, which runs through Chishoim’s farm following: RESERViNG however to the said Gordon right and privilege to enter upon the said removing hay or other crops or improving [2] For clarity, the Snyder lot borders on some 340’ by 342’ by 353.8’. The farm house corner, with the back of the house not far Chishoim’s farm lot. The front of the 20’ by is the eastern line. The driveway runs along Chisholm’s parcel for some 240’ until it curves was at a distance of at least 50’ in front of Page: 2 of a reservation of a hay/crop heirs and assigns” in a 1960 deed from in title Ida Durant. An area of farm lot in South Side Harbour, with a 100-year old farm house and barn lot.” After describing the dimensions side line of the South Side Harbour lot, the deed then provides the Chishoim his heirs and assigns the land from time to time for the purpose of the land, the South Side Harbour Road and is is located towards the northwest from the western line abutting onto 30 or 40’ house faces the road, which the southern line abutting onto and proceeds north. Prior to 2011 it the house. Since the early 1960’s, only
the foundation of the barn has existed near feet from the north side of the house. [3] By application, William Patrick Chishoim nephew and successor in title, seeks an order enter the land now registered in the names removing hay or other crops or improving “RESERVING” clause in the Snyders’ June daughters. He also seeks an order directing on the declaration sought, i.e. removal of former state, and ceasing to mow the area The reservation in the deed, he argues, provides prendre which is valid and effectual. [4] By Notice of Contest, the Snyders “condition” given that (a) it is inconsistent and simple created by the deed; (b) from inception termination; and (c) a reasonable amount of their view, it reflects a hay lease or licence respondents argue that if the alleged condition a profit a prendre exists, then the purpose Gordon Chishoim lived on the adjacent property and “the land or hay or pasture” was needed changed and the “condition” no longer benefits they argue, it does not confer an exclusive Page: 3 the northern line, which is some 107 (Chishoim), Gordon Chishoim’s confirming and declaring his right to of the Snyders “for the purpose of the land” as stipulated in the 2011 deed from Ida Durant’s the Snyders to perform acts consequent a foundation, return of the land to its reserved for stated agricultural use. at law for a grant of a profit a seek dismissal of the “void or voidable” repugnant to the estate in fee it did not contain a time for time has elapsed since its creation. In revocable at will. Alternatively, the is valid, and a right in the nature of for its creation has expired, in that when the “condition” was created ; but, these circumstances have the dominant tenement. Further, right on Chishoim to cut hay or other
crops or improve the lands. The Snyders would permit them to construct a family residence, shops, and property, given that, when it was granted property. Finally, the Snyders say, if the “restriction” the form of damages, not specific performance. Relying the sum of $2500 was deposited with the [5] In essence, the issues as argued by What is the nature of the reservation in the there any basis for determining that it has What is the appropriate disposition? Factual Background [6] In 1972 Gordon Chishoim, who had deeded it to his brother Ronald Chisholm, who, in applicant, in 1998. The Snyder lot had been 1960. At that time, Gordon Chisholm had cattle. The barn burnt down in 1972 and the [7] As a boy in the early 1960’s, Chisholm the then Durant lot (the Snyder lot). After eventually took over ploughing, cultivating income source for the Chisholms, as well as Since 1998, Duncan MacIntosh has seeded Page: 4 submit that any rational interpretation a septic bed on the to Ida Durant, a dwelling existed on the is upheld, relief should be in on “doctrine of tender”, court. the applicant’s counsel are threefold: (1) deeds and does it remain extant? (2) Is expired or is limited in any way? (3) owed the Chisholm lot since 1959, turn, deeded to his son, the excepted out since the conveyance in a large cattle barn and a herd of some 78 cattle were sold off. assisted his uncle in mowing hay on 1972, he assisted his father, and and growing the hay. Hay was an being used for cattle feed until 1972. and mowed the lot, removing round
bales of hay annually. This was done by agreed statement of facts from Macintosh [8] Until the Snyder purchase in 2011, the a summer home, sometimes for as little as stopped mowing the hay, he (and his uncle Chishoim later did some back cutting near Glenn Snyder, MacIntosh has neither mowed to the north of the driveway between the mowed flush to the house; rather he appears road and the house on the east side, some house and the northern line some 47’ from the outside of the trees, leaving the Snyders the house and the trees since the 2011 purchase. [9] In Chishoim’s recollection, since the barn has existed near the northern line and the house and he was able to mow over it. It is the lot between the south side of the house trees is located, has never been seeded or doing so. Besides removing hay from the driveway and not between the south side the Chisholms have been involved in plowing past, crops like oats have been planted on for the last eight years. Page: 5 agreement with Chisholm. No affidavit or was filed. old farmhouse had only been used as a weekend a year. Until Chisholm before him) mowed flush to the house. the house for Macintosh. According to a soft spot along the south side and main road and the house, nor has he to be guided by trees between the 69’ from the house and between the the house. This amounts to cutting on to mow and clean up the area between early 1960’s, only the foundation of the to the north of the driveway in front of common ground that the portion of and the southern line, where a clump of mowed and there is no intension of area not occupied by the house and of the house and the southern line, all of and seeding the Snyder lot. In the the lot. The lot has not been ploughed
