2017 NBCA 42, 2017 NBCA 42

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 41-16-CA PAUL BOURGEOIS APPELLANT PAUL BOURGEOIS APPELANT - and - - et - RALPH EDWIN PRITCHARD, JANET ELIZABETH PRITCHARD, GARY MORRISON WARD, MYRNA IRENE WARD, MARY JILL CLIFFORD, FRED CLIFFORD, JENNIFER MARY PENDLETON, BRIAN STACEY BELL, DAWN MARIE BELL, KATHY LYNNE PITRE, TAMARACK LANE SHEDIAC ROAD ASSOCIATION INC.

RESPONDENTS RALPH EDWIN PRITCHARD, JANET ELIZABETH PRITCHARD, GARY MORRISON WARD, MYRNA IRENE WARD, MARY JILL CLIFFORD, FRED CLIFFORD, JENNIFER MARY PENDLETON, BRIAN STACEY BELL, DAWN MARIE BELL, KATHY LYNNE PITRE, TAMARACK LANE SHEDIAC ROAD ASSOCIATION INC. INTIMÉS Bourgeois v. Pritchard et al., 2017 NBCA 42 Bourgeois c.

Pritchard et autres, 2017 NBCA 42 CORAM: The Honourable Justice Green The Honourable Justice Baird The Honourable Justice French CORAM : l’honorable juge Green l’honorable juge Baird l’honorable juge French Appeal from a decision of the Court of Queen’s Bench: June 1, 2016 Appel d’une décision de la Cour du Banc de la Reine : le 1 er juin 2016 History of case: Decision under appeal: 2016 NBQB 103 Preliminary or incidental proceedings: Historique de la cause : Décision frappée d’appel : 2016 NBBR 103 Procédures préliminaires ou accessoires : Appeal heard: October 27, 2016 Appel entendu : le 27 octobre 2016

Judgment rendered: September 28, 2017 Reasons for judgment by: The Honourable Justice French Concurred in by: The Honourable Justice Green The Honourable Justice Baird Jugement rendu : le 28 septembre 2017 Motifs de jugement : l’honorable juge French Souscrivent aux motifs : l’honorable juge Green l’honorable juge Baird Counsel at hearing: For the appellant: Michel C. Poirier For the respondents: Christopher J. Stewart and Catherine LeBlanc THE COURT The appeal is dismissed with one set of costs of $5,000 payable by the appellant. Avocats à l’audience : Pour l’appelant : Michel C.

Poirier Pour les intimés : Christopher J. Stewart et Catherine LeBlanc LA COUR L’appel est rejeté avec dépens de 5 000 $ payables en une seule masse par l’appelant . The judgment of the Court was delivered by FRENCH, J.A. I. Introduction [ 1 ] This appeal concerns a property dispute over access to the shore at Cornwall Point, Shediac, New Brunswick and to the private lanes that lead to the shore. The dispute has drawn in a large number of property owners in the small community, some as parties, others as deponents of affidavits submitted as evidence. At issue is the construction of a right of way granted by deed.

Also in issue is the appellant’s claim to a right of way by prescription. II. Background [ 2 ] The residential development of Cornwall Point began in the 1930s when its owner started leasing a number of

small lots as part of a summer community. Over time, primarily after new owners acquired Cornwall Point in 1961, the grant of leases ended and the fee simple title to all of the lots was sold. Today, many of the properties contain year-round homes. At the root of the appellant’s position is his assertion that he and other property owners at Cornwall Point continue to possess the same rights of access to the shore and the private lanes that previously existed as part of the development scheme when Cornwall Point was a leasehold community.

It is common ground the old 20 year leases expressly gave lessees a right of way over all the roads and lanes at Cornwall Point. However, the deeds conveying the fee simple title to the lots sold grant a right of way that is expressed in terms which are not so broad. It is a right of access “to the lot of land hereby conveyed and more particularly set out and shown on the said plan”.

Neither the leases nor the deeds grant an express right to use the shore (with one exception, a deed granted in 1956). [ 3 ] Cornwall Point is a narrow peninsula of land that extends into Shediac Harbour, at the mouth of the Scoudouc River. A reproduction of a map, prepared by Service New Brunswick, and showing the peninsula in the centre, is attached as Appendix “A”. As the map indicates, it is not a survey plan and it does not show all the original lots at Cornwall Point.

However, the map illustrates current parcels of land and, since it is much clearer than reproductions of the original 1934 Plan identifying the lots and lanes (or the 1949 amendment of that Plan), it is sufficient to assist in understanding the layout of the parties’ lots and the lanes that lead to the shore. [ 4 ] The map shows the end of the peninsula pointed north (toward the top of the map). The base of the peninsula, where it is attached to land, is south (the bottom of the map).

Naturally, there is water on the three sides of the peninsula but it appears the best beach or shore is at the end of the peninsula and on its easterly side, along the Scoudouc River (the right side of the peninsula). Running north, from the base of the peninsula to its end, is Evergreen Drive (approx. 15 meters wide and coloured dark on the map). It was a private access road until 2006, when it was acquired by the Town of Shediac. The first deed to mention the road, in 1956, described it as “the main driveway leading through Cornwall Point”. It is the only public road through Cornwall Point.

Branching off Evergreen Drive, at what appear to be right angles, are seven parallel short lanes leading to the shore of the Scoudouc River. At approximately six meters wide, these lanes are less than half the width of Evergreen Drive. The seven lanes appear on the original 1934 Plan of Cornwall Point. Until sometime in the 1960s, they were simply known as lanes 1 through 7, the lane at the bottom being number 1 and the lane at the top being number 7. The lane at the top of the peninsula (coloured dark on the map) is now a public road, being an extension of Evergreen Drive.

Below that lane, in order, from the end of the peninsula, are the following private lanes: Tamarack Lane (coloured dark on the map), Laurel Lane, Linden Lane, Spruce Lane, Cherry Lane and Chestnut Lane. [ 5 ] The appellant, Paul Bourgeois, owns waterfront property at Cornwall Point. His land is the large parcel located at the end of the lane that is now Evergreen Drive, to the south. Ten of the respondents also own waterfront property, all south of Mr. Bourgeois’ property. Collectively, Mr.

