Oliver Watton v. Lillian Watton, 2019 NLSC 81

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Watton v. Pike, 2019 NLSC 81 Date : April 8, 2019 Docket : 201601G1693 Between: Oliver Watton and Lillian Watton PlaintiffS And: Christian Pike First Defendant And: Jamie Pike Second Defendant Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 20 and 21, 2019

Summary: The Wattons filed a quieting of titles application with respect to their homestead property and a historical right of way. An adverse claim was filed disputing the size of the claimed right of way. The Defendants asserted that the correct boundaries and size of the right of way was as agreed in a document signed by the Wattons in October of 2017; and not as claimed in their application. HELD : The Wattons’ homestead property shall be quieted subject to and together with the right of way agreed to in a document signed in October of 2017.

Appearances: Daniel Bennett Appearing on behalf of the Plaintiffs Sean Montague Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Kennedy v. Watton , 2014 NLTD(G) 62; Watton v. Pike , 2018 NLSC 117 ; Franklyn v. St. John’s (City) , 2012 NLCA 48 ; Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 (Nfld. D.C.) . STATUTES CONSIDERED: Quieting of Titles Act , R.S.N.L. 1990 c. Q-3 . REASONS FOR JUDGMENT Marshall, J. : INTRODUCTION [ 1 ] In March of 2016, the Plaintiffs, Oliver and Lillian Watton, filed an application pursuant to the Quieting of Titles Act , R.S.N.L. 1990 c.

Q-3 , seeking an investigation and determination of title to lands located at Red Fern Lane, Conception Bay South, Newfoundland and Labrador. [ 2 ] The lands subject to the Wattons’ quieting application consist of two parcels. The first parcel is property upon which the Wattons have lived since 1963 (the “Wattons’ homestead property”). The second parcel is a right of way (the “claimed right of way”) which crosses over land to the east of the Wattons’ homestead property, and which provides access to the roadway – Levi’s Place.

That land to the east was owned by Christian Pike when the action was commenced, but is now owned by his father, Jamie Pike (the “Pikes’ property”). [ 3 ] The Wattons’ quieting application initially claimed ownership of the Wattons’ homestead property and the claimed right of way. However, by the time of trial, the Wattons claimed only a right of use to the claimed right of way, on the basis of their having had a historical prescriptive easement over the Pikes’ property.

At trial, the Wattons still maintained their claim of ownership of the Wattons’ homestead property. [ 4 ] Christian Pike had filed an adverse claim to the quieting application primarily disputing the Wattons’ claim to the right of way. Specifically, the adverse claim asserted that the Wattons’ quieting of titles application claimed a much larger right of way than historically existed, and over which the Wattons did not have exclusive ownership. [ 5 ] This matter proceeded to trial after a protracted procedural history.

Jamie Pike was added as a party, and the originating application was converted to a statement of claim, and a statement of defence was filed.

[ 6 ] An issue to be determined at trial was the quieting application for the Wattons’ homestead property.

However, the primary issue for trial became whether the survey description of the Wattons’ claimed right of way accurately reflected the boundaries and dimensions of the historical right of way, for which the Wattons claimed a prescriptive easement. [ 7 ] The Defendants took the position that the Wattons’ right of use should be restricted to the right of way described in a right of way agreement executed by the Wattons in October of 2017 (the “agreed right of way”). [ 8 ] The agreed right of way is described as “Red Fern Lane” in the survey prepared June 13, 2017 by surveyor Paul Bennett.

It runs flush to the northern boundary and fenceline of property belonging to Gary and Marilyn Collins (the “Collins’ property”). The Collins’ property is south of the Pikes’ property, the Wattons’ homestead property, and other property to the west of the Wattons’ homestead property. The agreed right of way runs in between the Collins’ property, and these other properties. It is about 15 feet in diameter, and it slightly encroaches on a portion of the Wattons’ homestead property.

The quieting application for the Wattons’ homestead property [ 9 ] With respect to the quieting of titles application, on April 20, 2016 Justice Sheahan ordered publication of the notice of the quieting of titles application. He required that the notice be served on the Crown, and the adjacent landholders. The Plaintiffs filed documentation confirming that they had complied with the service requirements of Justice Sheahan’s order.

In response to the publication notice, the only adverse claim came from Christian Pike. [ 10 ] The survey plan of the Wattons’ homestead property was prepared by surveyor Paul Bennett, and is dated July 10, 2015. Mr. Bennett identifies the Wattons’ homestead property as 8 Red Fern Lane, Long Pong, Conception Bay South. [ 11 ] The Wattons’ homestead property is depicted on the 2015 Bennett survey plan as being bounded on the east by the Pikes’ property, on the north by land belonging to Percy Greenslade and William Greenslade, on the west by property claimed by Frederick Kennedy, and on the south by Red Fern Lane.

The plan also depicts the Collins’ property to the south of Red Fern Lane. [ 12 ] The history of the Wattons’ homestead property is detailed in the quieting of titles application, and is supported by documentary and affidavit evidence, and the evidence at trial. The history is not disputed by the parties. [ 13 ] There is no Crown grant for the Wattons’ homestead property. Rather, the title history commences with the last will and testament of William George Kennedy dated August 4, 1947. Frederick Kennedy, Lillian Watton and the Pikes are all related to William George Kennedy.

William George Kennedy died in October, 1947. [ 14 ] The Wattons’ homestead property, the Pikes’ property and Frederick Kennedy’s property are contained within what was William George Kennedy’s property. The claimed right of way is contained within the Pikes’ property. The agreed right of way is contained in what was William George Kennedy’s property. [ 15 ] Letters of probate to the will of William George Kennedy were granted to Henry Baird on August 22, 1975. A deed of assent to the bequest in the will was executed in August of 1975.

The relevant portion of William George Kennedy’s will states, as follows: “I make disposition of my property in the following manner: (Lot

i) This is the piece of land on which I have lived and on which the family Dwelling House stands. The West half of this land is the property of my nephew, William Robt. Kennedy. My own half of this land – that is to say the East half – bounded on the East by the local road; on the South by the land of Peter Rideout; and on the North by the property of Jacob Kennedy, I GIVE and BEQUEATH to my wife, Elizabeth Kennedy, until her death, when it shall become the property of Frederick Roy Kennedy, son of William Robt. Kennedy. It is to be understood that my nephew, William Robt.

Kennedy, shall have a right-of-way leading from the local road across my half of this property to his own land. My own half of the Dwelling House, standing on Lot i, I GIVE and BEQUEATH to my wife, Elizabeth Kennedy, until her death when it will pass to the ownership of Frederick Roy Kennedy.” [ 16 ] In accordance with Mr.

