The Rural Voice, 2006-05, Page 49Agri law
Access Rights by Acquiescence
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highlev LLP.
By Paul G. Vogel
Where a landowner crosses a
neighbour's land to access his own
property for a period of 20 years or
more, the landowner may then acquire
a legally enforceable "prescriptive
easement" notwithstanding the
neighbour's later objection. In what
circumstances will a landowner be able
to successfully establish such a legal
right of access? If such access has been
exercised not with the consent of the
neighbour. is simple acquiescence by
the neighbour sufficient to establish the
access right'' Does it matter that the
requisite period of user has been
followed by a substantial period of non-
user before the right is asserted''
The Nova Scotia Court of Appeal
recently considered a case in which the
plaintiff had unsuccessfully asserted at
trial a claim to a right-of-way from a
public highway over his neighbour's
lands based upon a period of use in
excess of 20 years which terminated
more than 30 years before the access
right was asserted by the plaintiff. The
trial judge had dismissed the plaintiffs
claim on the basis that user by the
plaintiff's predecessor in title was
equally consistent with permission
having been provided by the
neighbours as with the user having
been exercised as of right.
The Court of Appeal allowed the
appeal and held that. notwithstanding
the substantial period of non -user, the
plaintiff had successfully established
his right to a prescriptive easement. In
overruling the trial judge's decision. the
appellate court relied upon the legal
doctrine of lost modern grant which
provides that a plaintiff is entitled to a
legally enforceable prescriptive
easement if he can demonstrate use and
enjoyment of a right-of-way under
claim of right which was continuous.
uninterrupted. open and peaceful for a
period of 20 years even if the 20 -year
period expires prior to assertion of the
right by court action.
At issue in the case was access
rights exercised by the plaintiff's
predecessor in title from at least 1942
until 1963 by commercial logging
trucks across the defendant's lands to
haul logs from a woodlot located on the
plaintiff's property. The plaintiff had
acquired his lands in 1991 and 1993.
There was no mention of the claimed
right-of-way in either his deed or the
deeds of his defendant neighbours.
When the plaintiff attempted to
assert his access rights in 1997. the
defendants had blocked the access
roadway which by then was overgrown
with trees and brush.
The Court of Appeal held that.
although the onus was on the plaintiff
to establish that the defendants'
predecessors in title had not given their
permission for this logging access. their
absence of consent could be established
by evidence of their acquiescence to the
logging trucks crossing their property.
The court stated that "user which is
acquiesced in by the owner is 'as of
right': acquiescence is the foundation
of prescription."
In deciding that the logging access
by the plaintiff's predecessors in title
was as of right and not by permission.
the court considered both the use of a
gate on the defendant's property by the
logging trucks and the character of their
user to he determinative. The court
held:
"From the evidence at trial it would
appear that the gate was not designed
nor secured nor located to prevent
access over the (defendant's)
property. Moreover. the truckers
opened the gate and entered the
property as if as of right — they did
not replace the poles either when
entering or when leaving, as one
might expect from persons proceeding
on a neighbourly basis ....
"Here trucks drove through the
(defendant's) property. past the house
and through the gate w the
(plaintiff's) property and then. loaded
with logs. pulpwood and Christmas
trees. travelled back the same way to
the (public highway) ... the use (tithe
roadway to the (plaintiff's) property
by commercial logging trucks was
such that it could not have been
missed by the owner of the servient
tenement."
As a result. the court concluded
" ... Once there is pre t
acquiescence in acts of user w t.. are
of such a character as to
claim of right. the claim,'•
established that the acts wcrc
right unless the owner point.
"positive acts" on his or h,r part
which either expressly or nmH ells
grant permission. Here. there was no
evidence that the owner. at an time.
took any positne steps to prevent the
use in question or did anything else
from which a grant of permission
reasonably could he implied
With respect to the defendant •
position that the extended period of
non-use amounted to an abandonment
or extinguishment of the plaintitt .
prescriptive easement rights. the :our
held:
"The non -user may he explained Fix
the fact that the dominant owner had
no need to use the easement. in which
case it will not he enough to establish
abandonment it has been said that
abandonment is not to he Iightl}
inferred: owners of property do not
normally wish to divest themselves of
it unless it is to their advantage to do
so. notwithstanding that they max
have no present use of it
In the absence of express
permission. Iegalk entorceahle
prescriptive easement rights may he
established through user for more than
20 years even though only hs
neighbour's acquiescence. Once the
necessary period of user is established.
such rights will not necessarily he
defeated even by an extended period of
non -user. To defeat such a claim.
neighbouring landowners must he 111 a
position to demonstrate "posin\e acts'
on their pan which establish that access
was exercised only with their
permission.0
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