[10] The Snyders have used heavy equipment and some 240 feet along the driveway left unmowed waiting for MacIntosh to cut before cleaning afterwards. With respect to the house, they also created a new foundation or frost wall with house and the driveway and moved the house occupy about the same amount of space as thereby butting up to the driveway and occupying Chisholms. The property has a 2013-2014 taxes are $185. The Snyders purchased the [11] Prior to its conveyance to the Snyders into the land registration system. The parcel description the reservation referred to in the deed, flowing in Gordon Chisholm’s 1960 deed to Ida Durant. It is were aware of Chishoim’s right to remove Glenn Snyder was informed of this by the made no attempt to ascertain the nature and until a month or so after the purchase to enquire of having the reservation released, which subsequently advised, orally and through what, if anything, the Snyders could do. He held off subject to resolution of the dispute. He the reservation and insisted he had the right Page: 6 to mow the soft area in the front, by MacIntosh, as well as up and then keeping the lot cut removed the northern addition. They slab between the front of the over to it. The result is that they before, but 20’ east of the old location, land previously mowed by the tax-assessed value of$l8,000. Property property for $20,000 in 2011. in 2011, the lot had been migrated attached to the deed notes from an “easement” over the lands uncontested that the Snyders hay. In addition, prior to the purchase, vendors, Ida Durant’s daughters. He extent of the reservation. He waited of Chishoim as to the possibility Chishoim declined. Chishoim counsel, that there was an issue as to suggested that expenditures should be objected to the Synders ignoring to mow the area not occupied by the
house and driveway. He points to actions foundation in a previously mowed area and area between house and road and interfering [12] Glenn Synder testified about intentions old house and the road, requiring a septic garage; to add an outbuilding; to improve vegetable garden; and possibly to subdivide on which to build. In his view, Chishoim enough room after he builds his retirement home, but the “lease off’. Analysis [13] I turn now to the nature of aprofit results flow from the terms of the 1960 deed conclude that the deed, taken as a whole, creates land in the nature of a profit a ‘prendre; the the way the Snyders see fit to use their land interest of Chishoim as owner of the profit. Page: 7 such as excavating and laying new then moving the building, mowing with second cut. to build a new home between the system; to convert the old house into a the well; to plant a I 0-by-5 foot in order to provide his son with land could make hay and mow it if there was respondents want the a ‘prendre and a consideration of what and the reservation therein. I a grant of a real interest in the central issue thus becomes whether is reasonable having regard to the
The Nature and Effect ofthe Reservation Whether a profit a” prendre exists [14] A profit a ‘ prendre is often described of another. In British Columbia v. Tener, [1985] C.J.C. concurring, provided the following 12 Aprofit a prendre is defined in Stroud at p. 2141 as “a right vested in one man of taking therefrom a profit of the soil”. In Black defined as “a right to make some use of the metals, and it carries with it the right of entry from the land the designated products or profit and such of the surface as is necessary and convenient for 13 Wells J. elaborated on the nature of aprofit [1948] O.W.N. 378 where he said, at p. 380: It has been said that a profit a prendre off the land of another person. It may right to enter on the land of another the soil such as minerals, oil, stones, trees, turf, fish the use of the owner of the right. It is and unlike an easement it is not necessarily dominant tenement but may be held may be assigned and dealt with as the ordinary rules of property. It is important to note that it is the in the holder of the profit a prendre severed. The holder of the profit does They form part of the fee. What he the right to exploit them through the 14 Profits a prendre may be held independently i.e., they may be held in gross. In this they they may be appurtenant to land as easements which is attached to the ownership of land Page: 8 in law? as a right to make some use of the soil 1 S.C.R. 533, Wilson J., Dickson definitions at paras. 12-14: Judicial Dictionary (4th ed.), vol. 4, entering upon the land of another and Law Dictionary (5th ed.), it is soil of another, such as a right to mine and the right to remove and take also includes the right to use exercise of the profit”. a prendre in Cherry v. Fetch, is a right to take something be more fully defined as a person and take some profit of or game, for an incorporeal hereditament, appurtenant to a as a right in gross, and as such a valuable interest according to right of severance which results acquiring title to the thing not own the minerals in situ. owns are mineral claims and process of severance.... of the ownership of any land, differ from easements. Alternatively, are, i.e. they may be a privilege and increases its beneficial enjoyment.