Bourgeois and the respondents own seven of the eleven waterfront lots on the east side of Cornwall Point, south of Evergreen Drive. Why all of the waterfront owners are not respondents is not clear. The remaining respondent, Tamarack Lane Shediac Road Association Inc., owns Tamarack Lane. Title to the five other private lanes was not sold and remains with the persons who acquired ownership of Cornwall Point in 1961. The owners of these residual lands (the “Residual Owners”) are not party to this litigation. [ 6 ] In recent years, the owners of the waterfront lots, including Mr.

Bourgeois and the respondents, built seawalls which run along the eastern shore of Cornwall Point. These seawalls extend past or over the waterfront end of Tamarack Lane and the five other private lanes that lead to the Scoudouc River . Some are made of concrete and are up to four or five feet high. Mr. Bourgeois claims the respondents’ seawalls interfere with his ability to access the lanes and use the shore of the river. Additionally, he maintains the respondents have essentially annexed the east end of the private lanes, where the lanes pass between their lots to get to the river.

He claims trees and shrubs on this portion of the lanes act as barriers to their use. Mr. Bourgeois claims the respondents have interfered with his efforts to exercise his right to access the shore and the lanes. At one point, the police became involved. No more will be said of that evidence as it does not affect the matters at issue in this appeal. [ 7 ] Mr. Bourgeois’ Notice of Application seeks a declaration that he has a right of way: (i) “to access and use the shore of the Scoudouc River, as claimed”; and (ii) “over the lanes of the Cornwall Point Subdivision, as claimed”.

His application also seeks an order requiring the respondents to remove the seawalls and other obstacles impeding access to and use of the shore and an order directing the respondents to desist from harassing or interfering with his access to the lanes or shore. He claims the respondents have interfered with the exercise of his right to use all six of the private lanes and the shore of the Scoudouc River. [ 8 ] The respondents deny Mr. Bourgeois has, either by deed or by prescription, a right of way over the private lanes or the shore above the ordinary high water mark.

They admit he possesses the same rights any member of the public has to use the shore owned by the Crown – the shore of the Scoudouc River below the ordinary high water mark. The respondents maintain the title to Mr. Bourgeois’ property, like the title to their and other lots at Cornwall Point (with one exception), provides no express right to access or use the shore and it includes only a right of way to his property, via the private lane that leads to his property, not a general right over all the lanes at Cornwall Point. In fact, they submit Mr.

Bourgeois’ right of way is redundant since, in 2006, the private lane leading to his property became a public road, Evergreen Drive. In connection with Mr. Bourgeois’ claim to a right of way to the shore and lanes, by prescription, the respondents dispute the factual basis for his claim.

[ 9 ] Practically speaking, the positions advanced by Mr. Bourgeois and the respondents have repercussions for other property owners at Cornwall Point. Some (whose properties are not on the waterfront) have provided affidavits in support of Mr. Bourgeois’ claims. None are parties. At a minimum, they claim an ability to use the full length of the private lane adjacent to their property, permitting them to pass to and from the shore.

It appears some respondents interpret the deeded right of way as limited to using an adjacent private lane, from Evergreen Drive, only to the extent necessary to access the property, and not to use the end of the lane near the shore. However, it appears others view the right of way as including an ability to use the full length of an adjacent private lane to pass to and from the shore .

Interestingly, when the Residual Owners transferred their interest in Tamarack Lane to the Tamarack Lane Shediac Road Association Inc. in 2013, this issue was clarified as the Residual Owners required that the owners of property on Tamarack Lane have the right to use Tamarack Lane to access the shore. The evidence suggests the Association was established to acquire Tamarack Lane from the Residual Owners, primarily for the benefit of property owners on the lane.

They wanted it to continue as a private lane (and avoid having it become a public road which would allow access to the general public) and to clarify access issues. It seems an elegant solution to achieve these objectives. [ 10 ] In his reasons for dismissing the application, the judge identified 12 questions (or issues) relating to Mr. Bourgeois’ claims. Flowing from this were two key determinations which are the focus of this appeal. [ 11 ] First, the application judge determined the express right of way granted with Mr.

Bourgeois’ property did not provide a right of way over all the lanes at Cornwall Point or a right of way to access or use the shore. [ 12 ] Second, he was not satisfied Mr. Bourgeois had established the right, by prescription, to use the shore of the Scoudouc River above the ordinary high water mark. He also concluded he could not determine Mr. Bourgeois’ claim to have a prescriptive right over all of the private lanes. [ 13 ] The application judge was not persuaded the respondents’ seawalls interfered with Mr. Bourgeois’ right to use the shore. He did not accept Mr.

Bourgeois’ assertion the respondents’ seawalls encroach on Crown land, below the ordinary high water mark of the river. As well, he did not accept Mr. Bourgeois’ assertion the respondents’ “waterfront” lots do not extend to the ordinary high water mark and, as a consequence, there is a “buffer” or strip of land between the respondents’ lots and the Crown owned land (below the ordinary high water mark). Mr. Bourgeois maintains he has a right to use this strip of land/shore, along with all the other property owners at Cornwall Point.

The judge further concluded that, if he were wrong, any such land would be owned by the Residual Owners and, since they were not parties, he could not determine Mr. Bourgeois’ claim to a prescriptive right to that land. Similarly, he concluded he could not determine Mr. Bourgeois’ claim to a prescriptive right over the lanes since the Residual Owners were not parties. In addition, the Crown, as the owner of the shore below the ordinary high water mark, was not a party to his application.

Finally, the judge concluded there was a substantial dispute of fact regarding the use of the lanes, as evidenced by the competing affidavits filed by the parties, and Mr. Bourgeois’ claim to a right of way by prescription over all the lanes could not be determined on the hearing of the application; a trial would be required. [ 14 ] Mr. Bourgeois appeals this decision. For the reasons that follow, I would dismiss the appeal. III. Grounds of Appeal and Notice of Contention [ 15 ] Mr. Bourgeois’ Notice of Appeal identifies a number of grounds.

