2013 NBCA 74, 2013 NBCA 74

COURT OF APPEAL OF NEW BRUNSWICK 66-12-CA JEROME BLAKE, GAYLIE BLAKE, LAURA A. SNELLING, SUSAN M. BLAKE and SHERRYL L. STANLEY APPELLANTS JEROME BLAKE, GAYLIE BLAKE, LAURA A. SNELLING, SUSAN M. BLAKE et SHERRYL L. STANLEY APPELANTS - and - - et - JOSEPH LAURIE RICHARD, CAMILLE RICHARD and MARIE JEANNITA RICHARD RESPONDENTS JOSEPH LAURIE RICHARD, CAMILLE RICHARD et MARIE JEANNITA RICHARD INTIMÉS Blake et al. v. Richard et al., 2013 NBCA 74 Blake et autres c.

Richard et autres, 2013 NBCA 74 CORAM: The Honourable Justice Larlee The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: April 26, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 26 avril 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 143 Décision frappée d’appel : 2012 NBBR 143 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 29, 2013 Appel entendu : Le 29 octobre 2013 Judgment rendered: December 19, 2013 Jugement rendu : Le 19 décembre 2013

Counsel at hearing: For the appellants: Alan D. Schelew For the respondents: Jacques J. Gauthier Avocats à l’audience : Pour les appelants : Alan D. Schelew Pour les intimés : Jacques J. Gauthier THE COURT The appeal is dismissed with costs of $2,500. The following is the judgment delivered by THE COURT [ 1 ] The appeal concerns a dispute regarding a right of way to property owned by the parties who are neighbouring lot owners located in Caissie Cape, N.B. Caissie Cape is on the east coast of the province and runs directly to the shore of Northumberland Straight.

The appellants claim that the respondents and their predecessors in title have abandoned and relinquished any interest they may have had in the right of way identified as parcel “X”. In the alternative, they claim any interest the respondents may have had in that parcel had been extinguished by lost modern grant or prescription.

The trial judge found the respondents and their predecessors in title had not abandoned or relinquished, by their actions and/or inactions, any interest that they may have had in the right of way. [ 2 ] With respect to whether the right of way has been extinguished, the trial judge assessed the evidence of the witnesses, and made findings of fact that are supported by that evidence. He interpreted and applied the doctrine of abandonment, the law of prescription and lost modern grant, and the doctrine of unity of title.

The appellants’ strongest argument, to the effect that the right of way was extinguished by abandonment because the respondents’ predecessors in title had not used or maintained the right of way, is without merit (see Crowther v. Shea , 2005 NBCA 97 , 292 N.B.R. (2d) 97, at para. 6 : mere non-use of a right of way is not sufficient to support a finding of abandonment).

We are unable to discern any error that would justify appellate intervention, and in fact, are in substantial agreement with the reasons given by the judge on that issue. [ 3 ] The only other issue to be resolved, raised as a nuisance issue, is whether the respondents were entitled to have erected steps to the beach from the right of way. The trial judge found they were. The right of way described in

Schedule A to the pertinent deed dated September 17, 2004, provides a metes and bounds description and says “to the shore”. Historically, the right of way had been used as a road, but erosion changed that use. No steps had been used to access the shore from that location until the respondents erected them in 2009. This is not a case in which the erection of steps is an obstruction to the intended use of the right of way or a means to unilaterally reduce the territorial scope of the right of way enjoyed by the appellants. In Voye v.

Hartley , 2002 NBCA 14 , 247 N.B.R. (2d) 128, Drapeau J.A. (as he then was) stated: It is trite law that only a “substantial interference” by the owner of the servient tenement with the enjoyment by the owner of the dominant tenement of the right of way is actionable. In West v. Sharp , [1999] E.W.J. No. 2298, Mummery L.J. defines what is meant by

“substantial interference”, at paragraph 35: Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part.

He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him ... [...] Whether a particular activity amounts to a substantial interference is not a question of law but one of fact. [para. 25] [ 4 ] We have not been persuaded that the construction of the steps constitutes a substantial interference with the appellants’ existing proprietary right: the respondents are gaining access to the shore from the existing right of way.

The trial judge made a finding of fact to which we must defer. [ 5 ] We, therefore, dismiss the appeal and order costs of $2,500. ____________________________________ M.E.L. LARLEE, J.A. _____________________________________ B. RICHARD BELL, J.A. ______________________________________ KATHLEEN A. QUIGG, J.A.