Watton’s evidence with respect to the above description of “Lot i”, the property that was Jacob Kennedy’s is now owned by Percy Greenslade, the local road is Levi’s Place, and Peter Rideout’s property is now the Collins’ Property. [ 17 ] Further, according to the evidence, the dwelling house referred to in William George Kennedy’s will, was the Kennedy family home which was on what is now the Pikes’ property. He lived in the Kennedy family home with his wife, who was Elizabeth Kennedy, his nephew, who was William Robert Kennedy, and his nephew’s wife, who was Helen Kennedy.

As stated, William George died in 1947. [ 18 ] Elizabeth Kennedy remained in the Kennedy family home, on what is now the Pikes’ property, until she died in 1953. After that, William Robert Kennedy and Helen Kennedy remained in the Kennedy family home, and raised their five children. Lillian Watton was one of their five children, as was Frederick Kennedy. William Robert Kennedy died in 1988. His wife, Helen Kennedy, then remained in the Kennedy family home until 1996. She ultimately died in 2000.

The Kennedy family home was torn down around that time. [ 19 ] In accordance with the quieting of titles application, in addition to living in the Kennedy family home, William Robert Kennedy occupied and possessed a larger parcel of land. This larger parcel of land included what is now the Pikes’ property, the Wattons’ homestead property, the property to the west of the Wattons’ homestead property, and the claimed right of way.

[ 20 ] According to the affidavits of Percy Greenslade and Frederick Baird submitted with the quieting application, William Robert and Helen Kennedy maintained fencing around this larger parcel of land. The affidavit evidence also suggested that William Robert and Helen Kennedy kept the larger parcel cleared, and they farmed the land. Indeed, evidence of continuous, open, exclusive and notorious acts of possession were apparent from the mid 1950s. [ 21 ] Percy Greenslade also testified at trial. Mr.

Greenslade grew up and has lived for 53 years on the property to the north of what had been William George Kennedy’s property. His property had been previously owned by Jacob Kennedy; Jacob Kennedy was referenced in William George Kennedy’s will. He confirmed that the Wattons built their house over 53 years ago. Mr. Greenslade also confirmed that since he was a boy, a fence had been on the northern boundary of the Baird property (which is now the Collins’ property).

He recalled driving at the age of 12, and knocking down a portion of that fence. [ 22 ] The quieting of titles application, and the evidence at trial, confirmed that the Wattons built their matrimonial home on the Wattons’ homestead property around 1963, and that they have since lived on that property continuously, openly, exclusively and notoriously. [ 23 ] The Wattons’ homestead property was conveyed to Oliver Watton on April 18, 1962, from William Robert Kennedy for the sum of $300. The deed of conveyance was registered on May 2, 1962 at the Registry of Deeds.

That deed stated, as follows: THIS INDENTURE made at Long Pond in the Province of Newfoundland this 18th day of April, Anno Domini One thousand nine hundred and Sixty-two BETWEEN William Robert Kennedy of Long Pond aforesaid, (hereinafter called the Vendor) of the one part AND Oliver Watton of the same place, (hereinafter called the Purchaser) of the other part WITNESSETH that for and in consideration of the sum of Three hundred dollars ($300.00) paid by the Purchaser to the Vendor on or before the execution of these presents (the receipt whereof is hereby acknowledged) the Vendor as Beneficial Owner hereby SELLS ASSIGNS AND CONVEYS unto the Purchaser ALL THAT piece or parcel of land situate off Kennedy’s Road at Long Pond aforesaid, abutted and bounded as follows, that is to say: On the East by land of William Robert Kennedy by which it measures Fifty-five (55) feet more or less; On the North by land of Jacob Kennedy by which it measures One hundred (100) feet more or less; On the West by other land of William Robert Kennedy by which it measures Fifty-five (55) feet more or less and on the South by a right-of-way measuring approximately Fifteen (15) feet in width and land of one Baird by which it measures One hundred (100) feet more or less TOGETHER WITH a right-of-way leading from Kennedy’s Road aforesaid in a Westerly direction to the land hereinbefore described TO HAVE and TO HOLD the same unto the Purchaser FOREVER .

IN WITNESS WHEREOF the said parties to these presents have hereunto their hands and seals subscribed and set the day and year first before written. SIGNED SEALED AND DELIVERED - By William Robert Kennedy in the presence of: - Ralph E. Fagan (signed) William Robert Kennedy (signed) [ 24 ] The above 1962 deed of conveyance described the Wattons’ homestead property as being about 55 feet, by about 100 feet.

It also described a right of way as being about 15 feet wide to the south of the Wattons’ homestead property, and “leading from Kennedy’s Road aforesaid in a Westerly direction to the land hereinbefore described”. [ 25 ] Although the 1962 deed for the Wattons’ homestead property came from William Robert Kennedy, at trial the Defendants took the position that the Wattons’ homestead property had actually belonged to Frederick Kennedy, in accordance with William George Kennedy’s will. To support this position the Defendants referred to the decision of Justice Adams in Kennedy v.

Watton , 2014 NLTD(G) 62. [ 26 ] In Kennedy v. Watton , Frederick Kennedy had sought a declaration that he was the owner of the “Lot i” described in William George Kennedy’s will. In the absence of a quieting of titles application, Justice Adams determined that it was not an appropriate action in which to declare the boundaries of that property; however he declared that Frederick Kennedy was indeed the sole owner of William George Kennedy’s right, title and interest in “Lot i”. Mr.

Watton does not agree that Frederick Kennedy was the owner of “Lot i”. [ 27 ] The Defendants’ Counsel took the position that Justice Adams’ decision suggested that the Wattons’ homestead property was included in “Lot i”, and therefore the 1962 deed of the Wattons’ homestead property to Oliver Watton should have come from Frederick Kennedy, as opposed to William Robert Kennedy. [ 28 ] By contrast, the Wattons’ Counsel suggested that Justice Adams’ decision pertained only to what is now the Pikes’ property. Frederick Kennedy had conveyed the Pikes’ property to Christian Pike on or about the Fall of 2014.

He also referred to Justice Adams’ decision, at paragraph 59, in which he indicated that there was “some evidence that the Wattons occupied the land on which their house stands immediately behind Frederick’s land for some years prior to 1975, perhaps as early as 1962”. [ 29 ] Regardless of whether the Wattons’ homestead property was part of what William George Kennedy referred to in his will as Frederick Kennedy’s, or what he referred to as William Robert Kennedy’s, the evidence is undisputed that the Wattons have continuously, openly, exclusively and notoriously occupied the Wattons’ homestead property since moving into their homestead in 1963.

The Defendants did not put forward evidence to say otherwise. [ 30 ] In addition, Frederick Kennedy did not file an adverse claim. He testified at trial and he agreed in cross-examination that he did

not take issue with the Wattons’ assertion that the Wattons’ homestead property indeed was the Wattons’ property. Rather, he confirmed the Wattons’ homestead property was conveyed to the Wattons in 1962. [ 31 ] I have considered the evidence at trial, the title documentation, and the affidavit evidence filed in support of the quieting of titles application, including the affidavits of possession of Percy Greenslade and Frederick Baird.