They assert the judge’s decision reflects: 1. an error of law and a significant misapprehension of the evidence, “resulting in the decision being wrong”; 2. a palpable and overriding error in findings of fact and in the application of the law to those findings; 3. errors in findings of fact and application and

interpretation of the law regarding: (

i) the existence of easements and rights of way, as well as the scope and extent of the legal rights arising from easements and rights of way; (ii) the existence of prescriptive rights to easements and rights of way, as well as the scope and extent of the legal rights which arise from acquired prescriptive rights, easements and rights of way; and (iii) the dimensions of the respondents’ lots, as established by Plans 684 and 12347; and 4. an error in failing to refer to, and appearing to disregard, the only two expert reports submitted on the application, being the Aerial Photo

Interpretation of the Cornwall Point Report of Curt Speight and the Ilbert Newcomb N.B.L.S. Survey Plan completed on

August 24, 2015. [ 16 ] In his written submission, Mr. Bourgeois advised that, to avoid duplication, he would deal with the grounds of appeal collectively, and he addressed what he submitted are the errors in the analysis of the application judge. I will address this approach further below. [ 17 ] In their Notice of Contention, the respondents submit the decision of the application judge ought to be affirmed on grounds in addition to those given by the judge, that is: an adverse inference should be drawn from the unexplained failure of Mr.

Bourgeois’ expert, a surveyor, to provide an opinion on the location of the ordinary high water mark adjacent to the respondents’ properties, given that Mr. Bourgeois had obtained an order (under Rule 35 of the Rules of Court ) directing the respondents to permit his expert access to their properties, for the purposes of determining “the location of the ordinary high water mark along the beach”. IV. Standard of Review [ 18 ] Although Mr. Bourgeois’ grounds of appeal include an allegation the application judge erred in law and in his

interpretation of the law, no such errors were identified. His remaining grounds, alleging error of mixed law and fact and/or a misapprehension of the facts, attract review on a palpable and overriding basis (since a legal error is not submitted to be extricable from the judge’s analysis and conclusion). See Lemay v. Peters , 2014 NBCA 59 , 425 N.B.R. (2d) 336 : As with every case on appeal, the trial decision must be assessed through the lens of the standard of review that governs each question raised.

It has been stated time and again that the role of the appellate court is not to retry the case or to substitute its own findings for those of the trial judge.

These days, an overabundance of authority stands for the following propositions, which have now become trite law: (1) findings of law are to be assessed on a standard of correctness; (2) a finding of fact is entitled to deference and will only be reversed if the result of a palpable and overriding error; and, (3) findings of mixed fact and law, that is the application of a legal standard to a set of facts in order to arrive at an ultimate conclusion, are also entitled to deference and are reviewable on the same standard as findings of fact unless a legal error can be extricated. [para. 31] V. Analysis [ 19 ] Mr.

Bourgeois claims the application judge erred in failing to find: (

i) the title to his property includes a right of way to use both the shore of the Scoudouc River and all of the remaining private lanes that run through Cornwall Point; and/or (ii) he has a right of way, by prescription, to the shore and the private lanes. Given Mr. Bourgeois’ assertion that the scheme of the leasehold development of Cornwall Point is material to both an

interpretation of the right of way granted by deed or transfer, and to his assertion there is a “buffer” or strip of land along the shore (between the land owned by the respondents and the ordinary high water mark), any analysis of the determinations made by the application judge must begin with the relevant evidence of the title to and development of Cornwall Point. A. Cornwall Point [ 20 ] In 1810, George and Henry Cornwell acquired Cornwall Point (formerly Cornw e ll Point), as part of a much larger grant from the Crown. The lands are described as being bounded by the Scoudouc River.

The property description is, in part, as follows: […] thence along the south line of number four East until it meets the Westerly Bank or shore of Scadouk River aforesaid at or near a marked pine tree, thence following the several courses of the said Bank or Shore of the said River downstream to its junction with the Westerly Bank or shore of the said Shediac Harbour… [Emphasis added.] [ 21 ] The application judge concluded the Crown grant gave the Cornwells ownership to the ordinary high water mark of the Scoudouc River. While Mr.

Bourgeois initially alleged the Crown grant did not convey title to the ordinary high water mark, on appeal this was not an issue. The Scoudouc River is tidal at Cornwall Point and, as the application judge noted, when a grant contains a boundary defined by the shore of a body of water, which is tidal, the grant prima facie extends only to the ordinary high water mark. He said:

In Black v. Norris and Registrar General of Land Titles , 2012 NBQB 346 , the Court cited Gerard La Forest in explaining boundaries of Crown Grants: In his treatise Water Law in Canada – The Atlantic Provinces , Gerard V.

La Forest, Q.C. states at page 239 that when a boundary is defined by the shore, “[i]f it is tidal, whether it be the sea or the tidal river, lake or stream a grant of land adjoining the water prima facie extends only to the ordinary high water mark.” The author continues at page 240: Though the rule generally applies, the description or the circumstances may lead the court to a different construction.

Ordinarily, monuments on the shore referred to in the description will be looked on as marking the line to, rather than along the shore, but the description or monuments may show an intention that fixed boundaries shall govern, not the fluctuating line of the shore… [para. 28] [ 22 ] Having concluded the Cornwells’ land extended to ordinary high water mark, the application judge naturally recognized the Crown retained ownership of the land below the ordinary high water mark. This is not disputed on appeal. [ 23 ] In 1934, A.

Mugridge, a successor in title to the Cornwells’ land, and the then owner of Cornwall Point, caused a “PLAN SHOWING LOTS on Property of A. Mugridge at Cornw e ll Point Scoudouc River” to be drawn. There is no dispute that the lands owned by A. Mugridge extended to the ordinary high water mark of the Scoudouc River. The plan, dated May 1934, was registered as number 684 (the “1934 Plan”). It identifies 35 small lots. [ 24 ] In 1949, A. Mugridge added 24 additional lots to Cornwall Point, by using a “retraced” version of the 1934 Plan and adding lots 35 to 59.

