JOHN WHITE v. DERRICK WHITE APPLICANTS, 2010 NLTD 208

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : White v. Bennett , 2010 NLTD(G) 208 Date : 201012 22 Docket : 201006G0130 BETWEEN: JOHN WHITE AND DERRICK WHITE APPLICANTS AND: LISA BENNETT RESPONDENT ___________________________________________________________________ Before: The Honourable Mr. Justice Garrett A. Handrigan ___________________________________________________________________ Place of Hearing: Grand Bank, Newfoundland and Labrador Date(

s) of Hearing: December 15, 2010

Summary: Real Property – Ownership of Land – Easements by Prescription – Whether Access Road used with Permission or as of Right – Other Considerations – Costs. John and Derrick White own land in Molliers, NL. They use an access road, known locally as “Bennett’s Road”, to get to the property. They applied for a declaration that they have a prescriptive easement over the road, and can use it as of right, without permission of the Bennett family who built and own it; and pass that right onto their successors in title. Held: Application dismissed, with costs.

The applicants failed to show they have an easement over Bennett’s Road. They use the road with permission, under a revocable licence from the Bennetts which they cannot transfer. Appearances: Cindy Picco Counsel for the Applicants. Franklin Layte Counsel for the Respondent Authorities Cited:

CASES CONSIDERED: Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 (NLDC) ; Murray v. Sullivan , (1981), 35 Nfld. & P.E.I.R. 132, 99 A.P.R. 132 (NLTD) . REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] John White and Derrick White are brothers. They own land in Molliers, a resettled community about ten kilometres west of Grand Bank, NL. Their land is adjacent to land belonging to John Charles Bennett, Jr. Mr.

Bennett, who suffers from moderate dementia, is represented generally in his personal and business affairs, and in these proceedings in particular, by his daughter, Lisa Rideout, who was appointed his guardian in February, 2010. The White property is separated from the public road by land belonging to Mr. Bennett and access to it is over a local road, known as “Bennett’s Road”. [ 2 ] John White has a house on his land and he wants to sell it. He advised Ms.

Rideout that he was selling his property and she informed him that his buyers would not get access to the property over Bennett’s Road but would have to provide their own access, which may cost as much as $12,000 to construct. The Whites claim they have a prescriptive easement over Bennett’s Road and applied to this Court for an order declaring their right to use it and for a declaration that their right of user also enures to their successors in title. The Issue [ 3 ] Do the Whites have a prescriptive easement over Bennett’s Road?

The Law [ 4 ] While, the parties agree on the law which applies to this application, I will review it briefly to provide the context for the discussion which follows. [ 5 ] Prescriptive easements are established by "user as of right", which is practiced nec vi ("without violence"), nec clam ("not secretly") and nec precario ("without permission") [1] . "User as of right" is the antithesis of permitted user in the discussion of prescriptive easements. Express permission defeats prescriptive easements.

Prescriptive easements will be established if the owner of the servient tenement acquiesces in the use of his property. [ 6 ] Acquiescence is silent or passive assent or submission, or submission with apparent consent. It is to be distinguished from avowed or express consent on the one hand, and from opposition or open discontent on the other. It might be appropriately called "quiet satisfaction".

The servient owner cannot be said to "acquiesce" in the dominant owner's use if he has given the dominant owner express permission, the dominant owner has used force to obtain or to sustain the use or the servient owner has not known that the dominant owner was using his property. [ 7 ] Hickman, C.J. discussed the formation of prescriptive easements in Murray v. Sullivan [2] . In that case the parties lived on adjoining properties in Pouch Cove, NL. The plaintiff Murray also owned a garden to the rear of his residential property, which was separated from his residence by land belonging to the defendant Sullivan.

The plaintiff’s son applied to the Pouch Cove Town Council for a permit to build a house on his father’s garden property, indicating that he would get access to the house over the defendant’s land. The defendant disagreed so Mr.

Murray applied to this Court for an order declaring that he had an easement across the defendant’s property to his garden. [ 8 ] Hickman, C.J. dismissed the action, employing his inimitable eloquence to explain why: “It would constitute an unprecedented extension of the law to interpret neighbourly acts allowing free passage across the land of the servient owner as constituting the ingredients of acquiescence necessary to establish a common law prescriptive easement. In the instant case the plaintiff has fallen far short of proving that he has an easement over the defendant's property.

On the contrary, the actions of the defendant and her late husband, Henry Sullivan are consistent only with their assertion of an absolute right of ownership of the property while on infrequent occasions giving the defendant or his predecessor in title the right to cross the land for a very prescribed purpose” [3] . [ 9 ] The parties also agree that the only issue for me to consider is whether the Whites used Bennett’s Road “as of right” or “by permission”.

