Bairn Corporation v Gabert, 2022 ABKB 668

Court of King’s Bench of Alberta Citation: Bairn Corporation v Gabert, 2022 ABKB 668 Date: 20221011 Docket: 2103 00233 Registry: Edmonton Between: Bairn Corporation and Greenmore Corporation Applicants - and - Douglas Harold Gabert and Judy Ann Gabert Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice Kevin Feth _______________________________________________________ Overview [ 1 ] Bairn Corporation (“Bairn”) purchased wilderness land from the Canadian Pacific Railway Company (“CPR Land”) next to farmland belonging to Douglas Harold Gabert and Judy Ann Gabert (the “Gabert Farm”).

A written easement granted in 1930 provides rights-of-way through the Gabert Farm connecting the CPR Land to a public road. The rights-of-way pass over arable land, but have been used infrequently, if at all, for decades. [ 2 ] Bairn transferred ownership of the CPR Land to its related company, Greenmore Corporation (“Greenmore”), which intends to build residences on the CPR Land. [ 3 ] In 2020, Bairn acquired from the CPR, by assignment, one of the rights-of-way through the Gabert Farm, known as Block F.

The scope of the easement is in dispute, including whether it entitles Bairn and Greenmore to construct an access road on the right-of- way to facilitate residential traffic.

[ 4 ] Bairn and Greenmore seek a declaration confirming that the written easement for Block F permits them to construct and maintain an access road. Alternatively, they ask the Court to declare an easement by necessity allowing for the road’s development over the Gabert Farm. In the further alternative, they request that the Court use its equitable jurisdiction to impose a “lasting solution” for the needs of the CPR Land. [ 5 ] I have concluded that the written easement grants rights-of-way for limited purposes related to a water pipeline that was abandoned by the CPR long ago.

The Block F right-of-way does not include the right to construct and maintain an access road for residential purposes. Further, Bairn and Greenmore have not established a right-of-way by necessity over the Gabert Farm. [ 6 ] Even if the Court has equitable jurisdiction to impose a right-of-way on some other basis, a claim for such relief should proceed through an action. The claim is not properly particularized and the existing evidentiary record is inadequate. Moreover, the Gaberts have agreed to grant a right-of-way over Block F to Greenmore providing limited access between the CPR Land and the public road.

Establishing the details of the proposed right-of-way is outside the scope of this Chambers application. Issues [ 7 ] The issues for determination by this Court are: a. Does the written easement grant rights-of-way over the Gabert Farm allowing access to the CPR Land from the public road and if so, what are the scope and location of each right-of-way? b. If the Block F right-of-way exists only for a limited purpose, does that purpose include building and maintaining a roadway through the Gabert Farm? c.

Is the Gabert Farm imposed with a right-of-way by necessity permitting Greenmore to access the CPR Land from the public road? d. Should the Court invoke its equitable jurisdiction and impose a “lasting solution” for the needs of the CPR Land? Background [ 8 ] During the late 1920s, the CPR was expanding its railway line near Bruderheim, Alberta. The Gabert Farm is in the vicinity. [ 9 ] In 1930, Douglas Harold Gabert’s grandfather (Samuel Gabert) owned the Gabert Farm.

At the time, Samuel Gabert signed a Transfer of Easement in favour of the CPR and its assigns for rights-of-way through the Gabert Farm to the adjoining CPR Land. Samuel Gabert received $40 for the concession. The easement was registered on the title for the Gabert Farm. [ 10 ] Limited information is before me about the CPR’s reasons for acquiring the rights-of-way and what was done with them during the subsequent decades.

The Transfer of Easement contemplated the construction, operation and maintenance of a water pipeline from a deep water creek on the CPR Land through the farm property to a public road and beyond. The historical context suggests the pipeline would feed water to distant railway facilities servicing steam engines. However, all steam rail service in this part of Alberta ceased in 1960. [ 11 ] The evidence conflicts on whether the pipeline was ever built. Douglas Gabert’s initial Affidavit expresses his understanding that the CPR never accessed the CPR Land and did not use the easements.

However, in a Supplemental Affidavit, Mr. Gabert deposes that the pipeline is located within the Gabert Farm but should be inoperable as it has not been used for over 60 years. The Transfer of Easement contemplated the possibility of a subsurface pipeline. I infer from Mr. Gabert’s evidence that if a pipeline existed, it was underground. The parties agree that no operational pipeline is currently on or under the Gabert Farm. [ 12 ] Mr. Gabert also deposes that he has not seen Bairn use the easements. That fact is not contested.