Based on the evidence and documentation, I am satisfied that the Plaintiffs have established their title to the Wattons’ homestead property, as it is described in the survey attached to the quieting of titles application, being the survey of 8 Red Fern Lane, completed by Paul Bennett, dated July 10, 2015. I am satisfied that it is appropriate to grant an order for a quieting of titles certificate with respect to the Wattons’ homestead property, and that the certificate be free from the exceptions and qualifications contained in sub- sections 22(1) (a), (

c) and (

d) of the Quieting of Titles Act . [ 32 ] That order for the quieting of titles certificate of the Wattons’ homestead property, shall be subject to, and together with the benefit of, a right of way. The issue to resolve is whether that right of way is the claimed right of way, or otherwise. The right of way claimed by the Wattons [ 33 ] As stated, in the originating application the Wattons had claimed ownership of the claimed right of way.

However, the Wattons no longer claim ownership of the right of way; rather, the Wattons are claiming only a right to use the claimed right of way. [ 34 ] The claimed right of way is depicted in a survey of Paul Bennett dated July 10, 2015. It is entitled “Road access survey for Oliver Watton, 8 Red Fern Lane, Long Pond, CBS, Newfoundland and Labrador”. The claimed right of way runs across, and is entirely within, the southern portion of the Pikes’ property. The Pikes’ property is to the east of the Wattons’ homestead property.

The claimed right of way is bounded on the west by a boundary between the Wattons’ homestead property and the Pikes’ property, a distance of 4.301 meters; and it is bounded on the east by a boundary between Levi’s Place and the Pikes’ property, a distance of 6.262 meters. Mr.

Bennett’s survey refers to the claimed right of way as the “travelled section”. [ 35 ] On this 2015 Bennett survey, the southern boundary of the claimed right of way is not depicted as being flush with the fenceline on the northern boundary of the Collins’ property; rather, there is land in between the fenceline of the Collins’ property, and the southern boundary of the claimed right of way.

The distance from the Collins’ property northern boundary line to the southern portion of the claimed right of way was not identified in the survey plan. [ 36 ] The right of way dispute has already been the subject of two reported decisions. In Justice Adams’ decision in Kennedy v.

Watton (at paragraph 60), he ordered a permanent injunction restraining the Wattons “from blocking the free passage of persons with or without vehicles along the full length of the right-of-way known as Red Fern Lane from Levi’s Place to the western limit of the property of Oliver and Lillian Watton”. [ 37 ] Further, the right of way was also the subject of an interlocutory application in this matter, in which the Wattons had sought a determination from the Court as to whether family settlement discussions could be enforced as a resolution to this dispute. The decision of Justice Orsborn in Watton v.

Pike , 2018 NLSC 117 dismissed the Wattons’ application. [ 38 ] In his decision, Justice Orsborn did not set aside the October 2017 right of way agreement, which had been signed following the settlement discussions. Rather, he left it to the Court to determine at trial the effect, if any, of that agreement.

Justice Orsborn stated as follows, at paragraphs 45 and 46 of his decision: 45 My conclusion is that it has not been established that the agreement reached in March 2017 included a provision to the effect that Christian Pike confirmed, acknowledged or agreed to the existence of the right of way as claimed by the Wattons in the quieting application. Accordingly, Pike's adverse claim with respect to the right of way remains, with Pike challenging both the extent of the right of way and the exclusivity of possession.

These issues -- including a determination of the nature and exclusivity of possession required to establish entitlement to a right of way and the effect, if any, of the October 2017 right of way deed -- remain for investigation and determination by the Court. 46 Barring further discussions between the parties, a trial will be required. It would seem that the issues at trial will relate primarily to the claimed right of way; the evidence put forward by the Wattons in support of the homestead quieting remains unchallenged by any adverse claimant and appears, prima facie , to support the claim.

However, all of the claim remains for investigation and determination, and I express no view on the likely outcome. [ 39 ] The right of way agreement is to be considered as part of the analysis. The right of way agreement [ 40 ] The right of way agreement was signed on October 23, 2017 by Christian Pike, by Frederick Kennedy and by Oliver Watton, in their own respective capacities, and by Lillian Watton, both in her own capacity and as administratrix of the estates of William Robert Kennedy and Helen Kennedy. The right of way agreement states, as follows: THIS RIGHT-OF-WAY AGREEMENT made at the City of St.

John’s, in the Province of Newfoundland and Labrador, this 23rd day of October, 2017. BETWEEN : ESTATE OF WILLIAM ROBERT KENNEDY and the ESTATE OF HELEN KENNEDY , both of the Town of

Conception Bay South, in the Province of Newfoundland and Labrador, as represented by the respective Administrator of each estate, LILLIAN WATTON , of the Town of Conception Bay South, in the Province of Newfoundland and Labrador. (hereinafter called the “First Party”) AND : CHRISTIAN JAMIE PIKE , of the Town of Conception Bay South, in the Province of Newfoundland and Labrador (hereinafter called the “Second Party”) AND : FREDERICK KENNEDY , of the Town of Conception Bay South, in the Province of Newfoundland and Labrador (hereinafter called the “Third Party”) AND : OLIVER WATTON and LILLIAN WATTON , of the Town of Conception Bay South, in the Province of Newfoundland and Labrador (hereinafter called the “Fourth Party”) (collectively referred to as the “Parties”) WHEREAS the Parties herein all have a vested interest in the use of all that piece or parcel of land situate and being described as Red Fern Lane, in the Town of Conception Bay South, in the Province of Newfoundland and Labrador, being more particularly described in the

Schedule “A” attached hereto (hereinafter referred to as the “ Right-of-Way ”); AND WHEREAS the Parties have agreed that all parties hereto, as well as their heirs, successors, and assigns, are able to continue to use the Right-of-Way as well as the lands beneath such right-of-way for purposes of transportation, water, sewer, septic, and for other ancillary purposes; NOW THEREFORE WITNESSETH that for and in consideration of the sum of One Dollar ($1.00) exchanged by all parties herein, on or before the execution of these presents (the receipt and sufficiency of which is hereby acknowledged by all Parties) all Parties herein consent to themselves, their successors, assigns, and heirs, a right-of-way for ingress and egress for persons, with and without motor vehicles, in common with all other Parties herein as well as rights to enter, construct, maintain, inspect, alter and repair all drainage facilities, water, sewer, septic, or uses as required, and all other erections and excavations necessary and appertaining thereto over ALL THAT piece or parcel of land situate and known as Red Fern Lane, in the Town of Conception Bay South, in the Province of Newfoundland and Labrador and more particularly described in