In this case the respondents would appear they do not own any land to which the profit is [15] Rowe, J.A., drawing from Halsbuiy Logging Corp. v. Arbitibi-Price Inc., 2005 overview of the nature of aprofit a ‘ prendre, at para. 16: A profit a prendre is a right to take more fully defined as a right to enter soil [including timber] ... for the use A profit a prendre is an interest in must be in writing. A profit a prendre portion only of some specified produce the land as a right to take the whole The owner of aprofit a prendre has action for trespass at common law Profits a prendre, though sometimes distinguished from mere licences, which interest or alter or transfer property which otherwise would have been nor can it be perpetual; it is not binding matter between the licensor and the A profit it prendre ... may be created always been regarded as incorporeal hereditaments created by deed. ... [para. 253] No particular form of grant and no a prendre. ... If the effect of a deed as a whole, is to create a right of the will be construed as a grant of that right. ... The owner of a profit a prendre may either in person or by his employees, and by selling or leasing an interest in term, to any person capable of taking Page: 9 to have a profit a prendre in gross since appurtenant. ‘s Laws ofEngland, in Chain Lakes NLCA 13, provided the following something off another person’s land. It may be another’s land and to take some profit of the of the owner of the right. ... [para. 240] land, and for this reason any disposition of it which gives a right to participate in a of the land is just as much an interest in of that produce. ... [para. 241] rights of a possessory nature, and can bring an for their infringement. [para. 251] called “licences”, must be carefully are not tenements and do not pass any in anything, but only make an act lawful unlawful. A mere licence is not transferrable, on the tenement affected, but is a personal licensee. [para. 252] by express grant ... Profits it prendre have ... only capable of being particular words are necessary to create a profit or other instrument, when the words are taken nature of a profit a prendre, the instrument [para. 255] in general take the subject matter of the right he may also get the benefit of his right the profit a prendre, for a longer or shorter such an interest; and so long as that interest
endures the donee has an irrevocable thus been granted to him. Epara. 257] A profit a prendre cannot exist by [16] In Manitoba v. Senick, [1982] M.J. No.93 quoted from Megarry and Wade’s Law ofReal A licence may be coupled with some proprietary the right to enter another man’s land to hunt and enter and cut down a tree and take it away, involves to enter the land and a grant of an interest common law such a licence is both irrevocable interest with which it is coupled. [17] The court also cited Duke ofSutherland 484, to the effect that unless it is explicitly prendre that “the owner of the profit has the owner of the land may also remove from the subject matter of the grant.” In the Digest (London: Stevens and Sons,1888), Stephen and elaboration on the nature ofprofit a ‘prendre: Profits a ‘ prendre, being incorporeal hereditaments, are prescription. The grant of a profit a ‘ prendre granted for a freehold interest or for a term operates only as a licence and is revocable... [346] Page: 10 licence to take so much of the profit as has custom ... [para. 260] (Man.C.A.), at para 9, the court Property (t4h ed.) at p 779: interest in other property. Thus take away the deer killed, or to two things, namely, a licence (profit a’ prendre) in the deer or tree. At and assignable, as a adjunct of the v. Heathcote, [1821] 1 Ch.475, at stated in the deed granting a profit a’ exclusive right to the profit, the land the substance which was the of the Law of Uses and Profits ofLand Martin Leake provides further detail created by grant or by requires a deed, whether it be of years; and if not made by deed, it
