Sherbinin v. Jackson, 2011 BCSC 74

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sherbinin v. Jackson, 2011 BCSC 74 Date: 20110124 Docket: 15766 Registry: Nelson Between: Peter Sherbinin and Elfreide Sherbinin Petitioners And Stanley Jackson, Randy Sauer and Frances Sauer Respondents - and - Docket: 15885 Registry: Nelson Between: Stanley Jackson, Randy John Sauer and Frances Ann Sauer Petitioners And Peter Ronald Sherbinin and Elfreide Joann Sherbinin Respondents Before: The Honourable Madam Justice Fitzpatrick Reasons for Judgment Counsel for the Petitioners in Action 15766 and Respondents in Action 15885: C.E.

Smith Counsel for the Respondents in Action 15766 and Petitioners in Action 15885: T.W. Pearkes A. Fernandez Place and Date of Trial/Hearing: Nelson, B.C. November 30, 2010 Place and Date of Judgment: Nelson, B.C. January 24, 2011 Introduction [ 1 ] The parties own adjacent properties along Erindale Road in Nelson, British Columbia. All of the properties are on the south side of the west arm of Kootenay Lake and enjoy waterfront access.

Unfortunately for these neighbours, what was to have been an idyllic existence on the shores of this tranquil lake has descended into acrimony, threats, and, now, litigation. [ 2 ] These two actions involve the same parties and essentially the same issue: whether or not a registered easement relating to these neighbouring properties is valid and, if not, whether rights of access should be confirmed by a court-ordered equitable easement under the doctrine of proprietary estoppel.

Background [ 3 ] Peter and Elfreide Sherbinin (the “Sherbinins”) are the owners of 6565 Erindale Road, Nelson, British Columbia (“Lot 1”). To the immediate east of Lot 1 is a lot owned by Stanley Jackson (“Mr. Jackson”) at 6615 Erindale Road (“Lot 2”). To the immediate east of Lot 2 is a lot owned by Randy and Frances Sauer (the “Sauers”) at 6659 Erindale Road (“Lot A”).

[ 4 ] The land on which the parties now live was originally used for a log sorting operation by Kootenay Forest Products. In or around 1985, the land was subdivided into these residential lots by Shrader Development Corporation (“Shrader”). The lots are located along the shoreline and begin with Lot 1 on the west and then with Lot 2 and Lot A to the east. There is a Canadian Pacific Rail (“CPR”) line to the immediate south of all three lots which stands as a barrier between the Proctor/Harrop Highway immediately to the south of the rail line and the lots.

Lot 1 has direct access from the public Erindale Road immediately to the west. Since there is no access to the public Erindale Road from Lot 2 and Lot A, road access is possible from Lot 2 only over Lot 1 and from Lot A only over Lots 1 and 2. [ 5 ] In order to ensure that there was road access for Lot 2 and Lot A (which presumably enhanced the value of those lots), Shrader prepared an easement dated October 23, 1985.

The easement specifically stated, in various numbered “whereas” clauses, that the owner of Lot 2 (described as a dominant tenement) required an easement over Lot 1 (described as a servient tenement) and that the owner of Lot A (also described as dominant tenement) required an easement over Lots 1 and 2 (described as servient tenements).

The easement then provided the following in a further unnumbered clause: AND WHEREAS there is a road crossing the Servient Tenements and providing access to the Dominant Tenements herein, for the persons and vehicles for all the usual purposes of ingress, egress and regress through along and over; [ 6 ] The easement was registered against Lot 1 as the servient tenement in the Nelson Land Title Office on October 25, 1985, under registration numbers U24135/136.

Corresponding legal notations were made on the titles of Lot 2 and Lot A as the dominant tenements. [ 7 ] In 1985, there was an access road from the public Erindale Road beginning on Lot 1 and crossing over all three properties, however, it was in a completely different place than the access road that exists today.

At that time, the access road travelled along the northern portions of all three lots close to the shoreline, presumably consistent with the prior use of the land as a log sorting operation which would have required access to the lake as a means of transporting logs. [ 8 ] Over the years that followed, there were various changes to the ownership of the three lots and the location and use of the access road that existed in 1985. These facts were not controversial. A chronology of those events is as follows: 1986- 1987 Lot 1 is purchased by William Carlson. Lot A is owned by Viola Thompson. Mr.

Jackson also purchased Lot 2 in 1986. Around that time, he moved a mobile home onto the lot and used it for primarily recreational purposes. He was aware of the registered easement and, in addition, was obviously aware that there was access to his lot along the old lakefront access road across Lot 1 which extended into his Lot 2. Mr. Carlson recognized that the access road bisecting Lot 1 towards the lakefront was not desirable. Accordingly, he constructed a new access road from the public Erindale Road along the southern portion of Lot 1.

When this new access road crossed the boundary between Lot 1 and Lot 2, it turned northward towards the lake along the boundary and then met up with the original access road along the lakefront side of Lot 2 leading into Lot A. The original lakefront access road across Lot 1 was then abandoned. Mr. Carlson did not take any steps to register the new access road with the Land Title Office or cause the title of Lot 1 or the registered easement to reflect the new access road. When Mr. Carlson moved the access road to the southern part of Lot 1, he did not consult with Mr. Jackson or Ms.

Thompson, nor did he ask either of them for any contribution, financial or otherwise, in constructing the new access road. 1991 Mr. Carlson sold Lot 1 to Linda Ferniuk. Mr. Jackson and Ms. Thompson continued to own Lot 2 and Lot A, respectively. Like Mr. Carlson, Ms. Thompson’s husband, Keith Thompson, recognized that the location of the original access road along the lakefront portion of Lot 2 and Lot A was undesirable. Accordingly, Mr. Thompson had discussions and came to an agreement with Ms. Ferniuk and Mr.

Jackson to move the access road on Lot 2 to the southern part of Lot 2 which again would continue to provide access to Lot A but at a more southerly location away from the lakefront. This project had little, if any, effect on Lot 1 since the new access road on that lot had already been moved to the south some years before, and the new access road on Lot 2 was simply an extension of that road. It did, however, remove traffic from the easterly boundary of Lot 1. 1992 The Sherbinins purchased Lot 1 from Ms. Ferniuk and they have resided there full time since then.

At the time of their purchase, the Sherbinins were aware of both the registered easement and the new access road on the south side of Lot 1 which provided access to Lot 2 and Lot A. Mrs. Sherbinin gave evidence that she was never made aware of any agreement between the previous owners of the lots that obligated her as owner of Lot 1 to provide access to Lot 2 and Lot A over the new access road (referring to the agreement in 1991 between Ms. Ferniuk, Mr. Jackson and Ms. Thompson).