Schedule “A”, attached hereto (which such

Schedule shall form part and parcel of these presents) TO HOLD the same unto themselves, their successors, assigns, and heirs, absolutely and forever for the purposes of a right-of-way, and subject to the provision that no parties shall block or hinder the use of the right-of-way to all parties herein as well as their successors, assigns, and heirs. SIGNED, SEALED & DELIVERED In the presence of: ________ (Sgd.) ___________________ _________(Sgd.)_______________ CHRISTIAN PIKE

SIGNED, SEALED & DELIVERED In the presence of: ________ (Sgd.) ____________________ ________ (Sgd.) ________________ FREDERICK KENNEDY SIGNED, SEALED & DELIVERED By Oliver Watton and Lillian Watton in the presence of: ________ (Sgd.) _________________ OLIVER WATTON ________ (Sgd.) ___________________ ________ (Sgd.) _________________ LILLIAN WATTON SIGNED, SEALED & DELIVERED By the Estate of William Robert Kennedy in the presence of: __________(Sgd.)_ _________________ ________ (Sgd.) _________________ Administrator – Lillian Watton SIGNED, SEALED & DELIVERED By the Estate of Helen Kennedy

in the presence of: __________(Sgd.)_ _________________ ________ (Sgd.) _________________ Administrator – Lillian Watton [ 41 ] Attached to the right of way agreement is the survey description and plan also prepared by Paul Bennett, which is dated June 13, 2017, and entitled “Red Fern Lane survey, Long Pond, C.B.S., Newfoundland and Labrador” (and being the “agreed right of way”). It depicts Red Fern Lane extending from Levi’s Place passing over the southernmost part of Christian Pike’s property; and it appears flush with the boundary line/fenceline of the Collins’ property.

It then passes to the south of the Wattons’ homestead property, but slightly encroaches on that property. It then continues to the west onto the southern portion of property which Frederick Kennedy claims as his property, but which is entitled on the survey plan as the “Estate of William Robert Kennedy Eastern Half”.

Summary of evidence of the right of way [ 42 ] At trial, the evidence was that the Defendants did not dispute there has been a historical right of way across the southern portion of the Pikes’ property to Levi’s Place, for use by the Wattons. Further, the Defendants acknowledged that they shifted the boundaries of that historical right of way.

However, the Defendants maintained that the Wattons did not establish that the boundaries of the historical right of way were, and are, as depicted in the 2015 Bennett survey plan of the claimed right of way, and described as the “travelled section”. [ 43 ] Further, the Defendants suggested that they had no issue with the Wattons’ quieting of titles application, as long as the right of way was to be described as it is in the right of way agreement, signed in October of 2017.

As stated, that right of way is referred to in this decision as the “agreed right of way”. [ 44 ] To recap, the evidence was that a right of way was first referenced in William George Kennedy’s will in relation to “Lot i”, where he stated: “It is to be understood that my nephew, William Robt. Kennedy, shall have a right-of-way leading from the local road across my half of this property to his own land”. Further, the evidence is that the 1962 deed from William Robt.

Kennedy to Oliver Watton referred to the right of way as being 15 feet wide to the south of the Wattons’ homestead property, and the conveyance was: “Together with a right-of-way leading from Kennedy’s Road aforesaid in a Westerly direction to the land hereinbefore described”. [ 45 ] Mr. Watton’s evidence at trial suggested that the right of way conveyed under that 1962 deed was intended to be 15 feet wide, to the south of his property, and crossing over the southernmost portion of the Pikes’ property to Levi’s Place.

However, when he purchased the Wattons’ homestead property, there was a barn on the southwest corner of what is now the Pikes’ property. The barn was large with dimensions of about 24 feet by 28 feet. Because that barn was in the way of the intended right of way, the Wattons had to initially travel north of the barn to cross over the Pikes’ property. Mr.

Watton’s evidence was that the barn came down in 1963, and then the right of way moved down closer towards the southern boundary of the Pikes’ property; but it did not move down to become flush with the fenceline in between what is now the Collins’ property (formerly the Baird property), and the Pikes’ property. Rather, his evidence was that from 1963 forward, the right of way used by the Wattons was as it is depicted in the July 10, 2015 Bennett survey plan as the “travelled section”. As stated, this is the “claimed right of way”. [ 46 ] Further, according to Mr.

Watton’s evidence, William Robert Kennedy parked his car on the side of the road closest to the Collins’ property. This evidence also suggested the historical right of way could not have been flush with the Collins’ property boundary line. [ 47 ] Mr. Watton’s evidence was also that the Kennedy family home was on the Pikes’ property, close to Levi’s Place, and to the north of the “travelled section”. He approximated there having been two, or three, feet between the Kennedy family home, and the northern boundary of the historical right of way. [ 48 ] To support this evidence, Mr.

Watton referred to a 1982 photo which depicted the old Kennedy home appearing close to the northern side of what appears to be a driveway or roadway; and which is the historical right of way. The southern side of that driveway depicts the fenceline which is on the northern boundary of the Collins’ property. Between the Kennedy family home and the driveway there is some grass; and there is also grass in between the driveway and the fenceline on the Collins’ property. [ 49 ] Mr.

Watton referred to another photo taken about 18 years ago, which again shows the tracks of the driveway/historical right of way, with snow piled in between the fenceline of the Collins’ property and the driveway. [ 50 ] Mr. Watton submitted further photos from about 2009 which also depicted the fencing on the Collins’ property, and the grass in between the fenceline and the historical right of way. [ 51 ] More photos from around 2013, or 2014, again depicted the historical right of way as appearing like a driveway leading from the Wattons’ property to Levi’s Place, on the southern portion of the Pikes’ property.

These photos also depicted the grass in between the driveway, and the fenceline on the northern boundary of the Collins’ property. [ 52 ] Further, according to Mr. Watton’s evidence, the “travelled section” as depicted in the 2015 Bennett survey is the historical right of way as depicted in the photos. As stated, this “travelled section” is the claimed right of way. [ 53 ] Mr. Watton’s evidence was that he did not ever ask for permission to use the historical right of way. [ 54 ] Mr.

Watton’s evidence was that around 2013 or 2014, the Pikes put crushed stone covering what had been the grassy area in between the southern boundary of the “travelled section”, and the fenceline on the northern boundary of the Collins’ property. Mr. Watton provided photographic evidence depicting that area filled in by gravel. Indeed, Christian Pike and Jamie Pike confirmed in their

testimony that they did fill in that area on the southern portion of the Pikes’ property. [ 55 ] For clarity, Mr. Watton’s evidence was that grassy area had never been used as part of the historical right of way; rather, as stated, it had been a grassy area until filled in with gravel. [ 56 ] Mr. Watton’s evidence was that he never measured the historical right of way with William Robert Kennedy. However, Mr.