If I find the former, they also agree that the Whites have an easement over it; and if I find the latter they do not have an easement; and would only have a licence which the Bennetts could revoke at any time. Analysis Background [ 10 ] Cadastral mapping from the Crown Lands Office of the provincial government shows that the White property is surrounded by land claimed by the Bennett family. For example, Map IM4-283 shows that Crown grants were issued to John Bennett (Volume 93, Folio 20), Robert Bennett (Volume 53, Folio 115) and Benjamin Bennett (Volume 62, Folio 232) for land to the north and east of the

White property. The mapping is consistent with the history of their property which the applicants provided in their Originating Application. [ 11 ] John White and Derrick White say their father, George White, conveyed their land to them in October, 2000, just months before he died on January 29, 2001. George White bought the land from George Penwell on March 7, 1978. George Penwell’s father, Charles, left it to his son George when he died in 1970. Meanwhile Charles Penwell had taken the land as part of his share of assets of his business partnership with Harold Warren, which they dissolved in 1960.

The Penwell-Warren partnership purchased the property from a Robert Bennett in 1955. [ 12 ] A timeline for the White property may help in understanding the several transfers which took place in the last fifty years: [ 13 ] Lisa Rideout generally accepts the preceding chain of title for the White property, at least in later years but she adds the following about Harold Warren’s involvement: Robert Bennett, Jr., her great-uncle, was the first owner of the property. After he died, his second wife, Alice Bonnell, sold part of the White land to Harold Warren, sometime in the 1950’s. Ms.

Rideout indicates that it was the portion of the White property that lies immediately to the north/northeast of the land shown on the diagrams in the file as belonging to Alec Bennett. [ 14 ] She also says that it was her second cousin, Charles Bennett, Sr., and not Robert Bennett, Jr., who sold the remainder of the land to Harold Warren. This portion of the White property is generally L-shaped and lies to the east/northeast of the land shown on the diagrams in the file as belonging to Alec Bennett.

And finally, that when Charles Penwell died in 1970 and his son, George Penwell, acquired the property, George Penwell tried to sell both parcels of land (i.e. all the White property which Harold Warren had acquired from Robert Bennett, Jr. and Charles Bennett, Jr.) back to Charles Bennett, Sr. but the latter refused, so George Penwell sold it to George White, who transferred it to his sons, the applicants, John and Derrick White. [ 15 ] John White supported the Originating Application with an affidavit.

He claims that their predecessors in title – the Warren- Penwell partnership, Charles Penwell, George Penwell and George White – always used Bennett’s Road to get access to their property. John White does not say how the partnership used the land, but he does say that Charles Penwell had a summer house on it which he used from 1960, when he acquired the property until he died in 1970.

He also claims that George White built a “year round” residence on the land when he retired in 1978 and that he used the road to get access to the property until he died in 2001; and that George White’s family and friends also used the road for access during the same time. [ 16 ] John White claims that their father, George White, and Ms. Rideout’s father, John C. Bennett maintained the road jointly, for their mutual benefit, putting “many loads of mud on the road between them over the years to build the road up to the condition it is in today” [4] .

He indicates that road maintenance was an ongoing exercise for the two men; each of them paid for the materials and Alex Bennett, John White and Derrick White helped their fathers by spreading the “mud” they purchased for the road, mainly from Clyde L. Douglas of Fortune, NL.

He says that their father, George White, always contributed to the cost if John Bennett used his own tractor to keep the road open in winter and that George White sometimes paid Bennett’s Construction himself to clear the snow after John Bennett sold his tractor. [ 17 ] There are two gates on Bennett’s Road: one about a 100’ north of the White property providing access to the general Bennett property; and the other where Bennett’s Road joins the public road, which is actually the old Burin Peninsula Highway.

John White claims that he and John Bennett agreed to put a locked gate at the highway to keep out trespassers who were parking in the area at night and spreading garbage about. He does not say when the gate was erected but implies it was about ten years ago. He does say that the White and Bennett families have always had a key for the gate and have passed through the gate freely since it was put there and have otherwise used the road without restriction. [ 18 ] George Penwell filed an affidavit to support the application.

He confirmed most of the title history of the property which John White related and added the following comments [5] : • “I would have also conveyed to…[George White] the right to make use of the road to access the property”. • “I didn’t ask John C. Bennett or any of the Bennett family if George White could use the road when I sold it to him.

I acted on the belief I could give him access rights my family and I exercised over the years”. • “George White made use of the road…and he made no complaint to me about restrictions on his access…”. • “I always thought of it as Bennett’s Road, which our family could use to access our property which right I could and intended to pass along to George White”. [ 19 ] Lisa Rideout disputes most of what John White and George Penwell say in their affidavits about road usage, maintenance and mutual understandings about rights of user.

Let me summarize the salient points of the affidavit she filed on November 16, 2010, when she responded to the Originating Application: • The Bennett family built “Bennett’s Road” as a private road. • The Bennett family granted verbal permission to the successive owners of the White property – Harold Warren, Charles Penwell, George White and John White – to use the access road, and each of those owners sought and received permission.

• John Bennett was primarily responsible for maintaining the road and keeping it up. • George White sometimes helped maintain the road but his or his sons’ contributions were exceptional, not usual ones. • John Bennett erected the gate at the highway in the 1970’s; with a sign posted on it declaring it to be private property and all users of the road had prior permission. • John White advised the Bennett family when he or family members were going to use the road and John Bennett gave him a key for ease of access. • Latterly, John White changed the lock on the gate with the permission of the Bennett family because John Bennett, who suffers from dementia, lost his key.