1999 Ms. Thompson sold Lot A to the Sauers. By that time, the Thompsons had used the new access road over Lot 1 from the time of its construction in 1987 until the sale of Lot A in 1999 - some 12 years. Like Mr. Jackson, the Sauers placed a trailer on their property to be used for recreational purposes from the time of their purchase. 2002- 2003 Mr. Jackson made plans to upgrade his property. At that time, he informed the Sherbinins that he planned to excavate a full basement and place a double-wide modular home on his property. Mrs.

Sherbinin had concerns about whether the access road would accommodate the move of the trailer onto Lot 2. She indicated to Mr. Jackson that her intention was to narrow the new access road, however, she left the access road across Lot 1 intact until after his new home had been moved in. The move of the trailer onto Lot 2 caused considerable disruption to the Sherbinins and physically impacted not only the new access road but other parts of Lot 1. Nevertheless, the Sherbinins assisted Mr. Jackson in the move as good neighbours. Mr. Jackson began residing on Lot 2 full time in 2003.

It was never the intention of Mr. Jackson to own a water access only lot and the improvements that he made to his property in 2002 resulted in expenditures of approximately $192,000. 2007- 2008 The Sauers advised the Sherbinins that they were putting a modular home on Lot A. Again, through discussions with Mrs. Sherbinin, there were issues about whether or not the access road would be a viable means of transporting a modular home to the property. The moving of the modular home did impact the access road and Lot 1 as discussed below. Mrs.

Sauer indicates that since purchasing the property, they have spent approximately $335,000 on improvements to Lot A. [ 9 ] Mrs. Sherbinin filed an affidavit which provided an extensive history of her relationship with Mr. Jackson and the Sauers. As she, herself, candidly states: I have never restricted any of [Mr. Jackson and the Sauers] or their guests from using the New Access Road. On the contrary, I have aided and accommodated their use of the New Access Road in various ways without any consideration given to my legal rights, [Mr.

Jackson’s and the Sauers’] legal rights or whatever obligation I have or do not have under the Purported Easement. I did so in an attempt to be a good neighbour despite the abuse and dishonesty I endured along the way. [ 10 ] In particular, a

summary of Mrs. Sherbinin’s evidence is that: (

a) she and her husband take great pride in maintaining their property and have spent countless hours in doing that, including keeping the new access road in good repair. Neither Mr. Jackson nor the Sauers have contributed, financially or otherwise, to the upkeep of the access road. (

b) she and her husband spent substantial time and effort in assisting Mr. Jackson in moving his double-wide mobile home onto Lot 2, again without any offer of thanks or compensation. (

c) Mr. Jackson has invited the public to use his beach. These people are using the access road to transport watercraft to Lot 2 (Mr. Jackson denies that he is allowing the public to use this access road, describing these people as family or guests). (

d) she has accommodated the Sauers in assisting them in removing a cottonwood tree stump on her property at the request of Mr. Sauer. She denies Mr. Sauer’s allegation that she has narrowed the access road, indicating that the rocks placed at the side of the access road have still maintained the road width of 12 feet and has only resulted in a narrowing of the shoulder. (

e) when the Sauers moved their home onto the property, Mrs. Sherbinin pointed out that numerous branches and trees on Lot 1 had been cut back without her consent. In addition, the construction on Lot A resulted in substantial damage to the access road which was fixed by the Sherbinins without any thanks or compensation from the Sauers. It also appears that numerous of the Sherbinin’s trees were destroyed or damaged by reason of the transportation of the home over Lot 1, again without any compensation or thanks from the Sauers. (

f) in 2009, a worker employed by Mr. Jackson destroyed a tree on Lot 1. Mr. Jackson disclaimed any liability. (

g) in 2009, Mrs. Sherbinin discovered that the Sauers were advertising their property on Lot A as an open house for a business relating to the construction of modular homes. Mrs. Sherbinin registered an objection to Mr. Sauer and indicated that the access road could not be used for commercial purposes. She indicated that she was seeking legal advice. Eventually, the Sauers stopped that activity. [ 11 ] In light of what Mrs. Sherbinin termed the continual abuse of not only the access road, but her “neighbourliness”, the Sherbinins sought legal counsel in 2009.

They were advised that the easement was void of meaning and in effect, granted rights to no one. She immediately put Mr. Jackson and the Sauers on notice that she was not interested in amending the easement or providing them with a new one. Further, she advised that she was going to take steps to have the easement removed from the title to Lot 1. [ 12 ] In the meantime, all of the parties investigated whether there were other means of access to Lot 2 and Lot A besides through Lot 1. Mrs. Sherbinin suggested to Mr.

Sauer that there was a potential crossing across the CPR tracks from the immediately adjacent Harrop/Procter Highway onto Mr. Jackson’s property, Lot 2. Mr. Sauer asked Tim Marshall, a CPR track maintenance supervisor, to

inspect the area. Mr. Marshall reported to his supervisor, who, in turn, provided a letter dated September 1, 2010 from CPR indicating that it was not possible to install a safe grade road/rail crossing at that location. Further, CPR was not agreeable to an additional crossing in the area given that it was making an effort to reduce the number of crossings when possible. [ 13 ] Mrs. Sherbinin did not accept the response of CPR and she, in turn, retained a civil engineer, Bernie Penner, to inspect the area. Mr. Penner gave his opinion on October 19, 2010 that a crossing in that area was entirely feasible.

Nevertheless, counsel for Mr. Jackson and the Sauers introduced an email exchange dated November 25, 2010 from in-house counsel for CPR confirming their response that CPR will not agree to a crossing in the proposed location below Lot 2. [ 14 ] After reviewing this evidence, I accept that it has been shown that there is no other legal access available to Lot 2 and Lot A, other than road access over Lot 1 or by water. [ 15 ] Mr. Jackson gave evidence that if he did not consider that he had full legal land access to his property, he would never have purchased Lot 2, nor built his home there. Mr.

Jackson has mobility problems and indicates that if his ability to use the access road is removed, he will likely have to move. Mrs. Sauer indicates that the Sauers would not have purchased Lot A if they thought that there was no land access. Mr. Sauer, like Mr. Jackson, indicates that if the easement is cancelled, it will have serious negative consequences. He indicates that he cannot imagine having access to his home only by boat and that he would have to seriously consider selling his home. He did not consider it possible to recoup the money that he invested in his property without land access. [ 16 ] Mrs.