Watton’s evidence was that there had been a distance of about 7 or 8 feet between the southern boundary of the claimed right of way (the “travelled section”), and the fenceline on the northern boundary of the Collins’ property. The historical right of way had a width of about 15 feet to the north of that grassy area. [ 57 ] Mr. Watton testified as to his understanding of the purpose of the October 2017 right of way agreement, at the time he signed it.

He understood that the purpose was to allow Frederick Kennedy, and others, to pass over the part of the agreed right of way which encroached about 3.5 feet onto part of the southern portion of the Wattons’ homestead property. This would allow access to Frederick Kennedy’s home and property, which is adjacent and to the west of the Wattons’ homestead property. It would also permit access to properties west of Frederick Kennedy’s. [ 58 ] Mr. Watton explained that in order for Frederick Kennedy to get to his property, Mr. Kennedy has to drive onto the Wattons’ homestead property a distance of about 3.5 feet.

Without the October 2017 agreement, there would only be a distance of 11.5 feet from the southern part of the Wattons’ homestead property to the fenceline on the Collins’ property. [ 59 ] Mr. Watton’s evidence was also that at the time he signed the right of way agreement in 2017, it was not his intention to withdraw the quieting of titles application; and specifically, he did not intend to give up his claim to the “travelled section”, being the claimed right of way. [ 60 ] In cross-examination, Mr.

Watton was questioned on whether the boundaries as depicted on the 2017 survey of the agreed right of way, were consistent with the historical right of way; and as it was initially described in the 1962 deed. In response, Mr. Watton seemed to suggest in his evidence that the portion of the agreed right of way to the west of the Pikes’ property is historically accurate, as it is depicted in the 2017 survey plan. However, he maintained his position regarding the historical inaccuracy of the depiction in the 2017 survey plan of that portion of the agreed right of way which runs across the Pikes’ property.

Rather, he maintained his entitlement of a right to use the claimed right of way, depicted as the “travelled section” in the 2015 survey plan. [ 61 ] Further in cross-examination, it was put to Mr. Watton by the Defendants’ counsel that, in essence, Mr. Watton was asking the Court for about a 21 foot right of way, since about 6 feet of grass had been filled in with gravel by the Pikes. Mr. Watton’s evidence was that the grassy

section in between the Pikes’ property, and the fenceline on the Collins’ property, had never been used as part of the historical right of way; and Mr. Watton wanted to use the right of way that he had always used. [ 62 ] Also in cross-examination, Mr. Watton suggested that he did not understand what he was signing, when he signed the right of way agreement. [ 63 ] Mr. Percy Greenslade testified that he knew there had been a historical right of way used by the Wattons, which he described as the driveway between “Willie Rob’s” property and the fenceline on the Baird property (now the Collins’ property). Mr.

Greenslade’s evidence was also that the historical right of way never abutted the fenceline. Rather, there had always been a grassy area in between the fenceline, and the right of way on the Pikes’ property. [ 64 ] Upon viewing the 2015 Bennett survey description of the “travelled section”, Mr. Greenslade was unable to say whether that survey plan accurately reflected the historical right of way. He confirmed that there had never been two co-existing right of ways. [ 65 ] Frederick Kennedy testified at trial.

As stated, he had no issue with the Wattons’ quieting application with respect to the Wattons’ homestead property. Mr. Kennedy also had no issue with the Wattons using the right of way as it is now. [ 66 ] With respect to the historical right of way, Frederick Kennedy’s evidence was also that there had never been more than one right of way; and that it had historically been a 15 foot wide right of way.

He also agreed that the historical right of way had never been flush with the fenceline of the Collins’ property; and that there had previously been a patch of grass in between the historical right of way on the Pikes’ property, and the fenceline on the Collins’ property. He never measured that patch of grass when it was there, but he estimated that its width had been around 4 or 5 feet. Further, his evidence was that the right of way is now straight, and without a patch of grass. [ 67 ] When asked about the difference between the old right of way versus the new right of way, Mr.

Kennedy’s evidence was that it was all one road to him. As well, like Mr. Greenslade, Mr. Kennedy was unable to confirm whether the right of way depicted as the “travelled section” on the 2015 Bennett survey accurately portrayed the historical right of way. [ 68 ] With respect to the October 2017 right of way agreement, Mr. Kennedy’s evidence was that he signed the agreement in order to get his sister a house. Lillian Watton is Frederick Kennedy’s sister. [ 69 ] The Court also heard the evidence of Christian Pike. Christian Pike’s father is Jamie Pike; and his grandfather is Frederick Kennedy.

The Pikes’ property had been conveyed to Christian Pike from his grandfather, Frederick Kennedy. Christian transferred the property in late July, or August, of 2018 to Christian’s father, Jamie Pike. [ 70 ] Christian Pike’s evidence was that the claimed right of way is larger than the historical right of way; and it did not need to be that big. He filed the adverse claim because the claimed right of way is bigger than it historically existed, and it was inconveniently placed. His evidence was that the historical right of way came within a couple of feet of the house now on the Pikes’ property.

He was shown a real property report prepared by surveyor Jonathan Williams in 2015, which confirmed the house now on the Pikes’ property is not on the claimed right of way.

[ 71 ] Christian Pike agreed that the historical right of way had indeed been modified when the Pikes’ property was owned by him. His evidence confirmed that a grassy area was indeed filled in with gravel, from the southern boundary of the historical right of way, up to the fenceline of the Collins’ property. This was done by Jamie Pike, with Christian Pike’s consent. [ 72 ] The final witness who testified was Jamie Pike. He is the current owner of the Pike’s property.

He confirmed that the property was conveyed from Christian around July, or August, of 2018. [ 73 ] Jamie Pike’s evidence was that his wife’s father, Frederick Kennedy, wanted to give her land to build a family home for his grandson. According to Jamie Pike’s evidence, he was informed by the Town that in order to get a building permit to build a home on the Pikes’ property, they needed a 50 by 100 feet lot. The Pikes’ property measures about 66 feet from Percy Greenslade’s property to the Collins’ property; that 66 feet included the historical right of way, and the grassy area.

The grassy area was about 6 feet wide. To get the permit, the historical right of way had to therefore be shifted south. Consequently, the grassy area up to the fenceline was filled in with crushed stone. This was under his direction around 2012. [ 74 ] Jamie Pike confirmed in his evidence that he did not get permission from the Wattons to move the historical right of way. He did get Christian’s permission. [ 75 ] Jamie Pike’s evidence was that the house now on the Pikes’ property is 23 or 24 feet from the fenceline on the Collins’ property; and the house is about 2 or 3 feet from the historical right of way.