This revised plan, dated November 1949, was not registered until 30 years later, on August 28, 1979, as Plan 12347 (the “1949 Plan”). For the most part, A. Mugridge leased the lots on these plans. [ 25 ] In 1961, A. Mugridge sold Cornwall Point in its entirety to Dr. Barnes S. Bell and Arthur Cumming. While they extended or granted some leases, ultimately, they sold the fee simple to all the individual lots. They, or their heirs, are the Residual Owners, possessing title to any lands not specifically conveyed. [ 26 ] Featuring prominently in Mr.

Bourgeois’ claim that the right of way granted with his property provides him with a right of passage over all the lanes in Cornwall Point is the difference between the right of way granted in the leases (primarily by A. Mugridge) and the right of way granted in the deeds (primarily by Dr. Barnes S. Bell and Arthur Cumming).

The leases describe the lessee as possessing, with some minor variation, a right of way over “the road-ways or Avenue laid out or delineated on said plan of lots”, which is accepted as including the main access road, being the north/south portion of what is now known as Evergreen Drive, and the original seven private lanes. The grant of right of way in a 1956 deed from A. Mugridge very clearly expresses that the right of way is over all roads and lanes at Cornwall Point. However, all subsequent deeds, including the deed to the property now owned by Mr.

Bourgeois, grant a right of access “to the property conveyed” as more particularly shown on the plan. [ 27 ] The right of way description contained in the leases granted by A. Mugridge is as follows: TOGETHER WITH a right of way in common with the lessor and the tenants or occupants of adjoining premises and any other desirous of using the same the consent of the lessor through and over the road-ways or Avenue laid out or delineated on the said plan of lots . [Emphasis added.] [ 28 ] Before setting out the property and right of way descriptions contained in the deeds by Dr. Barnes S.

Bell and Arthur Cumming, I will address two deeds made by A. Mugridge. Mr. Bourgeois relies on these conveyances to support his submissions respecting the scheme of development at Cornwall Point and the rights of way he says were intended to be granted in the deeds later conveyed by Dr. Barnes S. Bell and Arthur Cumming. They are A. Mugridge’s deeds: (

i) made in 1949, to the so-called tennis court lot; and (ii) made in 1956, to Block 3 (being Lots 34, 35, 40, 41, 52, 53 and 56 – this is the block of lots now owned by the respondents, Brian Stacey Bell and Dawn Marie Bell).

[ 29 ] The 1949 deed, to the tennis court property, is to Dr. Barnes S. Bell and two others, as trustees for the Cornwell Community Club Association. It recites that the Club wishes to have a recreation centre to conduct sports. If the Club goes out of existence, the land is to revert to A. Mugridge. Mr. Bourgeois submits that what is notable about this deed is the fact there is no express right of way to the property; he submits an express right of way was not necessary because it was clear the residents at Cornwall Point had a right of passage over all lanes.

It is not disputed that, in 1949, all occupants under leases had access to all lanes. Parenthetically, in 1983, the property was conveyed to the Cornwell Point Community Association Inc. and nothing has ever been built on this land. [ 30 ] A. Mugridge’s 1956 deed to Orpah Dobson is unique at Cornwall Point. Mr. Bourgeois relies on the descriptions in this deed to support his submission that A. Mugridge: (

i) intended to retain ownership of a strip of land along the waterfront, to be used by all the residents of Cornwall Point (since the parcel conveyed to Orpah Dobson is described as extending only to the top of the bank of the Scoudouc River, not to the ordinary high water mark); and (ii) intended all who resided at Cornwall Point, not just lessees, to have a right of passage over all lanes, including those whose residents had acquired ownership of their lots.

The deed describes the waterside boundary of the property conveyed (Block 3, including Lots 34, 35, 40, 41, 52, 53 and 56) as being at the top of the bank of the Scoudouc River. The deed also grants a right of access to all lanes shown on the plan. This right of access is expressed in terms that are more broad and clear than those contained in the leases granted by A. Mugridge. Finally, the deed grants a right to use the shore of the river. This is a right that is not expressly conveyed in either the leases or the deeds.

The relevant portions of the Orpah Dobson deed are as follows: Beginning at a point on the Eastern side of the top of the Bank of Cornwall Point near the Scoudouc River a distance of 270 feet from the point where the Northern boundary of the land of Daniel Leger intersects the Western bank of the Scoudouc River , thence Westerly following the Northern boundary of a driveway about 290 feet to the main driveway leading though Cornwall Point, thence Northerly following the Eastern boundary of the said main driveway 112 feet to another driveway, thence Easterly following the southern boundary of the last mentioned driveway about 318 feet to the top of the bank of Cornwall Point near the Scoudouc River , thence Southerly following the top of the bank of Cornwall Point to the place of beginning, the lot hereby conveyed being

section three (3) as delineated on a plan of lots drawn by J.A. McDougall, land surveyor, dated May 1949, and consisting of lots numbered 34, 35, 40, 41, 52, 53 and 56 on the said plan; TOGETHER with the shore rights and privileges on the Scoudouc River in common with the Grantors and the tenants and occupants of adjoining lots ; TOGETHER also with the right or way over all the roads, streets and avenues leading to or through Cornwall Point, in common with the Grantees and the tenants and occupants of lots on Cornwall Point . […] [Underlined in original.] [ 31 ] After Dr. Barnes S.

Bell and Arthur Cumming acquired A. Mugridge’s interest in all of Cornwall Point, in 1961, they renewed or granted a small number of leases but ultimately all the lots were sold. While their leases contained a right of way over all lanes at Cornwall Point, in terms similar to the leases previously granted by A. Mugridge, their deeds did not. Instead, as previously mentioned, the express grant in the deeds was a right of way to the property conveyed, as more particularly shown on the plan. [ 32 ] An example of the property descriptions and rights of way granted in deeds made by Dr. Barnes S.

Bell and Arthur Cumming is contained in the 1982 deed in which Arthur Cumming transferred his interest in 19 lots to Dr. Barnes S. Bell. It appears from this deed, and others about the same time, they were dividing the ownership of their remaining lots at Cornwall Point. In any event, this deed includes the transfer of the three lots which would later be consolidated to form Mr. Bourgeois’ property, namely, Lots 11, 12 and 13.