Sherbinin, on the other hand, indicates that she is not prepared to grant Mr. Jackson and the Sauers an easement as they have “consistently betrayed her trust, subjected her to abuse, neglected or denied the responsibility to maintain the new access road and have paid no respect to her or her property”. In my view, her principal complaints relate, firstly, to the manner of the communications from Mr. Jackson (which she says are abusive) concerning his rights in relation to the access road and, secondly, what Mrs. Sherbinin perceives to be an abuse of the use of the access road by Mr. Jackson and the Sauers.

The Applications [ 17 ] The Sherbinins filed a petition to the Court on September 9, 2010, which was amended on November 17, 2010. They seek a declaration that the easement has no legal effect and an order that the Registrar of the Land Title Office remove the registered easement from the title to Lot 1. [ 18 ] Mr. Jackson and the Sauers commenced their petition proceeding on October 8, 2010. They seek a declaration that the easement is valid and enforceable and an order modifying the easement to include terms in a proposed

Schedule A. This proposed

Schedule A can only be described as a more fulsome document that goes well beyond the terms of the easement as presently drafted. In the alternative, Mr. Jackson and the Sauers seek a declaration that they have an equitable easement over Lot 1 with free and uninterrupted right-of-way, ingress, egress for persons and vehicles through, along and over Lot 1. If the Court is amenable to granting an equitable easement, they seek an order directing the Registrar of the Land Title Office to register an easement, in the form of the proposed

Schedule A. Issues [ 19 ] The issues are as follows: 1. Is there a valid and enforceable registered easement and, if so, what are its terms? 2. If the registered easement is not valid and enforceable or is obsolete, are Mr. Jackson and the Sauers entitled to a declaration of an equitable easement providing access across Lot 1? Discussion 1. Is there a valid and enforceable registered easement and, if so, what are its terms? [ 20 ] The Sherbinins apply under s. 35 of the Property Law Act , R.S.B.C. 1996, c. 377 for an order cancelling the easement. That

section provides in part: 35

(1) A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this

section comes into force: (

a) an easement; ...

(2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that (

a) because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete, ... (

e) the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled.

[21] The recent decision of Vandenberg v. Olson, 2010 BCCA 204 at paras. 18-23 has confirmed that s. 35 of the Property LawAct is a comprehensive code that displaces the common law and that the authority of the Court to cancel an easement is predicated on afinding that is it not premature and is also constrained by the specific grounds set out in s. 35(2). [22] The Sherbinins argue that the easement is devoid of meaning because it contains no “granting” clause. In the alternative, theysay that even if the easement does grant rights, it is restricted to the original 1985 access road along the lakefront and, because that roadwas abandoned, the easement is void. They rely on s. 35(2)(

e) of the Property Law Act. For reasons discussed below, I am of the viewthat their alternative argument of abandonment is more properly advanced under s. 35(2)(

a) of the Property Law Act which allows aneasement to be cancelled if it is “obsolete”, as opposed to “void”. [23] Mr. Jackson and the Sauers, in turn, seek a declaration that the registered easement is valid and enforceable. They say that theeasement, properly construed, does provide for the grant of a right of access across Lot 1. Perhaps recognizing the difficulties arisingfrom the brevity of the “granting” clause (quoted in para. 5 above), they also seek an order modifying the easement in accordance withthe proposed

Schedule A. Although not framed as such, I take this argument to be an application for rectification of the easement sinceno application was made by them pursuant to s. 35 of the Property Law Act, similar to that of the Sherbinins. [24] Further, they say that the easement is a “blanket” easement over all of Lot 1. While no authorities were referred to me as to themeaning of a “blanket” easement, they submit that it provides Mr. Jackson and the Sauers with a right of access over any part of Lot 1and not just a specific road crossing. Nevertheless, as per their proposed

Schedule A, they are prepared to restrict their access to the newaccess road across Lot 1 that exists today. [25] As noted above, the document that is registered as the easement against title was familiar to all the parties when theypurchased their properties. Mr. Jackson confirmed that he was aware of the registered easement before he purchased his lot in 1986, aswere the Sherbinins in 1992, and the Sauers in 1999.

In any event, the registration itself constitutes notice: see Land Title Act, R.S.B.C.1996, c. 250, ss. 27(1). [26] The first question is whether the document that was registered is sufficient to constitute a valid and enforceable easement withrespect to Lot 1. The test as to whether or not an easement is valid has been well established by the English case of Re EllenboroughPark, [1956] Ch. 131, [1955] 3 All E.R. 667 (C.A.), as applied by Grant v.

MacDonald, (BC CA), 68 B.C.L.R. (2d)332, [1992] 5 W.W.R. 577 (C.A.): [8] In considering whether the agreement created a valid easement, a question that includes whether it is void for uncertainty, thetrial judge applied the characteristics of easements as described by Lord Evershed M.R. in Re Ellenborough Park, [1956] Ch. 131,[1955] 3 All E.R. 667 (C.A.), at p. 673 [All E.R.]: For the purposes of the argument before us counsel were content to adopt, as correct, the four characteristics formulated inDr. Cheshire’s Modern Real Property (7th Edn.), p. 456 et seq. They are (

i) There must be a dominant and a servient tenement: (ii) aneasement must accommodate the dominant tenement: (iii) dominant and servient owners must be different persons: and (iv) a right overland cannot amount to an easement unless it is capable of forming the subject-matter of a grant. [9] Counsel agree that this is the appropriate test. They further agree that in this case the fourth condition depends on a considerationof the questions: (

a) Whether the right conferred is too wide and vague. (

b) Whether it is consistent with the proprietorship or possession of the alleged servient owners. (

c) Whether it is a mere right of recreation without utility or benefit. [27] It is apparent from a review of the registered easement that the first two requirements are satisfied: there are dominanttenements (Lot 2 and Lot

A) and a servient tenement (Lot 1), and the easement does accommodate the dominant tenements in terms ofproviding access. The third requirement set out in Ellenborough Park is no longer required in British Columbia in accordance withs. 18(7) of the Property Law Act. Further, it is apparent that the rights of access that were intended in this matter are capable of formingthe subject matter of a grant. [28] The issue that arises in this case under the fourth requirement is whether or not any “right” has been granted.

The easement asdrafted certainly does not stand as a model of draftsmanship for these types of documents. The so-called “operative” or “granting”clause, (noted above at para. 5) is styled as a “whereas” clause which is typically used to set out pre-existing facts or statements ofintention in a document. It is, however, distinguished from the other “whereas” clauses in that it is not numbered consecutively. [29] As counsel for the Sherbinins points out, the proposed

Schedule A easement stands in contradistinction from a draftingperspective in highlighting the deficiencies, or apparent deficiencies, of this document.