Nothing is before me about Greenmore’s use of the Gabert Farm to access the CPR Land. [ 13 ] The Transfer of Easement describes easements involving two corridors of land on the Gabert Farm known as Blocks F and G. The parties agree that Blocks F and G are accurately depicted on a survey plan showing the Gabert Farm and the CPR Land. [ 14 ] The survey plan describes Block F as a corridor running along the edge of the farmland connecting the public road with the CPR Land.

The parties agree the corridor is 20-feet wide. [ 15 ] The survey plan describes Block G as a separate corridor running through another part of the Gabert Farm connecting the same public road with another part of the CPR Land. The corridor is 30 feet wide. The plan shows that the Block G corridor consists of two parallel ribbons of land. One ribbon appears to be the same width as Block F – 20 feet. The other ribbon is approximately half as wide – 10 feet. [ 16 ] The parties agree that Block G was to be used by the CPR for a water pipeline. [ 17 ] The Transfer of Easement refers to an “entrance road”.

The parties disagree about the road’s intended location because it was apparently never constructed. Bairn and Greenmore contend that the entrance road was to cover Block F. The Gaberts contend the entrance road was a right-of-way running parallel to the pipeline over Block G. [ 18 ] The dominant tenement to which the right-of-way applies is not mentioned in the Transfer, but the parties agree the dominant tenement is the CPR Land. The Gabert Farm is the servient tenement.

[ 19 ] The parties stipulated before me that Block F is used as agricultural land. No pathway currently exists on Block F. [ 20 ] The CPR Land is a nature reserve containing a creek and trees. Local people appear to use it for recreational purposes. No access route to the land has been developed from any direction. [ 21 ] Greenmore wants to build an access road on Block F by grading and possibly gravelling the right of way. While the evidentiary record suggests Greenmore was contemplating a paved road at one time, that option is no longer being pursued.

Greenmore is not seeking to change the elevation of the right-of-way, so farm equipment will still be able to pass over it. [ 22 ] While a road would need to be maintained, Greenmore does not seek access to any of the surrounding farmland to grade, repair or remove snow from the right-of-way. All construction and maintenance would occur within the 20-foot-wide corridor. [ 23 ] The Gaberts acknowledge the Transfer of Easement was validly executed in 1930 and created certain rights-of-way, but they disagree with Bairn and Greenmore about the scope of those rights-of-way.

They are prepared to grant a limited right-of-way to Greenmore over Block F connecting the CPR Lands to the public road, but not at the expense of losing the arable use of their farmland. Consequently, they will not agree to a graded or gravelled roadway over Block F. [ 24 ] This proceeding came before as a Special Chambers application, rather than as a trial. The parties invited me to determine the issues on Affidavit evidence to the extent possible. The wording of the grant and the parties’

interpretations [ 25 ] The Transfer of Easement states in relevant part: I, Samuel Gabert, of Fort Saskatchewan, in the Province of Alberta, Farmer, being registered owner of an estate in fee simple, in possession in all that certain parcel or tract of land and premises situated, lying and being in the Province of Alberta, and composed of: Those portions of the South West quarter of

Section Twelve (12) in Township Fifty-five (55) and Range Twenty-one

(21) West of the Fourth Meridian, shewn as Block “G”, containing 1.58 acres, more or less, and Block “F”, containing 0.84 of an acre, more or less, as said Blocks are shewn upon a plan of lands ... do hereby in consideration of the sum of Forty and 00/100 ($40.00) Dollars, paid to me by the Canadian Pacific Railway Company, the receipt of which sum is hereby acknowledged, transfer to the said Canadian Pacific Railway Company, its successors, assigns, agents, servants and workmen, and all other persons, acting for and on behalf of the said Canadian Pacific Railway Company at any and all times hereafter the leave, license, right and privilege to lay down and construct, operate, maintain, repair, remove, renew, keep and have a pipeline, water pipes and air valve boses in, upon and under the said Block G, together with a free and uninterrupted easement, right of way , ingress, egress and regress for such purposes through, along, over and upon said Block G.

AND DOTH ALSO for the consideration aforesaid, transfer to the said Canadian Pacific Railway Company, its successors and assigns at any and all times hereafter a free and uninterrupted easement, right of way, ingress, egress and regress for all purposes through, along, over and upon said Block F for entrance road hereinbefore mentioned . [ emphasis added ] [ 26 ] Bairn and Greenmore submit that the Transfer conveyed two separate easements. The first permitted the CPR to construct and maintain a water pipeline on Block G carrying water from the natural reservoir on the CPR Land through the farmland.