The description to the waterfront lot, Lot 11, is as follows: ALL that certain lot, piece or parcel of land , lying and being at Cornwell Point, in the Parish of Shediac, in the County of Westmorland and Province of New Brunswick, as shown on a plan entitled “Plan Showing Lots on Property of A. Mugridge at Cornwell Point, Scoudouc River” dated May 1934, and prepared by D. C. MacDougall, N.B.L.S. and filed in the Registry Office for the County of Westmorland on the 28 th day of August, A.

D., 1979, by the Number 12347, and being more particularly bounded and described as follows : COMMENCING at the point of intersection of the Eastern boundary line of Lot Number 12 and the Southern side line of a certain right of way as shown on the said plan; thence from the point of beginning so – determined in a Southerly direction and along the said Eastern

boundary line of Lot Number 12 a distance of Ninety Feet (90’) more or less or until the Northern boundary line of Lot Number 20, as shown on the said plan, is reached; thence in an Easterly direction and along the said Northern boundary line of Lot Number 20 a distance of Sixty-Seven Feet (67’) more or less or until the median high water mark of the Western bank of the Scoudouc River is reached; thence in a generally Northerly direction and along the various courses and windings of the said median high water mark of the Scoudouc River to the Southern side line of the aforementioned right of way; thence in a Westerly direction and along the said Southern side line of such right of way a distance of One Hundred Feet (100’) more or less to the place of beginning.

BEING and being intended to be Lot Number 11 as shown on the said plan, and being in the use, occupation and possession of one Robert Bell. TOGETHER WITH a right of way of access, ingress and egress to the lot of land hereby conveyed and more particularly set out and shown on the said plan . [Emphasis added.] [ 33 ] The right of way granted in connection with this parcel is the same as that granted in other deeds made by Dr. Barnes S. Bell and Arthur Cumming. The language used is not as broad and encompassing as that used to describe the right of way granted under the prior leases or the A.

Mugridge deed to Orpah Dobson. [ 34 ] Also, the parcel has a metes and bounds description, unlike the leases which referred solely to the lots identified on the 1934 Plan and the 1949 Plan. The parcel is described as being bounded by the river. The distance to that waterfront boundary is stated to be “a distance of Sixty-Seven Feet (67’) more or less or until the median high water mark of the Western bank of the Scoudouc River is reached ”. The boundary itself is described as running “along the various courses and windings of the said median high water mark of the Scoudouc River”.

Following the metes and bounds description is a paragraph which states “Being and intended to be Lot Number 11 as shown on the said plan”. [ 35 ] Similar to the metes and bounds description of Lot 11, the deeds from Dr. Barnes S.

Bell and Arthur Cumming to the properties now owned by the respondents (other than the Bells, who acquired the Orpah Dobson lands) describe the boundary along the shore in substantially the same language: • Kathy Pitre’s title describes the shoreline boundary as “along the various courses of the Scoudouc River”; • Jennifer Pendleton’s title describes the shoreline boundary as “along the various courses of the Scoudouc River”; • Gary and Myrna Ward’s title describes the shoreline boundary as “along the various courses and windings of the median high water mark of the Western bank of the Scoudouc River”; • Mary Jill Clifford’s title describes the shoreline boundary as “the various courses and windings of the said median high water mark of the Western bank of the Scoudouc River”; • Janet and Ralph Pritchard’s title describes the shoreline boundary as “following the various courses and windings of the median high water mark of the Scoudouc River”. [ 36 ] In support of Mr.

Bourgeois’ position that the respondents’ lots do not extend to the ordinary high water mark, he submits the grantors (Dr. Barnes S. Bell and Arthur Cummings) did not intend to convey land to the ordinary high water mark; he submits they intended to retain ownership of a strip of land above the ordinary high water mark and in front of the lots now owned by the respondents.

Further, he maintains the 1934 Plan and 1949 Plan do not show the waterfront lots as extending to the ordinary high water mark and it is the plan that governs the boundaries of the lots conveyed, not the metes and bounds description of those lots. These submissions are difficult to reconcile with Mr. Bourgeois’ position that the private lanes extend to the Crown owned land (below the ordinary high water mark). While not determinative of the issue, the 1934 Plan and 1949 Plan appear to show the end of the private lanes having the same boundary line as the waterfront lots. [ 37 ] While Dr. Barnes S.

Bell and Arthur Cumming sold all the lots identified on the 1949 Plan, it is

not disputed they did not convey, and thus they retained title to, any residual lands at Cornwall Point. This is acknowledged to include, at least, the private lanes and, fairly recently, the Residual Owners executed two Quit Claim Deeds to roadways and/or lanes at Cornwall Point. [ 38 ] In 2006, the Residual Owners executed a Quit Claim Deed in favour of the Town of Shediac in relation to Evergreen Drive. The deed describes the road as a remnant part of the lands conveyed to Arthur A. Cumming and Dr. Barnes S. Bell by Alvin L. Mugridge.

The Quit Claim Deed was made by Helen Cumming (per John David Cumming acting under her power of attorney) and Jeffrey Goodwin Bell and his spouse, Sylvia Louise Bell; it recites that they are the owners of Evergreen Drive and they wish to gift it to the Town. [ 39 ] In 2013, the Residual Owners executed a Quit Claim Deed in favour of the respondent, Tamarack Lane Shediac Road Association Inc., in relation to the “lane known as Tamarack Lane running from Evergreen Street east to the shore of the Scoudouc River …. as shown on Plan 12347 ”.

As in the Quit Claim Deed to the Town of Shediac, the deed describes the road, Tamarack Lane, as a remnant part of the lands conveyed to Arthur A. Cumming and Dr. Barnes S. Bell by Alvin L. Mugridge and it recites that the grantors (Helen Cumming and Jeffrey Goodwin Bell and his spouse, Sylvia Louise Bell) are the owners of Tamarack Lane. Interestingly, and insightfully, in relation to this dispute, the Quit Claim Deed requires “[a]ll residents on Tamarack Lane shall have access to the Scoudouc River at the east end of the lane”.

Worth mentioning as well is that the deed also requires “All Cornwall Point residents shall have access to Cornwell Point Community Association lands using Tamarack Lane”.