Schedule A provides that “[the Sherbinins] ...assign, grant and convey unto [Mr. Jackson and the Sauers] a free and uninterrupted right-of-way, ingress, egress, and redress forpersons and vehicles through, along and over [Lot 1 owned by the Sherbinins] and the right to keep and maintain the same for the useand convenience of [Mr. Jackson and the Sauers]”. [30]

Interpretation of an easement is subject to the same principles of judicial

interpretation as govern other documents. Wheninterpreting an easement, the Court must have regard primarily to the words of the easement in determining the intention of the parties.However, if there is ambiguity, the Court may also have regard to the surrounding circumstances when the document was made: AvantiMining Inc. v. Kitsault Resort Ltd., 2010 BCSC 1181 at paras. 39 and 61; Granfield v. Cowichan Valley (Regional District) (1993), (BC SC), 79 B.C.L.R. (2d) 303, 31 R.P.R. (2d) 303 (S.C.) rev’d (1996), (BC CA), 16 B.C.L.R. (3d) 382,1 R.P.R. (3d) 211 (C.A.). [31] Surrounding circumstances may not include evidence of the subjective intent of the parties. Moreover, evidence of

surrounding circumstances must not be allowed to overwhelm the plain language of the document: Avanti, at paras. 43, 61. [32] In my view, the wording of the document indicates an intention on the part of Shrader to grant a right of access across Lot 1for the benefit of Lot 2 and Lot A. Even if one considers that there is ambiguity with respect to the meaning of the easement, I ampermitted to consider the objective surrounding circumstances when the document was made. Again, Shrader was developing threeresidential lots for sale.

The creation of this easement is consistent with that purpose since the access road no doubt added to themarketability of Lot 2 and Lot A. Further, from the time of the creation of these lots and registration of the easement, all parties acted in amanner so as to recognize these access rights. [33] I agree with the comment of the court in Grant v. MacDonald, BCCA, para. 22 where Mr. Justice Seaton stated that “I do notthink that we should struggle to conclude that an instrument is illegal or unenforceable”.

There is sufficient substance to the easement inthis case to substantiate the conclusion that access rights were intended. [34] Nevertheless, having concluded that the document is valid in the sense that it grants a “right” of access, the next question is todetermine exactly what that “right” encompasses. [35] The Sherbinins quite properly point out that the old access road in existence at the time that the easement was granted hasbeen abandoned and is no longer in use. Mr.

Jackson and the Sauers contend that the easement provides for “a road crossing”, which theysay may be in any location and not simply the location of the old access road. In my view, this argument is not sustainable based on areview of the specific wording of the easement. In fact, the easement states clearly that “there is a road crossing”, which can only meanthat the access referred to in the easement is referring to that over the road that existed in 1985. Otherwise, I would have anticipated theeasement to provide for access over “any road crossing”. [36] Further, the contention of Mr.

Jackson and the Sauers that this is a “blanket” easement that allows them access over anyportion of Lot 1 is simply not a reasonable

interpretation in light of the circumstances. These lots were developed and marketed byShrader as residential lots. Accordingly, it would, in my view, make no commercial sense for Shrader to market and sell Lot 1 as aresidential lot to a party who could, in turn, expect the owners of Lot 2 and Lot A to access any portion of Lot 1 as they might wish tofrom time to time. In my view, a reasonable

interpretation of the easement is that it provided access across Lot 1 to Lot 2 and Lot A as thedominant tenements in respect of the old access road only. [37] Given that the old access road has been abandoned, the focus of the inquiry must concern the present effect of the registeredeasement. In order to cancel the easement, I must firstly, determine pursuant to s. 35(2) of the Property Law Act that the matter is notpremature and secondly, that one of the other circumstances set out in (

a) through (

e) apply. [38] Firstly, I am satisfied the application by the Sherbinins is not premature. The old access road was abandoned some 23 yearsago. There are, therefore, likely no future considerations that may yet materialize or any other matter that would dictate a deferral of theissue: Newco Investments Corp. v. British Columbia Transit (1987), (BC CA), 14 B.C.L.R. (2d) 212 (C.A.) at 222: When Transit began construction of the Main Street station without complying with the provisions of covenants 3 and 4, Newco becameentitled to apply under s. 31(2)(

e) of the Act for an order cancelling covenants 3 to 6. On such an application s. 31(2) requires the judgeto first determine whether the application is premature. If it is, he should dismiss it even if it might otherwise succeed on one or more ofthe grounds set out in s. 31(2)(

a) to (e). Thus where it appears that considerations, material to a determination whether grounds existunder sub-clauses (

a) to (e), have not yet materialized or where, for other reasons, it would be better to defer to a later date considerationof whether the covenant should be struck out, the application should be dismissed. For example, an application under s. 31(2)(

e) on theground the covenants are unenforceable for uncertainty might be premature if it was shown that future events such as a pendingagreement or a decision on arbitration could resolve the uncertainty. However, in this case it is my opinion the application was notpremature. The future events referred to by the trial judge in support of his conclusion of prematurity are not such as will offerclarification of the essential ambiguity of the covenants under consideration. Nor is there any reason to defer to a later date determinationof the issues raised by the application. [39] I now turn to the specific grounds under s. 35(2) of the Property Law Act. I have doubts as to whether s. 35(2)(

e) applies tothis situation, as asserted by the Sherbinins. Just because the old access road has been abandoned does not, to my mind, result in theregistered easement becoming “invalid” or “unenforceable”. No authority in support of this proposition was cited to me. In my view, theapplicable provision is s. 35(2)(

a) which provides that an easement may be cancelled “because of changes in the character of the land,the neighbourhood or other circumstances the court considers material” rendering the registered easement “obsolete”. [40] The Court of Appeal in Vandenberg recently discussed the test for determining whether an easement is obsolete. MadamJustice Garson stated: [26] The appellant argues first that s. 35(2)(

a) is applicable. [27] In the case of Chivas v. Mysek, [1986] B.C.J. No. 2547, Mr. Justice Lambert described the tests for determining whether aneasement is obsolete for the purposes of that section.