The second was an entrance road on Block F to access the CPR Land for all purposes . A general grant on Block F allegedly allows for the development of the right-of-way for any purpose related to the CPR Land. [ 27 ] The Gaberts contend the Transfer conveyed three easements for the same project: the construction, operation, maintenance and eventual removal of the water pipeline. Block G is subject to two easements. The first was for the right to lay down, construct, operate, repair and ultimately remove the pipeline.

The second, running parallel to the pipeline’s path, provided for an entrance road to the CPR Land and access to the pipeline for inspection and repair.

These two easements are described in the Transfer as follows: • The “right ... to ... keep and have a pipeline... in, upon and under Block G” (being the pipeline path); “together with” • A “right of way ... for such purposes through, along, over and upon said Block G” (being the entrance road). [ 28 ] According to the Gaberts, the third easement is Block F, providing another way to access the CPR Land, but only for purposes related to the entrance road on Block G.

The Transfer describes that easement as follows: • A “right of way ... for all purposes through, along, over and upon said Block F for entrance road hereinbefore mentioned”. [ 29 ] I will now address the

interpretation of these provisions. Issue 1: Does the written easement grant rights-of-way over the Gabert Farm allowing access to the CPR Land from the public road and if so, what are the scope and location of each right-of-

way? [30] The language of the Transfer of Easement and the circumstances in which it was created demonstrate that three easementswere granted in 1930. I have concluded that a right-of-way was established through Block F, but only for purposes related to an entranceroad on Block G.

a) Guiding principles for interpreting an express grant of an easement [31] One way to acquire a right-of-way is through an express grant made by the owner of the servient tenement in favour of theowner of the dominant tenement.

The nature and extent of the easement, including its location, who may use it, how it may be used, andthe permitted purposes, is determined by the parties’ intentions when the grant was made: Husky Oil Operations Ltd v Shelf HoldingsLtd, 1989 ABCA 30 at para 33, leave to appeal to SCC refused (1989), 57 DLR (4th) viii (note) [Husky Oil]; Smith et al v Morris, (ON CA), [1935] 2 DLR 780 (Ont CA) at para 8 [Morris]. [32] The parties’ intentions are ascertained from “the wording of the instrument creating the easement, considered in the context ofthe circumstances that existed when the easement was created”: Fallowfield v Bourgault, (Ont CA) at para 10[Fallowfield]. [33] Express grants are governed by the same principles of

interpretation as any other contract: Ludwick v Liscombe, 2022 ABCA155 at paras 15-19; Grant v Lowres, 2018 BCCA 311 at para 19. [34] Where the contractual language is unclear, context is helpful in searching for the original parties’ common intention. Thecontext includes the commercial setting, surrounding circumstances, and the aim and genesis of the transaction. The importance of the“factual matrix” was explained by the Supreme Court of Canada in Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 at paras 47-48, 57: ... the

interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules ofconstruction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” ... To do so, adecision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with thesurrounding circumstances known to the parties at the time of formation of the contract ...

While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelmthe words of that agreement ... The goal of examining such evidence is to deepen the decision-maker’s understanding of the mutual andobjective intentions of the parties as expressed in the words of the contract. [35] The surrounding circumstances known to the parties or within their reasonable contemplation when the easement was grantedcan inform its intended scope. Relevant circumstances include the following (summarizing factors identified in the authorities): a.

The purpose for which the grant was made; b. The existing and historical use of the dominant and servient lands when the grant was made; c. Whether the parties to the grant contemplated changes in the use of the lands over time; d. The physical nature of the servient lands; and e. Whether an expansive scope to the easement substantially interferes with the use of the servient lands.

See: Bruce Ziff, Principles of Property Law, 7th ed. (Thomson Reuters Canada Limited, 2018) at 424, 436-437 [Principles of PropertyLaw]; Burgoyne v Hutton, 2016 NSSC 60; Todrick v Western National Omnibus Co, [1934] 1 Ch 190 at 206, varied [1934] 1 Ch 561(CA) [Todrick]; Malden Farms Ltd v Nicholson, (ON SC), [1954] OR 740, affirmed (ON CA),[1956] OR 415 (CA); SS & M Cermaics Pty Ltd v Kin, [1996] 2 Qd R 540 (CA); McCorquodale v Baranti Developments Ltd, 2015BCCA 133: Morris at para 8 referring to Cannon v Villars (1878), 8 Ch D 415: Laurie v Winch, , [1953] 1 SCR 49 at55-57 [Laurie]; Husky Oil at paras 34-35, 44; Robinson v Pipito, 2014 BCCA 200 at paras 41-44. [36] Where the words in the grant of the right-of-way “are unclear, the historic use and circumstances surrounding the use of theproperty subject to the easement are particularly important to understand the nature and extent of the rights conveyed”: Markowski vVerhey, 2020 ONCA 472 at para 32; Almel Inc v Halton Condominium Corporation No 77, (Ont CA) at para 3[Almel]. [37] The intended purpose for which the grant was made is a primary consideration in construing the breadth of a right of way:Temple Kol Ami v Elm Thornhill Woods Inc, 2008 ONCA 460 at para 48 [Temple Kol].