Although not the same as granting the Association an express right of way to its property (as none was granted in the 1949 deed), for all practical purposes, granting the owners at Cornwall Point a right of access to the Association’s property may achieve the same result and remedy that deficiency. [ 40 ] While not related to the respondents’ title, there was evidence one of the Residual Owners granted permission for the construction of the seawall across or in front of some of the private lanes. Also, there was evidence the Crown granted its approval to the construction of some of the seawalls. B.

Right of way to shore and/or lanes, by title [ 41 ] Mr. Bourgeois alleges the application judge erred in concluding that title to his property does not include a grant of right of way either to the shore or over all the private lanes at Cornwall Point. [ 42 ] The application judge found Mr. Bourgeois’ title documents do not grant a right to use the shore; he noted they do not make any mention of a right to the shore. Mr. Bourgeois submits the judge’s conclusion is a bare statement, a declaration without reasons. A contextual reading of his reasons indicates otherwise.

The judge canvassed the relevant evidence and his conclusion is, quite frankly, a statement of fact. There is no ambiguity. Mr. Bourgeois’ title does not purport to address rights to access or use the shore, independent of any right of way to use the lane(s). It is not disputed Mr. Bourgeois has a right to access the shore on his property and he possesses the same right as any member of the public to access the entire shore at Cornwall Point owned by the Crown, namely, that portion of the shore which is below the ordinary high water mark; however, there is no error in the application judge’s conclusion that Mr.

Bourgeois’ title does not grant an additional right to access or use the shore, as he claims. [ 43 ] The application judge rejected Mr. Bourgeois’ claim the right of way attached to his land includes a right of access over all the lanes at Cornwall Point. In submitting to this Court that the application judge erred, Mr. Bourgeois contends the judge’s reasons are inadequate and he re-emphasizes on appeal the arguments he made to the application judge. [ 44 ] Mr. Bourgeois’ Certificate of Registered Ownership describes his right of way as the same right of way found in the 1983 deed to Dr. Barnes S.

Bell and Evelyn S. Bell (No. 431838). The Certificate states: Place Name: Shediac Parish/County: Shediac/Westmorland Label of Parcel on Plan: Lot 91-1 Title of Plan: Amending Subdvision Plan Amending Lots 11, 12 & 13 on Plan 12347

A. Mugridge Subdivision Registration County: Westmorland Registration Number of Plan: 18502 Registration Date of Plan: 1991-11-28 Together with the benefit of a Right of Way as described in Deed 431838 to Dr. Barnes S. Bell and Evelyn S. Bell, registered in the Westmorland County Registry on 1983-03-30 in Book 881 at Page 120. [ 45 ] In deed 431838, to Dr. Barnes S. Bell and Evelyn S. Bell, the right of way forming part of the description to each of the lots now owned by Mr. Bourgeois (Lots 11, 12 and 13) is described in the attached

Schedule “A” as follows (as previously reproduced above): TOGETHER WITH a right of way of access, ingress and egress to the lot of land hereby conveyed and more particularly set out and shown on the said plan. [ 46 ] The application judge interpreted the right of way restrictively as a right to access the property conveyed, not a right over all the lanes shown on the plan.

He states: It is clear for this court that the applicant’s right of way is connected to and meant to allow “access, ingress and egress” to and from his own lot, nothing more. […] The court concludes in reiterating that the applicant has not proven that he would enjoy any rights of way on any of the private lanes of Cornwall Point and that would be grounded on the language of any documentation. [ 47 ] Mr. Bourgeois maintains that the conveyancing language in the body of the deed evidences an intention by the grantors in deed 431838 to convey a right of way over all the lanes.

This is distinct from the description of the property and right of way contained in

Schedule “A” to the deed. The conveyancing language relied on is as follows: The lands and premises more fully described in

Schedule “A” hereunto annexed and forming part of this Indenture. TOGETHER WITH all privileges and appurtenances thereto belonging, and also all the estate, right, title , dower, right of dower, interest, use, possession, property, claim and demand of the Grantors , of, in, to or out of the same and every part and parcel thereof .

TO HAVE AND TO HOLD the same unto the said Grantees, and the survivor of them, his or her heirs, executors and administrators and their or his or her assigns, to and for the use of the said Grantees and the survivor of them, his or her heirs, executors and administrators and their or his or her assigns forever […] [Emphasis in original.] The emphasis in the portion of the deed reproduced above comes from Mr. Bourgeois’ Notice of Application. [ 48 ] Mr.

Bourgeois also maintains that, by having regard to the surrounding circumstances, and in particular the scheme that existed when the lots were leased, the only reasonable construction of his right of way is one which grants a right over all the lanes at Cornwall Point. He submits that when a right of way refers to the roads and lanes shown on a plan, the right extends to all the roads and lanes on the plan, not only the lanes that abut the property or lead to the property. He relies on Ruck et al. v.

Van Alstyne et al., (ON CA), [1955] O.R. 738 (C.A.) (QL), and to R.N. Dawson Ltd. v. Trainor, [1996] P.E.I.J. No. 111(S.C. (T.D.)) (QL). [49] Mr. Bourgeois points out that in both Ruck and Dawson the court determined the right of wayunder consideration included a right of passage over all the private roads shown on the plan identified in the property description. Whilethis is an accurate statement, these cases do not stand for the proposition that this must necessarily be the result. In my opinion, bothcases turned on their facts and are distinguishable from this case.

In Ruck, the lot claiming the benefit of the right of way was on the rightof way shown on the plan and it was the only access to the lot. The court rejected the submission that the property owner was restrictedto using only that portion of the right of way which was necessary to access the property and concluded the property owner was entitledto the use of the full length of the adjacent right of way. In Dawson, the court was required to determine whether the grant of right of wayincluded a right of passage over all of the 66-foot wide private roadways running through a subdivision.

The roads on the plan capturedmore than one entry point to the subdivision, including entry from the shore of the Northumberland Strait. Also, the grant of right of waywas expressed in broad terms, giving, in the case of one deed, a right to “use […] all right-of-ways as shown on the said plan to theTrans-Canada Highway”. The court concluded the property owner was intended to have the benefit of a right over all of the ways shownon the plan. [50] The nature and extent of a right of way is determined by construing the language of the grant inthe context of the surrounding circumstances. In Voye and Page v.