Therefore, his house is not on the historical right of way; however, he confirmed that an orange mesh fence in front of his house is encroaching on the historical right of way. [ 76 ] Jamie Pike was of the view that the claimed right of way encroaches too much onto the Pikes’ property. Further, Jamie Pike was of the view that the survey plan of the claimed right of way is historically inaccurate, and the claimed right of way would cut through the old location of the Kennedy family home.

To support this assertion, Jamie Pike referred to the photo of the Kennedy family home, and the historical right of way, at consent exhibit # 3, page 1. He suggested that the distance from the Kennedy family home to the fenceline appeared to be much less than the more than 20 feet that Mr. Watton was suggesting.

The parties’ positions [ 77 ] The Wattons take the position that they have a prescriptive easement, which is a right of way over the Pikes’ property; and that the proper description of the right of way is as it is described in the survey of Paul Bennett entitled “Road access survey for Oliver Watton” dated July 10, 2015. As stated, that description is described by Mr. Bennett as the “travelled section”, and has also been referred to in this decision as the “claimed right of way”. [ 78 ] In support of their position, the Wattons relied mostly upon the testimony of Mr.

Watton, as well as the documentation submitted at trial, and filed with the quieting of titles application. [ 79 ] The Wattons referred to the evidence of landmarks to support their position regarding the accuracy of the 2015 Bennett survey description of the claimed right of way. Specifically, the evidence is that there has always been a fence between the Collins’ property and the Pikes’ property; and there is clear evidence of a patch of grass in between that fence, and the historical right of way.

The width of the patch of grass was estimated in evidence as being anywhere from 4 to 8 feet, depending upon the witness. Further, the evidence was that the historical right of way/driveway came very close to the old Kennedy family home. [ 80 ] The Wattons noted that Mr. Frederick Kennedy, in his testimony, did not appear to take any issue with the Wattons’ continued use of the historical right of way. Further, Mr. Kennedy did not file an adverse claim.

Rather, the only dispute with respect to the description of the claimed right of way came from Jamie Pike and Christian Pike. [ 81 ] The Wattons also referred to Jamie and Christian Pike’s admission that the grassy area in between the Pikes’ property, and the Collins’ property fenceline, had been filled in by Jamie Pike. Jamie Pike thought this occurred around 2012. Jamie Pike’s evidence confirmed they unilaterally determined that the historical right of way was to be modified by shifting it downward.

This was done to allow the Pikes to obtain a building permit before constructing a new house on the Pikes’ property. This was done even though the evidence suggested that the historical right of way had been used since at least 1963, which was when the Wattons built their matrimonial home on the Wattons’ homestead property. [ 82 ] The Wattons’ Counsel reviewed the law with respect to prescriptive easements. The decision of Franklyn v. St. John’s (City) , 2012 NLCA 48 details the applicable law. In Franklyn , at paragraph 32 , the Court of Appeal quoted extensively from the decision of Henley v.

Ryan (1980), 25 Nfld. & P.E.I.R. 431 (Nfld. D.C.) , which was a decision of then Chief Judge Steele of the District Court, later Justice Steele of the Court of Appeal. The Court of Appeal stated as follows: 32 The applications judge gave consideration to the "principle" to be applied in the course of determining whether or not a prescriptive easement exists. He relied on, and quoted a brief excerpt from Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 (Nfld. Dist. Ct.) , a decision of the then chief judge of the District Court, later Steele J.A. of this Court. He made no error in so doing.

That decision has been mentioned, without criticism, by this Court in Maher v. Bussey , 2006 NLCA 28 , 256 Nfld. & P.E.I.R. 308 (N.L. C.A.) as having "dealt with the law related to establishing ... a prescriptive easement". It has been relied upon by judges of the Trial Division on numerous occasions, because it contains a thorough assessment of the law respecting establishment of an easement by prescription. Although lengthy, consideration of a major part of that assessment is important to determination of the issues in this appeal and, hopefully, will be helpful to the parties' understanding of this decision.

Steele C.J.D.C. wrote: [25] There are three legal methods by which a prescriptive easement can be established or prescriptive rights can be claimed:

1. Prescription under a prescriptive statute; 2. Claims based on lost grants; and, 3. Prescription at common law. [26] Certain provinces in Canada have prescription statutes, but Newfoundland is not one of them. In England the statute is cited as the Prescription Act, 1932 [sic; should be 1832]. It is interesting to note that the common law was not displaced by the Prescription Act, 1932 [sic; should be 1832], but is only supplementary to the common law.

It provides an additional method of claiming an easement but does not interfere with the other two methods. [27] The fiction of the lost modern grant is explained by Jackson, The Law of Easements and Profits at p. 119, as follows: To protect long-established rights from the rigour of the law relating to immemorial prescription the courts invented the fiction of the lost modern grant.

Where a right can be shown to have been enjoyed for twenty years or more the court will assume that it owes its origin to a lost grant, whether that be a deed, a royal charter, an ecclesiastical faculty or a ministerial consent under statute. The court, it has been well observed, 'is endowed with a great power of imagination for the purpose of supporting ancient user'. [28] In order to support a prescriptive claim on the doctrine of prescription at common law, it must be shown to have been "user as of right", that is, having been enjoyed nec vi, nec clam, nec precario.

Nec vi means that enjoyment must not be by violence; nec clam means that the enjoyment must not be secret and finally, nec precario requires that the enjoyment must not be permissive. [29] In my opinion one of the best

definitions or explanations of what is meant by a prescriptive claim at common law is to be found in Cheshire, Law of Modern Real Property (12th Edition), pp. 538-40. Commencing at p. 538 the author refers to the three possible methods by which a prescriptive easement may be claimed and then goes on to say: Each method is based upon identical reasoning. The established principle no doubt is that an easement must be created by deed of grant, since incorporeal hereditaments lie in grant.

On the other hand, it is obviously undesirable that a man should be deprived of an easement long and continuously enjoyed merely because its formal creation by deed is incapable of proof. Therefore, in accordance with the maxim - omnia praesumuntur rite et sollemniter esse acta - the law is prepared to infer from this long enjoyment that all those acts were done that were necessary to create a valid title. In this way, a claim, founded upon factual enjoyment without interruption by the servient owner, is referred to a lawful origin.

Long enjoyment, however, is not in itself sufficient to raise the presumption of a grant. It must be of a particular nature, and this is so whether an easement is claimed either by prescription at common law, or under the doctrine of lost modern grant or under the Prescription Act 1832. As we shall see, the user must be as of right and continuous, and only a grant in fee simple will be presumed. All forms of prescription ultimately depend on the acquiescence of the servient owner. Why should long user confer a right protected by the courts?

The answer is, that if the servient owner has allowed somebody to exercise an easement over his land for a considerable period and if he has omitted to prevent such exercise when he might very well have done so, it is only reasonable to conclude that the privilege has been rightfully enjoyed, for otherwise some attempt to interfere with it would long ago have been made by any owner who possessed even a modicum of common sense. Fry, J., in one case said:- In my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence.