However, the easement’s original purpose doesnot necessarily preclude a common intention to adopt another use over time: Granfield v Cowichan Valley Regional District, (BC CA) at paras 20-21. A right-of-way’s purpose can evolve, so long as the change in use remains within its reasonableambit: Laurie at 57-58. [38] If the “grant of a right-of-way is not limited to any particular purpose, or if a way has been used for several purposes, ageneral right-of-way may be inferred.

However, this will not be the case where the evidence shows intended use for particular purposes only”: Temple Kol at para 48 quoting with approval from Anne Warner La Forest, Anger & Honsberger Law of Real Property, 3rd ed.looseleaf (Aurora, Ontario: Canada Law Book, 2006). [39] Where a right-of-way is given under a general grant of authority, the permissible use is not limited to the original use. The

Ontario Court of Appeal explained in Almel at para 3 : Although the owner of the dominant tenement cannot alter the type of use of the right of way beyond its original scope, the burden on the servient tenement can be reasonably increased so long as the use is of the same general nature, and it can reasonably be said to have been in the contemplation of the parties at the time of the grant. [ 40 ] In contrast, where the right of way was granted for a specific purpose, the burden on the servient tenement cannot, without the owner’s consent, be increased beyond the terms of the grant: Temple Kol at para 48 . [ 41 ] The express grant includes those ancillary rights reasonably necessary to use or enjoy the easement , such as the ability of the dominant tenement owner to enter the servient tenement to effect repairs and maintain a right-of-way: Fallowfield at para 11 .

b) The wording of the Transfer is ambiguous, but favours rights-of-way through Blocks F and G for limited purposes [ 42 ] The Transfer describes a right of way over Block F “ for all purposes ... for entrance road hereinbefore mentioned” . The entrance road is not defined or clearly explained. Two contrary

interpretations are possible. [ 43 ] Bairn and Greenmore contend that the entrance road is located on Block F and the words for all purposes express an intention to convey a general right-of-way to the owner of the CPR Land without restriction. I do not agree. [ 44 ] First, a grant “for all purposes” means for all purposes having regard for the circumstances of the case, the situation of the parties and the situation of the land at the time the grant was made: Todrick at 206; Laurie at 57.

The words, in isolation, do not point to a grant of unlimited use. [ 45 ] Second, in considering the aim and genesis of the transaction, the only evidence about the reasons for creating the easements, including the right-of-way over Block F, is found in the Transfer – the development of a water pipeline for use by the CPR. [ 46 ] Third, the purpose of the right-of-way on Block F must be read in context with the rights simultaneously created on Block G. The right-of-way on Block G is clearly for a limited purpose - the construction, operation, maintenance and removal of a water pipeline.

The critical words of the Transfer describe the easement on Block G as follows: ... the leave, license, right and privilege to lay down and construct, operate, maintain, repair, remove, renew, keep and have a pipeline, water pipes and air valve boses in, upon and under the said Block G, together with a free and uninterrupted easement, right of way, ingress, egress and regress for such purposes ... [ 47 ] Fourth, the paragraph in the Transfer describing the easement through Block F contains limiting language: the easement is for all purposes for entrance road hereinbefore mentioned .

The meaning of entrance road hereinbefore mentioned must be determined. [ 48 ] Bairn and Greenmore contend that the right-of-way over Block F is wholly independent of the pipeline and the words entrance road hereinbefore mentioned refer to Block F. However, that leads to redundancy and a strained

interpretation. Again, the relevant part of the Transfer states: AND DOTH ... transfer to the said Canadian Pacific Railway Company, its successors and assigns at any and all times hereafter a free and uninterrupted easement, right of way, ingress, egress and regress for all purposes through, along, over and upon said Block F for entrance road hereinbefore mentioned . [ 49 ] The Bairn and Greenmore position robs the words hereinbefore mentioned of any meaning. As a principle of

interpretation, the drafters of a document are presumed to select words deliberately and to give all words meaning.