A right to the sole and exclusive pasture over gross in a man and his heirs, for an estate claimed by grant or by prescription at common same or for any less estate .... A similar grant may venture of land, vesturu terre, including the brushwood and litter growing upon the land like pasture, only fed off by cattle; but without any beyond the necessary easement of entering granted... A grant of such profit may be limited limited to the first crop,prima tonsura, excluding The grantee ...of the herbage or vesture of the time being so far as is necessary for taking maintain an action of trespass in right of that actual possession. The soil subject to such exclusive possession of maintaining an action for a trespass upon of action for a trespass to the subsoil... [331-332] The grant of aprojlt a prendre imports all rights profit in the usual and proper manner, including reasonably be required for that purpose. [348] [18] The finding that hay was capable of profit a ‘prendre, a basic criteria in any analysis the Manitoba Court of Appeal in Senick, supra. This crop of grass (herbage or vesture of land) “growing grass is the natural and permanent produce time to time without cultivation” (Law of [19] In Senick, supra, besides granting the “the right to remove hay” from the parcel sold right to “upgrade the hay on this said parcel whenever also granted. I note that the phrases “from appear in the Chishoim reservation. I am satisfied Page: ii the land of another may be vested in analogous to a fee simple; it may be law; it is also assignable for the be made of the herbage or crops of grass, underwood, to be cut and taken away, and not, right or interest in the soil upon the surface to take the profits to a certain season ... or it may be all other rights and profits... land has possession of the surface for the profits granted, and he can owner of the the surface is excluded from the surface only; but he retains the right accessory to the taking of the such use of the land as may being the subject matter of a grant of a of same was not questioned by follows given that hay is a that has been dried and taken away and of the land renewed from Uses and Profits ofLand at 44 and 331). vendor, his successors and assigns “as long as he wishes to do so”, a he wishes to do so” was time to time” and “improving the land” that the reference to “hay” in the
1 960 deed does not mean “a hedge or enclosure” with a “hay-bote”, being “a liberty to take repair hedges, gates, fences, etc. ...; also wood (Wharton’s Law Lexicon, A. S. Oppe (4thl grant the Snyder lot was not wooded and for crops, they are mentioned, along with Canada as natural produce capable of being prendre after entering onto the owner’s land: Saulnier Canada, 2008 SCC 58 at para. 28. In stating “common law profit a ‘prendre” is “undeniably Whether the Reservation is inconsistent and the deed? [20] The respondent submits that the reservation repugnant to, the estate created by the deed. Among and Honsberger, The Law ofReal Property that a “condition or deed which is repugnant created by it is void. This is because the grantee interests that are recognized by law; they interests.” The principle is that a condition, the destroy or take away the enjoyment of the conferred on the holder of the fee: Re Malcolm,[1947] Page: 12 or “net to take game” associated thorns and other wood to make and for making of rakes and forks ed., 1953) at 467). At the time of the such a definition of” hay” is ancient. As game birds, by the Supreme Court of extracted by a holder of aprofit a v. Royal Credit Union of such, Binnie J. confirmed that a a property right”. repugnant to the estate created by is inconsistent with, and the authorities cited is Anger (3’ed., 2006), at 8-10, where it is stated to the very essence of the estate or testator is limited to creating do not have the capacity to alter those effect of which would be to fee simple, is repugnant to the rights O.J. No. 590, at para 8.