He held: ... in my opinion, the test of whether the easement or restrictive covenant or other charge is obsolete is not a test to be satisfied on thebasis of balancing the rights of the parties, but rather by a consideration of the nature of the charge itself in the circumstances of the useof the relevant property and a determination of whether on those facts the charge or interest is obsolete. [28] Obsolescence is to be determined in accordance with its dictionary meaning, as held by Prowse J.A. in Portrait Homes Ltd. v.Strata Plan LMS 1191, 2002 BCCA 257, 212 D.L.R. (4th) 295, 167 B.C.A.C. 286 at para. 23: [23] In determining whether an easement is “obsolete” within the meaning of s. 35(2)(a), this Court has stated that the word"obsolete" should be given its ordinary meaning.

For example, in Collinson v. LaPlante (1992), (BC CA), 73 B.C.L.R.(2d) 257 (C.A.), Madam Justice Southin, speaking for the Court, stated at para. 19:

No technical meaning is to be given to the word “obsolete” in this provision [s. 31(2)(a)]. It is an ordinary English word which isdefined in the Shorter Oxford Dictionary, 3d ed., thus: 1. That is no longer practised or used; discarded; out of date. 2. Worn out; effaced through wearing down, atrophy, or degeneration. [41] The registered easement provides for access over a road that was abandoned some 23 years ago and no longer exists.

Byreason of this fact, there has clearly been a change in the character of the land and the neighbourhood, or alternatively, this is a“circumstance” which I consider to be material in this case. The abandonment of the old access road has resulted in that road being “nolonger --- used” or “discarded” per Vandenberg. The abandonment of the road has, in my view, resulted in the easement becomingobsolete pursuant to s. 35(2)(

a) of the Property Law Act. [42] As stated above, while Mr. Jackson and the Sauers applied to modify the easement in the terms of proposed

Schedule A, theydid not advance any argument pursuant to s. 35(2) of the Property Law Act as to the basis upon which the Court may have done so. Inaddition, there was no argument advanced to rectify the easement under the usual principles. [43] As such, I would accede to the argument of the Sherbinins that the easement registered in the Nelson Land Title Office onOctober 25, 1985 under registration number U24135/136 against Lot 1 should be cancelled. An order will go directing the Registrar ofthe Land Title Office to remove the easement from title to Lot 1. 2.

If the registered easement is not valid and enforceable or is obsolete, areMr. Jackson and the Sauers entitled to a declaration of an equitable easement acrossLot 1? [44] In the alternative, Mr. Jackson and the Sauers argue that the Court should grant an equitable easement employing theprinciples of proprietary estoppel. They rely on various leading English decisions and also decisions from our Court of Appeal. [45] These decisions and the principles applicable to a cause of action founded in proprietary estoppel were recently considered byMr. Justice Groves in Sykes v.

Rosebery Parklands Development Society, 2010 BCSC 227: [34] The cause of action alleged in this proceeding is one of proprietary estoppel. The legal principles which apply to a cause of actionfounded in proprietary estoppel are well settled in British Columbia, and are enunciated in three decisions of our Court of Appeal: Zelmerv. Victor Projects Ltd. (1997), (BC CA), 34 B.C.L.R. (3d) 125 (C.A.), Trethewey-Edge Dyking District v. ConiagasRanches Ltd., 2003 BCCA 197, 12 B.C.L.R. (4th) 46, and Erickson v.

Jones, 2008 BCCA 379, 83 B.C.L.R. (4th) 333, which in turn relyon the English Court of Appeal’s decision in Crabb v. Arun District Council, [1976] 1 Ch. 179 (C.A.). [35] In Zelmer, the court made the following comments concerning the general principles governing this area of the law: [48] Based on the foregoing analysis I conclude that, in appropriate circumstances, a cause of action can be based on the doctrine ofproprietary estoppel. [49] The "appropriate circumstances" may arise as stated by Megaw L.J. in Western Fish Products Ltd. v.

Penwith (District Council),[1981] 2 All E.R. 204 at 217, where he interpreted the judgment of Lord Denning in Crabb in the following manner: ... When A to the knowledge of B acts to his detriment in relation to his own land in the expectation, encouraged by B, of acquiring aright over B’s land, such expectation arising from what he has said or done, the court will order B to grant A that right on such terms asmay be just. [36] Erickson is the most recent decision of our Court of Appeal on point, which provides a useful

summary of the test developed inthe earlier cases. Writing for the Court, Chiasson J.A. described the following test as “a starting point” for the Court’s analysis: [53] A starting point is Willmott v. Barber (1880), 15 Ch.

D. 96 (C.A.), wherein Fry J. formulated his oft-quoted statement of the five"probanda" that need be demonstrated by a person seeking to raise a proprietary estoppel: (1) that the plaintiff (the person seeking toraise the estoppel) must have made a mistake as to his legal rights; (2) that he have expended some money or done some other act to hisdetriment on the faith of his mistaken belief; (3) that the defendant (the person sought to be estopped) must know of the existence of hisown right which is inconsistent with the right claimed by the plaintiff; (4) that the defendant know of the plaintiff’s mistaken belief ofhis rights; and (5) that the defendant have encouraged the plaintiff in his expenditure of money or other acts, either directly or byabstaining from asserting his legal right. [37] However, this relatively inflexible test does not fully represent the law of proprietary estoppel as it has developed in BritishColumbia, and Mr.

Justice Chiasson noted that it should not be applied literally. At paragraphs 55 and 56, Chiasson J.A. endorsedNewbury J.A.’s minority reasons for judgment in Trethewey-Edge as properly enunciating the modern and “broad” approach toproprietary estoppel. In Trethewey-Edge, Newbury J.A. stated the following: [64] At the outset, I note that the five elements or "probanda" famously cited by Fry J. in Willmott v. Barber (1880) 15 Ch. D. 96,including in particular the making of a "mistake" by a party as to his or her legal rights, have now been overtaken by a broader and lessliteral approach to proprietary estoppel.

Halsbury's (4th ed., vol. 16) explains this approach as follows: The more recent cases raise the question whether it is essential to find all the five tests literally applicable and satisfied in any particularcase. The real test is said to be whether upon the facts of the particular case the situation has become such that it would be dishonest orunconscionable for the plaintiff, or the person having the right sought to be enforced, to continue to seek to enforce it. The belief onwhich the person seeking protection from equity relies need not relate to an existing right nor to a particular property.

It may be easier toestablish acquiescence where the right in question is equitable only. Where, on the hypothesis that liability has been established, the

question is whether equitable relief should be withheld in the case of a continuing legal wrong, the true test is that the facts must be such that the owner of the legal right has done something beyond mere delay to encourage the wrongdoer to believe that he does not intend to rely on his strict rights, and the wrongdoer must have acted to his prejudice in that belief.