A construction of the document rendering some words redundant is therefore less likely to reflect the drafters’ intentions. [ 50 ] In contrast, meaning is restored, and the literal wording respected, if entrance road hereinbefore mentioned refers to a road described earlier in the Transfer in relation to Block G. [ 51 ] The parties agree that a survey plan for the CPR Lands and the Gabert Farm is incorporated by reference into the Transfer where a plan of lands is mentioned in the description of the servient tenement. The survey plan shows the two ribbons of land running in parallel through Block G.

I agree with the Gaberts’ contention that two ribbons are probably shown because one was the pipeline’s path and the other was the entrance road to the water reservoir running next to it. In the historical context, an entrance road adjacent to the pipeline’s path would logically allow the pipeline to be inspected and repaired while also providing access to the reservoir. [ 52 ] The width of the “entrance road” on Block G is equal to that of the right-of-way on Block F.

If a 20-foot-wide corridor was adequate for a “road” on Block F, as submitted by Bairn and Greenmore, the same is likely true of the pathway on Block G. Moreover, the words through, along, over and upon Block G are the same as those used to describe the right-of-way on Block F. A roadway is compatible with the language. [ 53 ] The contractual language differentiates between the two ribbons on Block G in a subtle but significant manner. One ribbon contemplates a right-of-way that passes in, upon and under Block G. The other ribbon passes through, along , over and upon Block G.

The distinctive language is presumed to be deliberate and to communicate different meanings. The former probably suggests a subsurface pipeline while the latter possibly contemplates a road. [ 54 ] Fifth, the Transfer and the survey plan do not explain why the right-of-way on Block F would be characterized as an entrance road in 1930. The survey plan shows that right-of-way entering into a separate part of the CPR Land that did not connect to the pipeline. Nothing suggests any development in that part of the land, which was likely wilderness as it is today. If a road served as an entrance to

something, the most likely target was the pipeline development in another area on the CPR Land, at the end of Block G. [ 55 ] In short, the wording of the written instrument suffers from some ambiguity about the location of the entrance road. However, the language generally favours the Gaberts’ position that the entrance road was located on Block G, while the right-of-way on Block F supported that entrance road. If so, the right-of-way on Block F was not contemplated, at the time of the grant, to be a general grant for unlimited purposes.

c) The surrounding circumstances also suggest a limited purpose for any right-of- way through Block F [ 56 ] As an aid to

interpretation, the Court may consider the factual context when the Transfer of Easement was formed. [ 57 ] In 1930, the surrounding area was farmland with only slightly travelled roads, likely consisting of heavy clay or loam, no asphalt or paved roads, and no nearby hamlet or town. The CPR Land was likely pristine wilderness. [ 58 ] When the Block F right-of-way was created, the parties to the Transfer knew about the agricultural use of the Gabert Farm. Samuel Gabert was working his land at that time for farming.

Nothing indicates he contemplated substantial interference with agricultural production on Block F at that time or any time in the future. [ 59 ] The parties to the Transfer also knew that the CPR intended to develop the adjoining CPR Land to support a water pipeline (as mentioned in the Transfer).

The surrounding circumstances and the limited historical record do not identify any other purpose for which the CPR Land might be used when the Transfer was negotiated. [ 60 ] Greenmore suggests that the CPR might have been establishing a general right of unlimited access to the CPR Land when the Transfer was signed in the event the land was ever developed for another purpose. However, that is merely conjecture.

Nothing about the CPR Land or the surrounding land use at the time suggests that further development was contemplated. [ 61 ] Moreover, no evidence is offered suggesting that Samuel Gabert was made aware of other possible uses for the CPR Land during the negotiation of the Transfer. A grantor’s intention to permit an expanded use of a right-of-way in the future can be inferred from surrounding circumstances.

For example, in Laurie , a right-of-way over farmland was found to contemplate the development of adjoining lake shore property into building lots, even though the express grant did not address that possibility. The Supreme Court of Canada held that the farmer knew about the possibility of such development because the original part of the farm had been subdivided years earlier into building lots. That is not the situation before me. [ 62 ] The purpose of the right-of-way over Block F can be deduced from the surrounding circumstances - to support the entrance road on Block G.

While the servicing needs of the entrance road are not directly in evidence, plausible explanations can be inferred from the circumstances. For example, during the construction or later removal of the entrance road on Block G, another access point into the CPR Land might have been desirable or necessary, including to bring equipment, materials and labour onto the CPR Land to facilitate the construction (or reclamation) of the entrance road. Alternatively, Block F might have been an alternative access point in the event the entrance road was temporarily unusable.