The courts and the judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised; but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingredients acquiescence consists...

I cannot imagine any case of acquiescence in which there is not shewn to be in the servient owner: (1) a knowledge of the acts done; (2) a power in him to stop the acts or to sue in respect of them; and (3) an abstinence on his part from the exercise of such power.

User as of right. This stress upon the element of acquiescence gives the clue to the kind of user required for a prescriptive title. In technical language, it must be user as of right, or, to use the expression taken by Coke from Bracton, longus usus nec per vim, nec clam, nec precario . The servient owner cannot be said to have acquiesced in an easement that has been enjoyed vi, clam or precario.

Thus, if the dominant owner has used coercion, or if his user is contentious in the sense that the servient owner continually and unmistakably protests against it, there is clearly no acquiescence, and the user, being vi, will not avail the claimant. Again, there is no acquiescence if the user has been clam, i.e. by stealth, for a man cannot assent to something of which he is ignorant, and the law allows no prescriptive right to be acquired where there has been any concealment or where the enjoyment has not been open.

It must always be found that the servient owner had actual or constructive knowledge of the enjoyment upon which the claimant relies. Lastly, where the user has been precario, that is, where it is enjoyed by the permission of the servient owner and the permission is one which he may withdraw at any moment, it cannot be said that he has acquiesced in the existence of the easement as a matter of right. To ask permission is to acknowledge that no right exists.

In this case an explanation of the user is forthcoming, and an irrevocable right to the perpetual enjoyment of the easement is not consistent with the explanation. What a plaintiff must show is that he claims the privilege not as a thing permitted to him from time to time by the servient owner, but as a thing that he has a right to do. (Footnotes omitted) [ 83 ] The Court of Appeal in Franklyn adopted Justice Steele’s expression of the law applicable to prescriptive easements (at paragraph 33).

Further, the Court of Appeal indicated that a period of at least 20 years of uninterrupted use is required to establish a prescriptive easement (at paragraph 35 of Franklyn ). [ 84 ] Applying the above analysis, the Wattons’ submitted that the evidence establishes that they are, for the purposes of a prescriptive easement, the dominant tenement. The servient tenement is now Jamie Pike, but it was his predecessors in title, including Christian Pike. [ 85 ] Further, as Justice Steele stated in the Henley v.

Ryan decision, the user of the servient tenement’s lands must have enjoyed passage over the lands without violence; and there is no evidence of any violence against the Wattons when using the historical right of way since the 1960s. Further, the usage of the right of way by the Wattons was not secret as the Pikes, and their predecessors in title, were clearly aware of the Wattons’ use of a right of way over the Pikes’ property since the 1960s. As well, since the 1960s, the servient tenement did not object to the Wattons using the right of way. At the same time, however, Mr.

Watton’s evidence was that no permission was granted to use the right of way. Finally, the Wattons’ use of the right of way had clearly been in excess of 20 years, as it dated back to at least 1963. [ 86 ] The Pikes conceded that there has been a historical right of way used by the Wattons over what is now the Pikes’ property. They do not take issue with the Wattons’ assertion that a prescriptive easement has existed for many years over the Pikes’ property.

As stated, the Pikes acknowledge that the historic right of way was unilaterally shifted by them, in a southerly direction by about 6 feet, when they filled in the grassy area with gravel. They asserted that this was for the purpose of having a proper lot size for building the new house. [ 87 ] The Pikes’ position, however, is that the Wattons have not established that the 2015 Bennett survey depicting the “travelled section” (i.e. the claimed right of way) is an accurate depiction of that historical right of way.

Rather, the Pikes submitted that the survey of the claimed right of way could not possibly be accurate; and further submitted that the Court could not be confident that the description of the claimed right of way is an accurate description of the historical right of way. [ 88 ] To support this contention, the Pikes referred to the evidence of Percy Greenslade and Frederick Kennedy, neither of whom could confirm that the survey of the claimed right of way was an accurate depiction of the historical right of way. [ 89 ] Further, with respect to the 2017 survey and plan attached to the right of way agreement (i.e. the agreed right of way), Mr.

Watton had agreed it was historically accurate in its depiction of the right of way to the west of the Pikes’ property, and that it allowed Frederick Kennedy access to his property to the west of the Wattons’ property.

However, the Pikes submitted that the western boundaries of the 2015 survey description of the claimed right of way do not meet up, and do not align, with the 2017 survey plan of the agreed right of way, in that area to the west of the Pikes’ property. [ 90 ] Further, the Pikes submitted that the survey description of the agreed right of way clearly conflicts with the survey description of the claimed right of way. However, the Wattons have signed on to the right of way agreement, and the Pikes’ position is that the Wattons cannot now come to the Court seeking a second, and larger, right of way.

The evidence does not support the existence of two right of ways. Also, the agreed right of way has a width of 15 feet, which is as large as the historical right of way, and more convenient. ANALYSIS [ 91 ] It is not disputed that since the 1960s, a historical right of way existed for the Wattons’ use, which ran across the Pikes’ property to Levi’s Place. The historical right of way was not flush with the fenceline on the northern boundary of the Collins’ property.

Rather, there was a grassy area in between the southern boundary of the historical right of way, and the fenceline. [ 92 ] I agree that the evidence establishes that this historical right of way was a prescriptive easement in favour of the Wattons. I conclude this by considering the evidence in light of Justice Steele’s analysis of the law respecting prescriptive easements in Henley v.

Ryan , as adopted in Franklyn . [ 93 ] On this point, and as submitted by the Wattons, the evidence established that the Wattons were the dominant tenement; and the Pikes, and their predecessors in title, were the servient tenement. Since the 1960s, the Wattons enjoyed continuous passage on the historical right of way through the Pikes’ property, without violence. The Wattons’ use of the historical right of way was not a secret. Further, there was no evidence that permission was granted to use the historical right of way.

[ 94 ] It is also not disputed that around 2012 or shortly after, the Pikes unilaterally chose to shift the historical right of way, without the Wattons’ permission. They did this by filling in the grassy area on the Pikes’ property, in between the historical right of way and the fenceline on the Collins’ property boundary. [ 95 ] What the Court must determine is whether the Wattons established, on the balance of probabilities, that the 2015 survey description of the claimed right of way describes the boundaries of the historical right of way.

In so doing, I reviewed and considered all the evidence of the witnesses, and I have determined all to be generally credible. In my view, any inconsistencies did not impact their overall credibility. Further, their evidence was generally reliable, with two exceptions I will later discuss in relation to portions of Mr. Wattons’ evidence. [ 96 ] Further, I have reviewed and considered all other evidence at trial, the submissions, the case law, and all the documentation submitted with the quieting of titles application.