Hartley, 2002 NBCA 14, 247 N.B.R. (2d) 128, Drapeau J.A. (as hethen was), writing for the Court, addressed the principles applicable to the construction of an express grant of right of way. He states: The following excerpt from Lord Justice Mummery's reasons for judgment in West v. Sharp, [1999] E.W.J.

No. 2298 at para. 34 (C.A.),online: QL (EWJ), encapsulates the principles that govern the construction of an express grant of right of way: The nature and extent of a right of way created by an express grant depends on the language of the deed of grant, construed in the contextof the circumstances surrounding its execution, including the nature of the place over which the right was granted. But a right of wayexpressly granted is not necessarily limited by the physical characteristics of the site of the easement at the time of the grant. This isborne out by Keefe v.

Amor [1965] 1 QB 334, where it was recognised by Lord Justice Russell that the language of the grant may be suchthat the topographical circumstances cannot properly be regarded as restricting the scope of the grant according to the language of it. See, as well, Mills v. Blackwell, [1999] E.W.J. No. 4256 at paras. 19-28 (C.A.), online: QL (EWJ). [para. 16] [51] Mr. Bourgeois submits, as a matter of

interpretation and based on the circumstances at the timethe grants by deed were made, it is reasonable to infer an intention to grant a right of access over all lanes, a right clearly enjoyed underall the leases and under the Orpah Dobson deed. He submits it is absurd to conclude that any lessee would acquire fee simple title to a lotthat had been leased and intentionally accept less rights. I do not accept this inference as being so clear or obvious. It cannot bepresumed that Dr. Barnes S. Bell and Arthur Cumming had an intention to preserve the same access to the lanes permitted under theleases made by A.

Mugridge. Also, it is difficult to accept that lessees, who acquired the fee simple title to a property previously leased,may so obviously be viewed as accepting less than was held by lease if the right of way by deed does not extend to all lanes. This isespecially so when it appears there was a plan by Dr. Barnes S. Bell and Arthur Cumming to sell all the lots and create multiple propertyowners throughout Cornwall Point.

While a more restrictive right of way may mean no longer having a right to access a lane that is notadjacent to the property previously leased, it would also mean fewer persons would have a right to use the lane on which the now ownedproperty was situate. Evergreen Drive is the main access road (as was the case before it became a public road) and the private lanes,which dead-end at the shore, are much more narrow and lead only to the few properties on each lane and the shore.

As the respondentspoint out, some lanes lead only to a waterfront property owned by one of respondents, others have only a few property owners on them.By the time the lots were sold, most in the 1980s, some of the private lanes appeared more like shared/common driveways than privateroads, like Evergreen Drive.

The desirability of restricting access to a private lane, shared only by a small number of property owners, isreflected in the record in relation to the evidence of the rationale for the creation of Tamarack Lane Shediac Road Association Inc. [52] Additionally, continuing the right of access which existed under the leases is not the onlyreasonable construction of the right of way granted by deed. Arguably, by describing differently the right of way conveyed by deed, itwould appear Dr. Barnes S. Bell and Arthur Cumming intended to grant a different right of way.

It would not have been difficult to usethe description previously used in the leases (or in the Orpah Dobson deed), had that been the intention. At the time the title wastransferred by deed, the difference in the description of the right of way should have been obvious, especially to those who acquired feesimple title to lots they possessed by lease. [53] On appeal, Mr. Bourgeois does not assert an error of law or principle. In essence, he restates thesubmissions he made to the application judge and alleges, in the totality of the circumstances, the judge’s

interpretation or constructionof the right of way is too narrow. The judge concluded the grant of right of way in favour of Mr. Bourgeois was a right to access his

property, not a right of passage over all private lanes. He concluded the words as “set out and shown on the plan” do not reflect an intention to confer a right of access to all lanes on the plan. Read in context, the application judge’s reasons reflect the conclusion that reference to the plan is to identify the location of the right of way to the lot conveyed – not to expand the right to include a right of passage over lanes that do not abut or lead to the lot conveyed. Mr.

Bourgeois has not persuaded me that this construction of the grant of right of way is a result of reversible error. [ 54 ] The issue of whether the right of way includes a right of passage over the full lane adjacent to the lot conveyed (permitting access to and from both Evergreen Drive and the river) is not before the Court; however, this will be addressed below. C. Prescriptive rights [ 55 ] After rejecting Mr. Bourgeois’ claim that a proper construction of the grant of right of way attached to his property includes a right to access all the private lanes and the shore, the application judge addressed Mr.

Bourgeois’ claim to have acquired such rights by prescription. [ 56 ] The judge concluded he could not determine Mr. Bourgeois’ claim to have a right of way, by prescription, over all the lanes at Cornwall Point, since the owners of the private lanes, the Residual Owners, were not parties to his application and the record evidenced a “substantial” dispute of fact which could not be determined by application and would require a trial. Mr. Bourgeois does not identify any error in the analysis leading to this conclusion. [ 57 ] There is no issue with Mr.

Bourgeois proceeding by Notice of Application to seek a declaration based on a determination of the scope of and limits to the right of way attached to his property, in the absence of any substantial dispute of fact. However, a determination of his claim to a right of way, by prescription, is something quite different in view of the substantial dispute of fact in relation to the evidentiary basis for his claim. As stated by Green J.A., writing for the Court, in Kinsella v.

New Brunswick Power Distribution and Customer Service Corporation et al. , 2013 NBCA 25 , 402 N.B.R. (2d) 323 : In proceeding by way of a Notice of Application, the respondents were seeking a determination of their rights, which required the

interpretation of both the right-of-way agreement and statutory provisions, and for an injunction which would allow them to exercise those rights unimpeded by the appellants. In my opinion, this situation ideally lent itself to the process provided for by Rule 16.04. The application judge was correct in coming to this conclusion, and in determining the absence of a substantial dispute of fact. In order to trigger the exercise of judicial discretion under Rule 38.09, a dispute over facts must not only be substantial, it must also be relevant to the legal issues before the court.