If a subsurface pipeline was constructed, Block G might have been impassible at times when that part of the Gabert Farm was under agricultural production. Depending on land usage, Block F along the edge of the Gabert Farm might have been passable. In short, the notion that Block F supported the entrance road is very plausible, not merely speculative.

d) Conclusion on the locations and scope of the rights-of-way [ 63 ] From the wording of the Transfer and the factual matrix, including the surrounding circumstances when the easement was formed, I conclude that Block G was established for the limited purpose of facilitating the construction and operation of a water pipeline and an entrance road to the CPR Land for that pipeline activity. [ 64 ] I find that Block F was created at the same time in support of the same pipeline project.

The language of the Transfer, considered in the context of the circumstances existing when the easement was created, leads me to conclude that the right-of-way on Block F was only for purposes related to the entrance road on Block G. The words for all purposes , when read in the circumstances of the case, the situation of the parties and the situation of the land at the time the grant was made, do not create an unlimited or general grant of a right-of-way. [ 65 ] The Gaberts did not assert before me that the easements have been extinguished because the pipeline was either never built or no longer exists.

I make no finding about whether the rights-of-way have terminated. Issue 2: As the right-of-way on Block F only has a limited purpose, does that purpose include building and maintaining a roadway through the Gabert Farm? [ 66 ] The express grant of an easement includes those ancillary rights reasonably necessary to use or enjoy the easement , as explained in Fallowfield at para 11 : ... to imply a right ancillary to that which is expressly granted in the easement, the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable.

Halsbury’s explains the concept at p. 10, para. 20, in the following way:

The express grant of an easement is also the grant of such ancillary rights as are reasonably necessary for its exercise or enjoyment. Theancillary right thus implied must be necessary for the use and enjoyment, in the way contemplated by the parties, of the right granted; itis not sufficient that such an ancillary right would be convenient, usual, common in the district or reasonable... [67] Bairn and Greenmore argue that the scope of an easement is not limited to the original use so long as the new use is of thesame nature and was in the contemplation of the parties at the time of the grant.

If Block F contemplated a roadway, the roadway may beused for other purposes. They rely on comments in West High Development v Veeraraghaven, 2011 ONSC 1177 at para 87, referring toAlmel at para 3: Where a right of way has been created by express grant, the scope of permissible use depends on the words used. The circumstancesexisting at the time of the grant may also be looked at to construe the nature and extent of the rights conveyed.... In the case of a generalgrant, as here, the permissible use is not limited to the original use.

Although the owner of the dominant tenement cannot alter the type ofuse of the right of way beyond its original scope, the burden on the servient tenement can be reasonably increased so long as the use is ofthe same general nature, and it can reasonably be said to have been in the contemplation of the parties at the time of the grant. [emphasisadded] [68] The right-of-way on Block F is not in the nature of a general grant. It has a specific purpose related to the water pipeline.

Theburden on the servient tenement (the Gabert Farm) cannot be expanded beyond its original scope, absent consent from the Gaberts, asthat would offend the intentions of the original parties to the Transfer of Easement. I find that using Block F for a residential road,including a graded or gravelled pathway, was not reasonably within the contemplation of the CPR and Samuel Gabert when the right-of-way was created. [69] Accordingly, I conclude that the scope of the right-of-way on Block F does not include the construction and maintenance of aroad, a graded pathway, or a gravelled right-of-way.

Issue 3: Is the Gabert Farm imposed with a right-of-way bynecessity permitting Greenmore to access the CPR Land fromthe public road? [70] Bairn and Greenmore contend that a right-of-way from the public road to the CPR Land may be imposed by necessitybecause the land is otherwise landlocked and valueless, which offends public policy. [71] A right-of-way of necessity is acquired by implied grant.

As explained in Shea v Bowser, 2013 NSCA 18 at para 39 [Shea],referring to Gale on Easements, the grant is implied: ... where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained is left without anylegally enforceable means of access. In such a case the

part left inaccessible may be entitled, as of necessity, to a way over the other part. [72] In Alberta, the principles were addressed by Justice Paperny (as she then was) in Condominium Plan No 7810477 (Owners) vCondominium Plan No 7711723 (Owners), [1998] 4 WWR 43, (Alta QB), affirmed on other grounds 1999 ABCA282 [Condo Plan 7810477] at paras 50-51: A way of necessity is a right of way which the law implies in favour of a grantee of land over the land of the grantor, where there is noother way by which the grantee can get to the land so granted him, or over the land of the grantee where the land retained by the grantoris landlocked.