The modern approach is a broad one and the tendency is to reject any classification of equitable estoppel into exclusive and defined categories. (para. 1072; emphasis added by Newbury J.A.) [65] This broader approach is consistent with the judgments of Lord Denning in Crabb v. Arun District Council [1976] 1 Ch. 179 (C.A.) , Moorgate Mercantile Co. Ltd. v. Twitchings

(1976) Q.B. 225 (C.A.), (rev'd on other grounds at [1976] 2 All E.R. 641 (H.L.) , and Amalgamated Investment & Property Co. (in liquidation) v. Texas Commerce International Bank Ltd. [1981] 3 All E.R. 577 (C.A.) ; and of Oliver J. in Taylors Fashions Ltd. v. Liverpool Trustees Co. Ltd. [1982] 1 Q.B. 133 (Ch. Div.) , a case described by one writer as a "watershed in the development of proprietary estoppel." (See Gillett v.

Holt [2000] 3 W.L.R. 815 (C.A.), at 829, quoting Gray, Elements of Land Law (2nd ed., 1993) at 324.) In Taylors Fashions , the Court held that it was not essential that the representor (in this case, the defendants) should have been guilty of fraudulent or unconscionable conduct in permitting the plaintiff to assume he could act as he did; rather, it was enough that in all the circumstances, it would be unconscionable for the representor to go back on the assumption which he had allowed the plaintiff to make.

After reviewing the other decisions mentioned above, Oliver J. noted in a memorable phrase: So here, once again, is the Court of Appeal asserting the broad test of whether in the circumstances the conduct complained of is unconscionable without the necessity of forcing those encumbrances into a Procrustean bed constructed from some unalterable criteria. (at 154) [38] At para. 57 of Erickson , Chiasson J.A. cited the court’s decision in Zelmer as an earlier endorsement of a broad and flexible approach to proprietary estoppel.

In Zelmer , Hinds J.A. had this to say: [36] A few months after the decision in Western Fish Products , Lord Denning affirmed his decision in Crabb , in his judgment in Amalgamated Investment & Property Co. (In Liquidation) v. Texas Commerce International Bank Ltd. , [1981] 3 All E.R. 577 (Eng. C.A.) . At 584 he spoke thus: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment.

It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence; estoppel cannot give rise to a cause of action; estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations.

When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so.

If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands. [37] The foregoing statement is a helpful exposition of the historical formulation of equitable estoppel with its different forms and limitations, its flexibility, the reluctance to classify it into different categories and the underlying principle of what equity entails - that justice be done. [39] After providing this

summary of the law, Chiasson J.A. then applied this “broad approach” to the facts at paras. 58-60, finding that an implied promise by conduct and acquiescence, coupled with detriment, made it inequitable in the circumstances to allow the respondent to assert his rights to the land, raising an equity which established proprietary estoppel. The Sykes decision was upheld on appeal ( 2011 BCCA 15 ) where the principles adopted in Trethewey-Edge and Erickson were confirmed and applied at paras. 44 - 47. [ 46 ] The Court in McCarthy v.

Johnson’s Landing Community Association , 2010 BCSC 986 also recently applied the doctrine of proprietary estoppel. [ 47 ] The judgment of Scarman L.J. in Crabb at 192-199 provides that in assessing any claim for proprietary estoppel, the Court must ask itself three questions: (

a) Is there an equity established? By this, there must be a belief by the plaintiff in the existence of a right created or encouraged by the words or the actions of the defendant such that it would be unconscionable and unjust to allow the defendants to set up their undoubted rights against the claim of the plaintiff; (

b) What is the extent of the equity? The Court must provide for the “minimum equity to do justice to the plaintiff as a right either as an easement or a license upon terms to be agreed”; and (

c) What is the relief appropriate to satisfy the equity? [ 48 ] Dealing with the first issue, it is beyond question in this case that all parties operated on the basis that Mr. Jackson and the Sauers would have a right of access over Lot 1 since they were essentially otherwise landlocked. The history between these parties also clearly indicates that the Sherbinins acted throughout this matter in a way that confirmed to and led Mr. Jackson and the Sauers to believe that they would continue to have a right of access over Lot 1 in perpetuity.

As such, the Sherbinins have implicitly indicated that they would not rely on any strict legal rights that they may have to exclude those parties from that access. Mr. Jackson has been using the new access road for the last 23 years. Similarly, the Sauers have been using the new access road for the last 11 years. [ 49 ] Mr. Jackson and the Sauers were clearly using the new access road across Lot 1 when the Sherbinins purchased their lot in 1992. Mrs. Sauer deposed that around 2006, the Sherbinins told the Sauers that they would “never disallow us access no matter what”. While Mrs.

Sherbinin has no recollection of this discussion, she, of course, was clearly aware of what might be termed “extraordinary” access along the access road in terms of the removal of the cottonwood tree stump and the moving of the Sauer’s modular home.

Mrs. Sherbinin never objected to that access nor any type of access before or after these events. Likewise, before Mr. Jackson’s communication skills began to wear on her, Ms. Sherbinin also facilitated Mr. Jackson’s access along the road, including assisting him in the move of his double-wide modular home. [ 50 ] This conduct of the Sherbinins, by actions and words, has, in turn, resulted in Mr. Jackson and the Sauers expending substantial amounts of money on their own properties. The evidence established that they did not expend any money in developing or maintaining the new access road on Lot 1.

Nevertheless, the authorities support the proposition that expenditures on their own property or otherwise will support the necessary detriment. In Sykes (BCSC), the Court found that expenditures made by the plaintiffs in constructing a dock adjacent to the servient tenement were sufficient to establish detriment: at para. 61. Similarly, expenditures by the plaintiffs in making improvements to their own land which they would not otherwise have spent without access will satisfy the detriment requirement: McCarthy , at paras. 11, 34 .

Finally, that this expenditure will provide a basis for the necessary detriment arises from the fifth and last “probanda” discussed in Willmott , (quoted in para. 45 above) in requiring that the plaintiff establish that he has expended money or done other acts as a result of the encouragement by the plaintiff. [ 51 ] The main contention of the Sherbinins regarding proprietary estoppel arises from the uncontroversial fact that they did not become aware that the registered easement was defective until they received legal advice in 2009. Based on that face, they say that they cannot be estopped.

This argument arises from the third “probanda” from Willmott , at 105, as discussed in Crabb , that the “defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed of the plaintiff. If he does not know of it, he is in the same position as the plaintiff and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights.” [ 52 ] This issue was tackled by Mr.