[21] Gordon Chishoim granted Ida Durant the land, reserving out the right of entry from hay or crops or improving the land to himself right to enter and remove is the holder’s right other crop: MIB. Enterprises Ltd. v. Defence S.C.R. 619, at para 29. The reserving out was (“together with” ) all buildings belonging successors of quiet enjoyment and of authority estate in fee simple followed. [22] No issue is taken with the fact that the conveying a fee simple estate. The issue, it appears, is reservation, is inconsistent with and repugnant acres so as to be void in law. Among the factors the limited size of the land described in the yield and of the applicant wanting to confine house and driveway as of the time of the conveyance. The inadmissible to find one term of conveyance conclude there is a lack of ambiguity in the of the conveyance to indicate any contrary unambiguous words of the reservation. Any the issue of rights and obligations of the parties below. Page: 13 fee simple in a 2.7-acre parcel of time to time for the purpose of removing and his successors. Implicit in the to mow, cut, or harvest the hay or Construction (1951) Ltd., [1999] 1 followed by the grant including to the land. Covenants to Durant and her to sell and convey what was a good deed contains language clearly whether the condition in the to a fee simple grant the size of 2.7 suggested as being relevant are deed and the extrinsic evidence of its the Snyders to the boundaries of the latter facts are repugnant to another, given that I deed. There is nothing in the context meaning to the plain, clear and consideration of same is reserved for as owners of interests that follows
[23] Reading the deed in its entirety while interpretation inclusive of reservation provisions, as v. Periot Family Farm Ltd., 2003 PESCAD Chishoim did not retain title to the 2.7 acre reserved to Chishoim the right to enter and with the reservation on land occupied by grant of the fee simple and, when read in repugnant to the grant. It is not a question law. The case is distinguishable from those void as restraints on the power of alienation al (1976),1 1 O.R. (2d) 129 (Ont. C.A.).) and his assigns the right to remove hay from qualified the grant of the fee simple, as in reservation due to lot size noted in the deed, one 2.7 acres when the reservation was granted obvious about acreage of 2.7 as a term of or being inconsistent with, such a reservation, which parameters or descriptive words to suggest otherwise. Expiry or Limitation ofthe Reservation [24] The Notice of Contest raises two issues: (b) did not contain a time for termination” and reasonable amount of time has elapsed since Page: 14 applying the law relating to set out and applied in Poista 23, at paras. 13-16, it appears that parcel; however the conveyance remove hay or crops in accordance building(s). The reservation qualifies the the context of the whole document, is not of creating an interest not recognized in where (for example) conditions are (Stephens v. Gu(f Oil Canada Ltd. et As grantor, Chishoim retained for himself a portion of the land and thus Poistra, supra. As to repugnancy of the or more buildings existed on the and later registered. There is nothing the deed not being able to accommodate, is without specified the condition “in its inception (c) the condition is “invalid because a its creation.” In support, the
respondents cite Imperial Oil Limited v. Young, [1998] a case which dealt with an agreement that did prendre, but rather a contractual licence terminable certain circumstances. As a mere or bare a property right and not transferable, unlike incorporeal hereditament and, as noted above with according to the rules governing the v. Silvergien Farms Ltd. and George, [1983] [25] In this case, the reservation is in a thus gives the entire interest, subject to a transferable and is not subject to termination; there indication of such, and there has been no for a right such as that reserved in the deed v Petch supra at para 19); indeed, such does contemplation of the parties to the 1960 conveyance. The registered expressly says the right granted The court in Cameron, supra, addressed the instrument used the specific language of “unequivocally implies and presumes” it (para. 11). Such only was termination not necessary or contemplated, but, there on a reasonable amount of time elapsing terms of the condition. Essentially, the Snyders dealing with the law pertaining to licences non-licence situation. Page: 15 N. J . No. 248 (Nfld. C.A.), not create an easement or a profit a’ with reasonable notice in licence, the right to park vehicles was not a profit a ‘prendre, which is an in Haisbury ‘s, a property right dealt conveyance property (see also Cameron N.S.J. No. 415 (C.A.), at para. 8). deed which grants a fee simple. The deed qualification. This qualification is is no explicit or implicit surrender or merger. It is not necessary to provide for termination (see: Cherry not appear to have been in the deed as accepted and is to be for the Grantor and his assigns. issue of assignability where the “assigns,” holding that such a use is my interpretation. Not can be no reliance when assignability is invoked by the have relied upon an authority and have asked that it be applied to this