A right of way of necessity can only exist where the implied grantee of the easement has no other means whatsoever ofreaching his land. ... there can be no way of necessity unless the necessity existed at the time of the grant of the dominant tenement. [73] The underlying rationale for the implication is that the parties to a land transaction, in conveying the land, must have intendedthat each parcel should be capable of use and not rendered useless: J.L. Goddard, A Treatise on the Law of Easements, 6th ed. (London:Stevens & Sons, 1904) at 359-361 [A Treatise on the Law of Easements].

Given the utility of easements of necessity, a clear expressionof a contrary intention by the parties should be required: Principles of Property Law at 427. [74] The legal requirements of an easement implied by necessity may be summarized as follows:

a) The locked land was severed from a single parcel of land (under common ownership);

b) Following the severance, access to the locked land is only possible through the adjoining land that formed part of the originalparcel; and

c) The necessity of the easement existed when the grant was given. See: A Treatise on the Law of Easements at 359-361; Nelson v 1153696 Alberta Ltd, 2011 ABCA 203 at para 40, leave to appeal to SCCrefused [2011] SCCA No 423 [Nelson]; Condo Plan 7810477 at para 51; Toronto-Dominion Bank v Wise, 2016 ONCA 629, leave toappeal to SCC refused , at para 21 [Wise]. [75] The nature of the necessity is the subject of some debate in the authorities. The conventional view requires strict or absolutenecessity, meaning that the landowner has “no other way” of accessing the locked land.

The land is “absolutely inaccessible or useless”in the absence of an implied right-of-way. If access without it is merely inconvenient, the easement will not be implied: Nelson at para43; Wise at paras 21, 24 and 25; McClatchie v Rideau Lakes (Township), 2015 ONCA 233 at para 53.

[76] An alternative approach, based upon public policy, suggests that strict or absolute necessity has evolved into “practicalnecessity”. Something less than absolute necessity but greater than mere convenience is required: Hirtle v Ernst, (1991) 21 RPR (2d) 95, (NS SC) [Hirtle]. See also: Shea (without approval or disapproval of either test).

However, Hirtle suggests this isonly an exception for land parcels bordering or partly surrounded by water where access from the water is possible but impractical. [77] The “practical necessity” approach was expressly rejected, and the strict necessity test affirmed, by the Ontario Court ofAppeal in Wise, at para 32. The Court observed that an easement of necessity arises not from public policy but rather as a matter ofpresumption about the parties’ intentions when a transfer of land was made.

The Court approved of the following statement from theEnglish Court of Appeal in Nickerson v Barraclough, [1981] Ch 426, [1981] 2 All ER 699 (CA) at 447 Ch: ... the law relating to ways of necessity rests not upon a basis of public policy but upon the implication to be drawn from the fact thatunless some way is implied, a parcel of land will be inaccessible. From that fact the implication arises that the parties must have intendedthat some way giving access to the land should have been granted. ...

Public policy may inhibit the parties from carrying their intentioninto effect, but I cannot see how public policy can have a bearing upon what their intention was. In my judgment, that must beascertained in accordance with the ordinary principles of construction, the language used and relevant admissible evidence ofsurrounding circumstances. [78] In Alberta, the strict necessity test received approval, although without mentioning the competing “practical necessity”approach, in Nelson at para 43.

For other examples endorsing strict necessity, see: Condo Plan 7810477 at para 50; Hough v Alberta,2000 ABQB 1004 at paras 5-6; Miywasin Friendship Centre (Medicine Hat) v 1927546 Alberta Ltd, 2019 ABQB 675, reversed onother grounds, 2021 ABCA 108, at para 17. [79] The strict necessity test is also supported by the British Columbia Court of Appeal: see Roop v Hofmeyr, 2016 BCCA 310 atpara 33. [80] I am satisfied that “strict necessity” is the requirement in Alberta.

The reasoning in Wise is persuasive and the conventionaltest has been applied repeatedly in this province. [81] Bairn and Greenmore have failed to establish any of the requirements for a right-of-way by necessity. [82] First, nothing in the evidence suggests that the CPR Land and the Gabert Farm ever had common ownership. Accordingly, nogrant is identified from which the implied intentions of a grantor and grantee may be ascertained. [83] Second, the evidence fails to demonstrate strict necessity. Douglas Gabert’s evidence is that a few other neighbouring piecesof land can provide access to the CPR Land.