Discussion [ 20 ] To be entitled to a prescriptive easement over Bennett’s Road the applicants must prove, on a balance of probabilities, that they used the road as of right and not with the permission of the Bennett family. They have not met the onus on them. Let me explain. [ 21 ] The applicants agree that the road is known as “Bennett’s Road”; that the Bennett family built the road; and that the Bennetts own it.

As to the first proposition, it is called “Bennett’s Road” whenever it is referred to in the pleadings, and apparently known universally by the same name; and as to the second and third propositions, John White says as much in the affidavit he filed with the Originating Application: “…the history of the road is that it was built by Bennetts who owned a great deal of land and had their home in Molliers” [6] . [ 22 ] Bennett’s Road is also a private road.

Lisa Rideout claims it is in her affidavit and a strong inference to that effect can be drawn from the rest of the materials filed, including affidavits from John White, Derrick White and George Penwell.

But there is other more demonstrative proof of that fact: • Access to the road was secured by a locked gate, and it may have been marked “private property”. • It is referred to as “a private access road of Alex Bennett [John Charles Bennett’s father, Lisa Rideout’s grandfather and John Charles Bennett’s predecessor in title]” in the deed of conveyance from George Penwell to George White dated March 7, 1978. • It is referred to as a “Private Access Road” both on the plan and in the written description attached to the deed of conveyance from George White to John White dated October 14, 2000. [ 23 ] So, the question which the preceding begs to be asked is this: How did a private access road, belonging to and built by the Bennett family on their own land become an access over which the owners of the White property have a right-of-way which the applicants can claim against all challengers, including the Bennetts, and pass on to their successors in title?

The applicants say that the road changed its character by the following: • Use for access to the White property by its successive owners. • Maintenance and upkeep of the road by those successive owners. • No overt challenges to their use of the road from the Bennett family. [ 24 ] Each of these points, though valid in its own right, is as consistent with permitted use of the road, as they are with user as of right. Use of the road, without challenge, may indicate tacit approval.

Maintenance and upkeep are mutually beneficial to the users of the road, whether they have permission or not, as is a locked gate to keep out trespassers. [ 25 ] The applicants have not put forward any positive actions that they or their predecessors in title to the property have done that indicate they were acting as of right. In fact, their actions indicate the contrary. I note the following: John White says that he notified Lisa Rideout that he was selling the property to Andre Le Tournel and Sylvia Thornhill in August, 2010. Why did Mr.

White call Lisa Rideout and tell her that he was selling his property if he had a right-of-way in the road that he could pass along to his buyers? [7] It may simply have been a courtesy call but he also says that he called Ms. Rideout back “five days later…hoping for an agreement…” [8] . It seems to me that Mr. White called Ms. Rideout to get her permission to sell a right to use the road to his purchasers. [ 26 ] Similarly, Ms.

Rideout says that “…this past summer 2010, John Bennett advised me that some of his family members had travelled home for his daughter’s, Denise’s [9] wedding and would be staying at his father’s house on the White’s property and thus would obviously be using the road while they were home” [10] . The applicants did not challenge this statement. It too causes me to ask why Mr. White would inform Ms. Rideout about who was going to be using the White property, when and for what purpose? [ 27 ] Mr. White’s contacts with Ms.

Rideout in the instances related above were not assertions of the right of independent user of the road but are more like subordinate actions that bespeak the deferential attitude of one who needs permission or affirmation to do something. [ 28 ] It might be argued that George Penwell exhibited a different attitude toward the road in his dealings with the land, as his affidavit appears to indicate. However, I note as well that Mr.

Penwell identified the road as “a private access road of Alex Bennett” when he conveyed the property to George White dated March 7, 1978. [ 29 ] Overall, the applicants have failed to show they have an easement over Bennett’s Road which they can pass on to their successors in title. They use the road with permission, under a revocable licence from the Bennetts which they cannot transfer. I dismiss their application.

Costs [ 30 ] There is no reason to depart from the usual rule that costs follow the cause. Thus, I order John White and Derrick White to pay Lisa Rideout’s cost of the application, to be taxed on a party-and-party basis.

Summary and Disposition [ 31 ] John and Derrick White own land in Molliers, NL. They use an access road, known locally as “Bennett’s Road”, to get to the property. They applied for a declaration that they have a prescriptive easement over the road, and can use it as of right, without permission of the Bennett family who built and own it; and pass that right onto their successors in title. [ 32 ] The court dismissed the application, with costs. The applicants failed to show they have an easement over Bennett’s Road.

They use the road with permission, under a revocable licence from the Bennetts which they cannot transfer. Order [ 33 ] In the result, I order that: 1. The Originating Application is dismissed. 2. John White and Derrick White pay Lisa Rideout’s costs, to be taxed on a party-and-party basis. _____________________________ Garrett A. Handrigan Justice