Justice Oliver in Taylor Fashions (quoted above at para. 45) where the defendant contended that the principle had no application where both parties were acting under a mistake of law as to their legal rights. In that case, the option in question was invalid but both parties, including the defendant, did not suspect that they had any reason to challenge the validity of the option. At 151, Oliver J. held as follows: ... the more recent cases indicate, in my judgment, that the application of the Ramsden v.

Dyson principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment rather than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour. [ 53 ] Finally, at 158, the Court found: It would, in my judgment, be most inequitable that the defendants, having put forward Taylors’ option as a valid option in two documents, under each of which they are the grantors, and having encouraged Olds to incur expenditure and to alter their position irrevocably by taking additional premises on the faith of that supposition, should now be permitted to resile and to assert, as they do, that they are and were all along entitled to frustrate the expectation which they themselves created and that the right which they themselves stated to exist did not, at any material time, have any existence in fact. [ 54 ] As stated above, the more modern, broad and flexible approach to proprietary estoppel, as discussed by Madam Justice Newbury in Trethewey-Edge , and applied by Mr.

Justice Chiasson in Erickson , supports that a so-called “mistake” on the part of the defendant is but one factor in the overall analysis. The court in Erickson saw fit to apply the doctrine of proprietary estoppel in the context of a mutual mistake as to whether an access road was public or not: [42] In my view, the case is completely distinguishable from the present situation. At the core of the judge’s conclusion is a finding that Mr. Loper thought the Ericksons had a right to use the old road because, by statute, it was a public road. There was evidence that Mr.

Erickson also believed he had a right to use the old road. Mr. Erickson testified that prior to purchasing the Erickson property he was shown a copy of the government official’s letter stating the old road was a public road and that he made an inquiry with the Department of Highways and was given the same view. Mr. Loper asked the Ericksons to agree to a different route of access to their property. Access in this circumstance was in the context of a perceived legal right.

Although not expressed in the language of legal rights, there is nothing in the conduct or course of dealings between the parties to suggest they did not consider access in that context. [43] I would not accede to this ground of appeal. ... [44] The issue of detriment is a difficult matter. [45] A simple answer may be that the Ericksons paid money for the construction of the new road and its maintenance.

It is contended that the latter merely relates to their use of the new road and is not a detriment, but there is authority to support the proposition that such payments can ground a proprietary estoppel: see Lord Kingsdown in his dissenting speech in Ramsden v. Dyson (1866), L.R. 1 H.L. 129 at 170, which was quoted by Scarman L.J. in Crabb v.

Arun District Council , [1976] 1 Ch. 179 at 194 (C.A.) : The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.

There is no suggestion in the authorities that these comments are limited to the relationship of landlord and tenant. [ 55 ] This approach was, in turn, applied by the Court in Sykes where there was a mutual misunderstanding as to whether the

easement provided for access for moorage purposes. Similarly, in McCarthy , the defendant was not allowed to resile from its position regarding access over a road, despite the fact that both parties were under the mistaken belief that the road was a public road when, in fact, it was not. [ 56 ] The Sherbinins principally rely on the decision of Hollaus v. Gill , 2008 BCSC 825 , on the issue of detriment. In that case, the petitioner and the respondent were owners of adjacent land in Oliver, British Columbia.

When the petitioner acquired her lot, the properties were separated by a dirt road that was on the respondent’s land. The petitioner used the road for approximately nine years, from 1998 to 2007. The respondent deposed that he was not aware as to the exact location of the road and only determined that the road was on his property after a survey in March 2008. He denied any agreement to give the petitioner access and eventually had plans to construct a fence on the property line, which would have terminated the petitioner’s access.

After discussion of the Willmott probanda and the decision of the Court in Trethewey-Edge , Mr. Justice Brooke concluded: [14] The circumstances here are that the petitioner and the respondent, in a neighbourly way, made use of a road which suited their convenience without concern for the legal niceties, including the location of the property line. It was not until a dispute between the parties arose that the respondent obtained a survey and the petitioner asserted an equitable interest.

I cannot find on the facts before me that there has been acquiescence on the part of the respondent which is tantamount to fraud. Nor can I find that the respondent, as the owner of the right to exclusive possession, has done anything beyond mere delay to encourage the belief that he does not intend to rely on his strict right. Nor do I find that the respondent here has acted to the petitioner’s prejudice if that were her belief.

In the result, I cannot find that the petitioner has made out proprietary or promissory estoppel and the petition must be dismissed. [ 57 ] With respect, I do not see that the Hollaus decision assists the Sherbinins in this case. As stated by Brooke J., there was “mere delay” on the part of the respondent in encouraging belief by the petitioner that he did not intend to rely on his strict rights. In this case, there has been active involvement by the Sherbinins in allowing and accommodating access through their property to Lot 2 and Lot A.

Further, the Court in Hollaus did not find any prejudice to the petitioner because, importantly, the petitioner had access over her own property in the event that she was no longer allowed to use the dirt road. This is clearly distinguishable from this case where, as I have found, there is no other land access to Lot 2 and Lot A other than over Lot 1. [ 58 ] Having considered all of the circumstances of this case, I conclude that it would be unconscionable and unjust to deny Mr. Jackson and the Sauers a right of access over the road to their properties at this time. Mr.

Jackson and the Sauers have been exercising those rights for many years, if not decades. When the Sherbinins purchased their property in 1992, they were well aware that these rights of access were being exercised. Over the ensuing years, they clearly allowed this access and, at times, assisted Mr. Jackson and the Sauers in exercising that access. As a result of the conduct on the part of the Sherbinins, both Mr. Jackson and the Sauers have acted to their detriment in expending significant amounts of money in improving their properties.

Finally, a denial of access at this time would leave these lots accessible only by water, a circumstance which has only recently been raised and which I believe was not in the reasonable contemplation of any of the parties involved in the development of these lots. [ 59 ] The Sherbinins also argue that the equitable relief sought by Mr. Jackson and the Sauers is not available to them by reason of the fact that they do not come to the Court with “clean hands”. The Sherbinins cite various abuses of the rights of access on the part of Mr.

Jackson and the Sauers and the manner of certain communications between the parties, principally from Mr. Jackson. [ 60 ] While no authority was advanced in support of this proposition, I do not accept that these allegations, if true, support such a contention. Any “abuses” with respect to the rights of access can be said to arise by reason of the brevity of the registered easement, in the sense that the document did not clearly specify the rights accruing to the Sherbinins arising from the exercise of these access rights and the corresponding rights and obligations of Mr.