Consequently, I have determined that I cannot reasonably conclude that, on balance, the 2015 survey description of the claimed right of way accurately reflects the boundaries of the historical right of way. [ 97 ] This determination is primarily based on a lack of evidence.

Specifically, there was no testimony from the surveyor who prepared the 2015 survey of the claimed right of way, describing how he determined the boundaries of the “travelled section”; and to confirm that the “travelled section” described in the 2015 survey was indeed consistent with the historical right of way, and as depicted in the photos submitted in evidence at trial. [ 98 ] Rather, Mr.

Watton was the only witness who testified at trial that the 2015 survey description of the “travelled section” was consistent with the historical right of way, as it existed prior to the Pikes unilaterally moving the right of way further south. However, this is Mr. Watton’s opinion; and Mr. Watton’s evidence cannot be considered expert opinion. [ 99 ] Further on this point, there was no indication on the 2015 survey plan description of what had been the actual distance between the Collins’ property fenceline, and the southern boundary of the “travelled section”. As a result, the Court could not assess if Mr.

Watton was correct in asserting that distance was 7 to 8 feet, or whether Mr. Kennedy was correct in suggesting the distance was 4 to 5 feet. Further, that distance could not reasonably be determined based on the photos submitted, nor any other evidence at trial. Therefore, there was insufficient evidence to, at the very least, permit an inference that the southern boundary on the 2015 survey plan of the claimed right of way was indeed consistent with the historical right of way. [ 100 ] Further, there was a significant inconsistency in Mr.

Wattons’ evidence which negatively impacted the reliability of his assertion that the “travelled section” on the 2015 survey accurately reflected the boundaries of the historical right of way. [ 101 ] To elaborate, Mr. Watton seemed to accept as historically accurate the depiction on the 2017 survey plan of that portion of the agreed right of way to the west of the Pikes’ property. He disputed the historical accuracy of the 2017 survey plan depiction of that part of the agreed right of way to the east of the western boundary of the Pikes’ property.

Rather, as stated, he asserted that the 2015 survey plan of the claimed right of way is historically accurate. [ 102 ] However, as submitted by the Defendants’ Counsel, the boundary lines of the claimed right of way, if extended west, would not meet up and align with the boundary lines of that portion of the agreed right of way to the west of the Pikes’ property, as depicted on the 2017 survey plan. I therefore find Mr.

Wattons’ evidence significantly inconsistent, and unreliable, with respect to his assertion regarding the historical accuracy of the 2015 survey of the “travelled section”. [ 103 ] The second portion of unreliable testimony from Mr. Watton pertains to his evidence regarding the October 2017 agreement. [ 104 ] To recap, in October of 2017, Mr. Watton signed the right of way agreement which clearly confirms the existence of a right of way being 15 feet wide, and flush with the Collins’ property fenceline; including the portion of the right of way passing over the Pikes’ property. However, Mr.

Watton was clear in his testimony that he had never intended to give up his claim to the “travelled section” when he signed that 2017 agreement. Nevertheless, the 2017 agreement did not express this; the agreement does not state it applied only to the right of way to the west of the Pikes’ property. In cross-examination, Mr. Watton seemed to explain this by suggesting that he did not understand what he was signing. [ 105 ] Mr. Watton’s assertion that he did not understand what he signed was the second portion of unreliable evidence on Mr. Watton’s part.

I do not accept that assertion as reliable because there was no evidence to suggest that Mr. Watton did not have the ability to understand what he was signing. As a result, the validity of the 2017 agreement was not impacted by this assertion. Further, at no time did Mr. Watton provide a plausible explanation as to why he should still be entitled to claim a larger right of way after signing the right of way agreement. [ 106 ] I add that neither Mr. Greenslade nor Mr.

Kennedy could confirm at trial whether the claimed right of way survey description was historically accurate. [ 107 ] Based on the foregoing, and after considering all the evidence and submissions, I concluded the Wattons did not establish on the balance of probabilities that the 2015 survey description of the claimed right of way described the boundaries of the historical right of way.

SUMMARY [ 108 ] In

summary, the Wattons did establish, and it was not disputed, that they had a prescriptive easement, being a right of way, over the Pikes’ property. They have established a right of use to that historical right of way over the Pikes’ property. Further, the Wattons established that the Pikes unilaterally modified the historical right of way, shifting it south to become flush with the Collins’ property fenceline. [ 109 ] However, as stated, the Wattons did not establish, on the balance of probabilities, that the boundaries of that historical right of way were as depicted in the 2015 survey plan of the claimed right of way, being the “travelled section”. As a result of their failing to

establish the boundaries of the historical right of way, I will not grant the Wattons’ request to quiet their right of use to the claimed right of way. [ 110 ] Nevertheless, in my view, the right of way agreement remains in effect. As a result, the Court will order that the quieting of the Wattons’ homestead property be subject to, and together with the benefit of, the right of way as described by, and in accordance with, the agreement executed in October of 2017. [ 111 ] I note that no claim or remedy was sought in respect of the Pikes’ actions of moving the boundaries of the prescriptive easement.

This was because the Wattons’ claim was confined to the action for quieting of titles. [ 112 ] I add that there was also a claim by the Wattons in the quieting of titles application with respect to their waterline which crosses over the Pikes’ property, and services the Wattons’ homestead property. The waterline was installed in 2006. It has not been installed long enough to support a claim for a prescriptive easement. In any event, this claim was not addressed as trial, and it was not addressed in the memorandums filed by the parties for trial.

It is unclear as to whether or not that issue has been resolved, or whether it remains to be determined. If this issue remains unresolved, the parties are not precluded from bringing a separate action to address this issue. There is insufficient evidence to consider the waterline in the context of this quieting of titles trial.

CONCLUSION [ 113 ] Based on the foregoing analysis, pursuant to the Quieting of Titles Act , it is hereby declared that the Wattons are the owners of the Wattons’ homestead property, and it is ordered that a certificate of quieting of titles shall be granted to the Wattons, for the Wattons’ homestead property. Further, the certificate of quieting of titles shall be subject to, and together with the benefit of, the right of way as described in the agreement executed in October of 2017, and in accordance with its terms. As stated in that agreement, the agreement is binding on successors and assigns.

The certificate of quieting of titles shall be free from the exceptions and qualifications in ss. 22(1) (a), (

c) and (

d) of the Quieting of Titles Act . [ 114 ] With respect to the issue of costs, there were mixed results. The Wattons were successful with their claim for a quieting of the Wattons’ homestead property, but they were unsuccessful with their claim for the right of use with respect to the “travelled section” depicted on the 2015 survey plan of the claimed right of way. The Wattons did establish a prescriptive easement over the Pikes’ property, and that the boundaries of the historical right of way were unilaterally shifted by the Pikes. Based on these mixed results, there shall be no order for costs. _____________________________ Valerie L. Marshall Justice