[26] What is the effect, it any, of the reservation of Gordon Chishoim in the 1960 deed? From concluded it reserves to Chishoim a right, in enter from time to time upon the lands which remove the hay or crops by mowing or harvesting, and improve the land. The extent of the right is assigns, and the registration of the deed. A hereditament, runs with the servient land. It can land registration system. When registered, the the land is sold, the profit is transferred to to the land. It gives Chishoim the right to crops from the land. Subject matters that are owned. Although aprofit is an interest in given until it is taken. Therefore it is presumptively and no such intention is expressly stated. Chishoim’s seasons, and only limited in the taking by period. A profit can be for any length of time. It terminates specified term if such appears in the deed; by orders it terminated. None of these circumstances Alterations to Dominant Tenement Extinguishes [27] The respondent’s essentially argue prendre existed, it was extinguished years Page: 16 of hay and crop rights in favour the principles cited, I have the nature of a profit a prendre, to were conveyed in the deed and to to take it away and to addressed in the references to heirs and profit a ‘ pendre, as an incorporeal be registered on the title under the profit runs with the land, and when the new landowner along with the title enter the Snyders’ land and take hay or part of the land and capable of being land, no specific property in the profit is not exclusive to Chishoim, right is limited by the the number of cuts capable per growing at the end of the surrender or merger, or when a court exist here. the Profit that if a right in the nature of aprofit a’ ago “because the purpose for which the
condition was created has now expired.” another, that do not satisfy the legal conditions dominant tenement, may be held as rights being the subject of a grant. (Leake, supra, at 328) conditions of appurtenancy in relation to there is an alteration of the dominant tenement, then dominant tenement are extinguished wholly alteration of the tenement as destroys or diminishes (Leake, supra, at 356-357). [28] Here, the language of the reservation the hay that would indicate appurtenancy words limit what use can be made of the removed of the profit both then and now, retained originally using the grant for hay for cattle would do with timber. If appurtenancy can benefit to the land of the owner of the profit the land, i.e. wintering cattle in a barn, then However, the hay continues to be sold. Chisholm ceased getting the benefit of their right, and MacIntosh. If the profit appurtenant has been alteration of the Chishoim tenement, since removal of the hay is still held as a right in circumstances. It is a right exercisable by Page: 17 Profits to be taken from the land of of appurtenancy in relation to a in gross, provided they are capable of At the same time, when legal a dominant tenement are satisfied and the profits appurtenant to a or in part by such permanent the appurtenancy of the profits does not state a purpose for removing to a dominant tenement, and no specific hay. The Chishoims, as owners ownership interest in the abutting land, fodder, as well as selling it as one be read into the reservation and if the is meant to include the use made of both the barn and the cattle are gone. and his predecessors never he continued by leasing his interest to extinguished by the permanent it is no longer a cattle farm, then gross, unaffected by such Chishoim, the owner of it independently
of his ownership of any land. The reservation extinguished due to alteration to the Chishoim Rights and Obligations ofthe Owners ofthe Prendre [29] As noted earlier, in dealing with this Anger and Honsberger, supra, at p. 17-29, where profit a ‘prendre does not clearly and explicitly simple owner “may take from the soil the of the profit a ‘prendre.” Further, the servient owner that is reasonable having regard to the interest of question of fact. Similarly, the grantee of land reasonably having regard to the interests profit a ‘prendre who damages the servient lands [301 The language of the reservation does Chisholm exclusivity of the hay and crop prevented from taking same off their land, did exercised in any capacity, and it need not be Chisholm’s right to carry on the activity. The inevitably going to reduce the rights of the servitude or profit will bar some ordinary whether the way in which the Snyders see regard to the interest of Chisholm as owner Page: 18 is not rendered void or the profit lot. Servieiit land and ofthe Profit a’ central issue reliance is placed upon the authors observe that where a create an exclusive right, the fee same sort of thing granted to the grantee “may use the land in any way the other. What is reasonable is a a profit a prendre must use the servient of the grantor. The grantee of a will be liable in damages...” not clearly and explicitly afford rights. The Snyders, while they are not not cite it as a right intended to be considered in the context of right to remove hay or crops is Snyders, the servient owners, as every use of the servient land. At issue is fit to use their land is reasonable having of the profit, and whether they are to