Jackson and the Sauers arising from their access over Lot 1. In any event, I am not aware that the Sherbinins ever demanded payment of any maintenance costs or expenses relating to the use of or damage to the access road. In large part, as Ms. Sherbinin attested, she did not pursue these matters in her efforts to be a good neighbour. Any questionable behaviour relating to the manner of access or lack of contribution on the part of Mr. Jackson and the Sauers could only best be described as impolite and un-neighbourly. The same can be said for the manner of communications employed by Mr.

Jackson. [ 61 ] In the circumstances, a claim for proprietary estoppel is established. [ 62 ] I must now turn to the second and third questions which concern the extent of the right of access and the relief required to satisfy that right. From a practical perspective, these two questions can be answered at the same time. [ 63 ] In Trethewey-Edge , Madam Justice Newbury discussed the question of what remedy is appropriate at paras. 75-83.

At para. 84, Newbury J.A. stated: [84] I have mentioned these cases to emphasize the ability of the courts to fashion a remedy that will be appropriate but which also comports with the "minimum equity" doctrine: see Megarry and Wade, The Law of Real Property (6th ed., 2000) at §13-021. In this case and in this jurisdiction, where registration is all-important, it cannot be said that the trial judge erred in concluding that a registerable easement was an appropriate remedy.

Given the fact that the District is a body corporate which was formed for the benefit of all landowners and their successors and assigns and which will continue on in perpetuity, I am satisfied that a licence, even an irrevocable one, would not have been sufficient to do justice between the parties.

Such a remedy will not, however, be appropriate in every case, in the sense of being necessary to do justice between the parties. [ 64 ] Similarly, Madam Justice Levine stated in Trethewey-Edge : [56] In my view, a licence as proposed by the appellants, which cannot be registered, is not binding on subsequent owners of the Trethewey/Coniagas lands, and is revocable on reasonable notice, does not satisfy the equity established by the District. The “extent of the equity” is permanent access to carry out its responsibilities. The relief must likewise be permanent.

In my view, ownership of the pumping facilities and a right of way over the dykes is the appropriate way to satisfy that requirement. [ 65 ] In Erickson v. Jones , 2004 BCSC 169 , Mr. Justice Meiklem held:

[56] The incentive for both parties should be the desirability of neighbours achieving a full and fair easement agreement, given my finding that the plaintiffs are entitled to an easement that will assure access to their land for themselves and their invitees, and will bind Mr. Jones and his successors in title; that is, it will be in registerable form. If that incentive proves insufficient, the court will intervene and impose its own view of fair terms.

This aspect of the decision was upheld on appeal: para. 62 - 68. [ 66 ] Similarly, a registerable easement was considered the appropriate remedy in McCarthy (paras. 37-41 ) and Sykes (BCSC, paras. 78-82). [ 67 ] In this case, I am satisfied that the appropriate remedy is to provide for a registerable easement against Lot 1 restricted to the existing access road. Importantly, this remedy is what I consider to be the “minimum equity” necessary to do justice to Mr. Jackson and the Sauers. It is also in accordance with the expectations of the parties, including those of Mr.

Jackson and the Sauers. [ 68 ] I accept that a registerable easement, as opposed to a licence, is more appropriate in the circumstances, given that it will constitute a right that will run with the land and be binding on future owners of the three lots. As such, it will clearly and definitively outline the rights and obligations of all parties concerned in terms of their future dealings with each other. [ 69 ] I turn now to how that remedy is to be achieved. As stated above, Mr. Jackson and the Sauers have proposed a document, described in proposed

Schedule A, which more clearly delineates what one might expect to see in an easement agreement. Nevertheless, as I stated during the hearing, my initial reaction to the proposed

Schedule A is that it contains provisions that are clearly favourable to Mr. Jackson and the Sauers as the proposed grantees. To that extent, I find the document particularly one-sided and not balanced in the sense of providing corresponding obligations on them as grantees and also providing for the rights and obligations of the Sherbinins as owners of Lot 1. For example, the document does not provide for any obligations on the part of the grantees in terms of contribution to the cost of maintaining the road access through Lot 1.

Nor does it provide for the payment of any damage caused to Lot 1 by reason of the exercising of access. Finally, it does not address the concerns of the Sherbinins in terms of not allowing for commercial traffic in what is clearly a residential area. [ 70 ] Accordingly, consistent with the relief granted by this Court in Erickson , the following relief is granted:

(1) This court declares and orders that Stanley Jackson, being the owner of Lot 2, District Lot 306, Kootenay District, Plan 731B, Parcel Identifier: 011-463-856 and Randy John Sauer and Frances Ann Sauer, being the owners of Lot A, District Lot 306, Kootenay District, Plan NEP65159, Parcel Identifier: 024-592-617 are each entitled to a registerable easement against Lot 1, District Lot 306, Kootenay District, Plan 731B Except

Part Included in Plan 18851, Parcel Identifier: 008-820-937.

(2) The registerable easement shall be a width of 12 feet and shall follow the path of the existing road across the southern end of Lot 1. In the event that the parties are unable to agree on the precise boundaries of the access road, the parties will arrange for a survey to be completed, with the cost to be borne equally by Mr. Jackson and the Sauers.

(3) The parties shall negotiate a form of easement agreement which agreement will address, without limitation, the question of responsibility for maintenance of the road, the governing standards of maintenance, payment of costs of maintenance and damage and a mechanism for resolving future disputes about maintenance and other matters.

(4) If the parties are unable to agree on a form of easement agreement within three months of today’s date, they may apply to this court to settle the matter of the form of the easement. I will be seized of the matter. In the event of such an application, both parties are to provide their proposed form of easement agreement, together with a black-lined copy which will indicate the points of disagreement.

(5) Pending the registration of the easement: (

a) the Sherbinins and their servants, agents and assigns are restrained from obstructing, hindering or interfering with the use of the access road by Mr. Jackson, the Sauers, or their invitees; (

b) Mr. Jackson and the Sauers shall maintain the access road over Lot 1 at their own expense and indemnify the Sherbinins for any damage or loss caused to Lot 1 outside the easement area (including trees and shrubbery adjacent to the access road) arising from their use of the access road. [ 71 ] Finally, there is the matter of costs. In light of the mixed success in terms of the relief sought by all three parties in this case, I am not inclined to award costs to any party. However, the parties are at liberty to address this issue on the return of the application to settle the terms of the easement. “Fitzpatrick J.”