In contrast, Greenmore’s officer, Bruce Nimmo, deposes that the CPR Land can only beaccessed through the Gabert Farm and that the CPR land is otherwise landlocked and valueless. However, he does not explain howaccess to the CPR Land is prevented from other sides. The survey plan does not depict any natural barriers to the CPR Land. [84] During questioning on his Affidavit, Mr. Nimmo acknowledged retaining an agent who approached three or four landowners,including owners of properties adjacent to the CPR Land, about the possibility of providing a right-of-way.

No right-of-way agreementwas completed with other property owners. However, his evidence in this regard reveals that access is possible from other adjacent lands. [85] When Mr. Nimmo’s evidence is considered as a whole, no material factual dispute arises between the parties. Alternativeaccess routes to the CPR Land are possible.

Greenmore has simply been unable to reach an agreement with another neighbour. [86] Third, no evidence is before me about a strict necessity for the right-of-way when the CPR Land was acquired from anygrantor. [87] Moreover, to the extent Bairn and Greenmore suggest that an easement by necessity may be created to advance public policy,that proposition is incompatible with the prevailing authorities rejecting public policy as a basis for creating such an easement. [88] I conclude that a right-of-way by necessity has not been established.

Issue 4: Should the Court invoke its equitable jurisdiction toimpose a lasting solution for the needs of the CPR Land? [89] Bairn and Greenmore submit that the Court may utilize its equitable jurisdiction to provide them with a “lasting solution” totheir needs for the CPR Land. However, the Originating Application does not identify the basis for an equitable claim. No particulars areprovided. No authority is offered in support of this request. No principles are identified to guide the Court in exercising such an allegedpower. [90] In Condo Plan 7810477, a similar request was directed to this Court.

Justice Paperny, at paras 56-57, declined to grant reliefbecause no authority was offered in support of such an equitable claim and the effect would have been to abrogate the establishedproperty rights of the respondent landowner. [91] Equitable and unregistered interests in land are not wholly prevented by the Torrens land registration system embodied in theLand Titles Act, RSA 2000, c L-4: Passburg Petroleums Ltd v Landstrom Developments Ltd, 1984 ABCA 78 at paras 12-14, leave toappeal to SCC refused [1984] 2 SCR viii.

Section 61(1) of the Act contemplates various overriding interests, including at subsection (f):“any right of way or other easement granted or acquired under any Act or law in force in Alberta.” Equitable easements arising throughproprietary estoppel, for example, are possible: see generally Cowper-Smith v Morgan, 2017 SCC 61; Young v Beck, 2017 BCCA 248;Nelson v Stelter, 2007 ABQB 552, reversed on other grounds in Nelson.

[ 92 ] Even if equitable jurisdiction is available, I am not satisfied that such a claim can be made in these circumstances by means of an Originating Application. Rule 3.2(2) of the Alberta Rules of Court, Alta Reg 124/2010 directs that a Statement of Claim must be used to start an action, unless “there is no substantial factual dispute” (among other factors). Here, t he equitable claim is not properly pleaded and particularized, so the facts essential to the claim cannot be determined.

Consequently, I cannot assess whether no substantial factual dispute exists. [ 93 ] Furthermore, the Gaberts have property rights over the Gabert Farm, subject to an express and limited grant of easements. The justification for imposing an additional right-of-way on the Gabert Farm rather than some other adjoining landowner is not explained. The legal foundation for reducing the Gaberts’ proprietary interests is not adequately identified. [ 94 ] Interference with the Gaberts’ property rights is also seemingly premature.

They have offered to provide a limited right-of- way over the farmland to permit some access to the CPR Land. Recreational use of the property may be facilitated on that basis. More extensive access might be available through the Gaberts or other adjacent property owners for the right price. The evidence does not demonstrate that Bairn and Greenmore have exhausted negotiated options. [ 95 ] I therefore decline to interfere with the Gaberts’ property rights based on the ill-defined claim. If Bairn and Greenmore have a claim, they may proceed by way of an action after filing a Statement of Claim.

Conclusion [ 96 ] The application for a declaration is dismissed. [ 97 ] If the parties cannot settle the costs of this application, they may provide written submissions by letter within 30 days. Heard on the 12 th day of April and the 17 th day of May, 2022. Dated at the City of Edmonton, Alberta this 11 th day of October, 2022. Kevin Feth J.C.K.B.A. Appearances: Kevin D. Scott First West Law LLP for the Applicants Patrice Brideau Stringam LLP for the Respondents