be left with no use of their land beyond Chisholm’s parameter (south side excluded), and driveway practice and experience of nominal or limited [31] On any view, in practical terms, the substantial interference with the use of the (as per the deed) always intended for the yielding profit to be taken away. If seasonal growing to occur flush to the house, as has occurred permanent on the rest of the land without interfering would mean no garden, no outbuilding, no hand, if the Snyders are allowed to subdivide another lot and residence besides building Chishoim will be denied his right when one which on the evidence appears to allow for from extensive and is exclusive of the unmowed in the front. [32] Reasonable ordinary use of the Synders’ property, in my opinion, entails an area that is with reservation rights not interfering with to make of it is only limited by regulations, building inhabited home on 2.7 acres to 25 feet of Indeed, the facts indicate that for more than MacIntosh cutting and removing the hay, it was Page: 19 proposed 25-foot home usage based on past cutting occupancy. right claimed by Chishoim is a land by the Snyders. The property was dual purpose of being lived upon and and then mowing is allowed in the past, they could not do anything with the right claimed. This new residence, and so on. On the other 2.7 acres in order to allow for a new residence on the existing lot, considers that the present hay yield, some space around the house, is far soft area along the driveway and land as a residential or home both functional and recreational, its permanency. What use they see fit codes, etc. To confine an curtilage would be unreasonable. two years of the 15-year period of only cut outside an area marked
by trees, 47 feet to the north of the house the east of it. When and how often Chisholm inside area was not indicated. The assertion immediately north and east of the house went unchallenged. The has not always been cut and taken, and for away, granted this was done under Chisholm’s acreage it creates. Based on the estimate turns, and 107 feet from the house to the footage of the two areas outside the trees 182.80 (355.80- 171)) is 1.59 acres of the with MacIntosh have evidently been satisfactory Snyders the inside area is a reasonable use infrastructure and new construction or replacement or old dwelling. Indeed, the functional space apparently located to the north of the trees uncontentious that the area extending from southern property line and west of the driveway never seeded or mowed. The approximately driveway is occupied by the old footprint and portion of that area immediately to the west of blended together with Chisholm’s abutting where the septic for the house is located. Page: 20 and 69 feet (including the driveway) to did a back-cut for MacIntosh on the of MacIntosh’s wider unmowed area hay in this area the last two years the Snyders cleared it protest. Reasonableness lies in the of 240 feet along the driveway, until it northern line, the combined square (240 - 69 = 171 x 342 and 107- 47 = 60 x 2.7 acre lot. Chishoim’s arrangements for 15 years. Allowing the of their land to provide for renovation of the 100-year at one time included a barn that was in an area now mowed for hay. It is the south side of the house to the where it turns to the north was 100-foot wide area to the west of the new location of the farmhouse. The the old house location simply lot when he was cutting. This area is
Conclusion [33] I conclude it is reasonable in these their land inside the tree lines as appropriate specifically, west of a straight north-south northern and southern lines and south of their western line and its intersection with actionable infringement of the reservation uncontentious area south of the old house west of the old house and east of the western line and north of the uncontested area and 1.59 acre section to the north and east of running along the South Side Harbour Road should assume that there is going to be second agent unless advised otherwise and not mow Chisholm’s right is not first cut limited. Neither subdividing the property, as it would extinguish hay, the soft area is obviously capable of agent’s call. If it is not mowed during the can take what steps they need to cut it and the growing season. [34] As for rejecting Chisholm’s application judicial control, many interests in land, such to accommodate and cooperate with each Page: 21 circumstances for the Snyders to use curtilage for the homestead dwelling, (Ti) tree line between the Snyders’ a straight west-east (T2) tree line between the Ti tree line. This would not be an rights. This is inclusive of the and west of the driveway, the area to the line and to the south of the T2 tree southern line. The reverse L-shaped the Ti and T2 tree lines, with the base obviously is unaffected. The Synders or third cut by Chishoim or his to keep tidy after the first as should they contemplate Chisholm’s right. Focussing on being mowed and that is Chisholm or his period of the first cut, then the Snyders keep the soft area mowed for the rest of because the right is incapable of as easements, involve parties having other; the same is true here. The
reservation stands and is neither voided declaration in the nature of a profit a ‘prendre [35] If necessary, the parties may address Stewart, J.Page: 22 or terminated An order providing for a is granted. costs in writing.
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