There being no error on the part of the application judge, this ground of appeal must fail. [para. 13] [Emphasis added.] [ 58 ] In my opinion, the judge did not err in concluding there is a substantial dispute of fact regarding the use of the lanes, evidence of which is essential to Mr. Bourgeois’ ability to establish a prescriptive right. As an aside, I note the judge observed that the evidence in favour of a right over all lanes, by prescription, was not strong. [ 59 ] The final substantive matter on appeal relates to Mr. Bourgeois’ claim to have a right of way, by prescription, over the shore.

The application judge dismissed this claim for a variety of reasons. [ 60 ] Mr. Bourgeois’ claim to a right of way to the shore is difficult to particularize. His position is easy to state in general terms. He claims a right, together with the other property owners at Cornwall Point, to access and use the shore. In his Notice of Application, he seeks a declaration that he has a right of way “to access and use” the shore. This claim is independent of his separate request for a declaration of a right of way “over” all the lanes (which lead to the shore).

His application does not define “the shore” nor does it identify the area of the shore he claims to be entitled to access and use. [ 61 ] Mr. Bourgeois’ initial position in the application was that the 1810 Crown grant to Cornwall Point did not extend to the ordinary high water mark, suggesting the Crown continued to own the shore above the ordinary high water mark, perhaps as high up the shore as the top of the bank or at the end of the vegetation. This is no longer an issue and there is no dispute the Crown only owns the shore that is below the ordinary high water mark. In fact, Mr.

Bourgeois’ claim to use the shore above the

ordinary high water mark is now based on the theory that there is a strip of land, above the ordinary high water mark and in front of the land owned by the respondents, which was reserved for use by all of the property owners at Cornwall Point. Mr. Bourgeois alleges this “buffer” along the shore was part of the Cornwall Point development scheme created by A. Mugridge. This strip of land, if it exists, would be owned by the Residual Owners who acquired Cornwall Point in 1961. In

summary, Mr. Bourgeois’ claim to use the shore above the ordinary high water mark, is dependent upon a finding that the respondents’ properties to not extend to the ordinary high water mark and there is a strip of land still owned by the Residual Owners, and, of course, his establishing a prescriptive right to access and use this land. [ 62 ] For clarity, I point out that Mr. Bourgeois’ claim to access and use of the “shore” does not assert a right over any shore which may be owned by the respondents.

It relates to both the Crown owned land below the ordinary high water mark and to the strip of land (above the ordinary high water mark) which he asserts is owned by the Residual Owners. Mr. Bourgeois maintains the respondents’ seawalls interfere with both of these rights. He claims the respondents’ seawalls extend beyond the boundaries of their land, alleging they extend so far as to encroach on the Crown’s land below the ordinary high water mark. [ 63 ] Mr. Bourgeois submits it was A.

Mugridge’s intention to reserve a strip of land above the ordinary high water mark for the benefit of all the residents of Cornwall Point, as evidenced by the 1956 deed to Orpah Dobson. This deed describes the waterside boundary as being at the top of the bank, not the ordinary or mean high water mark, and it expressly conveys a right of access to the shore. He submits that both of these evidence an intention to retain ownership of the shore. Mr.

Bourgeois maintains that, similarly, the respondents’ properties do not extend to the ordinary high water mark and their boundaries are limited to the size and dimensions of the lots shown on the 1934 Plan and 1949 Plan. [ 64 ] The application judge did not accept Mr. Bourgeois’ assertion that the respondents’ seawalls encroach on the Crown owned shore, below the ordinary high water mark, or that the respondents’ properties do not extend to the ordinary high water mark.

He concluded that prima-facie the respondents’ properties go to the ordinary high water mark, there is no strip or buffer of land between the land owned by the respondents and the ordinary high water mark, and the respondents’ seawalls are on their land.

The application judge concluded: The court can and does conclude and reiterate that: All the evidence, […] makes a prima-facie case in favor of all the respondents owning water-front lots, the eastern limits of which extend to the Scoudouc River O.H.W.M. and consequently the seawalls, the respondents have erected, would be contained within their respective lot descriptions. [para. 43] [ 65 ] Mr.

Bourgeois’ grounds of appeal assert the application judge erred regarding the “nature and extent of the respondents’ lot dimensions, as established by plans 684 and 12347” and in “failing to refer to and appearing to disregard” his expert evidence, the only expert evidence introduced. In asserting the application judge erred in failing to accept the respondents’ properties are limited to the dimensions shown on the 1934 and 1949 Plans, he maintains the judge failed to apply the principle that, in interpreting boundary lines, what governs are the boundaries of a lot as shown on a plan.

He submits the boundaries shown on a plan are determinative of the boundaries of a property conveyed by reference to a plan, outweighing any conflicting elements in a description of the property conveyed. He relies on the following comments made by McNally J. in Chandler v.

LeBlanc , 2008 NBQB 345 , 337 N.B.R. (2d) 385 : Further, it is well settled that in interpreting boundary descriptions, where a parcel of land is granted by a specific name or number which shows what land it contains, the parcel as identified is the governing feature in determining the boundaries despite any conflicting elements in the description. In The Law of Real Property , Anger & Honsberger, 2006 at paragraph 18:30.30 the authors summarize the applicable law relating to the

interpretation of boundaries in the following terms: The settlement of a boundary dispute may require the

interpretation of the boundary description. One governing principle of

interpretation appears to be that the intention of the original parties should be determined and implemented (unless that original intention has subsequently been altered in a way recognized by law, for example, through adverse possession, estoppel, or the establishment of a conventional line). Courts will attempt to determine the original intention of the parties by applying rules developed over the years which give more or less weight to various aspects of a boundary description.

Before examining these rules, however, it should be noted that where a lot or parcel of land is granted by a specific name or number and it can be shown what land the lot or parcel contains, then the lot or parcel is the governing feature despite any conflicting elements of the description . [Emphasis in original.] In the instant case, the deed from the respondents to Mrs. Chandler in 1978 and from Mrs.

Chandler’s estate to the applicant in 1990 clearly and unequivocally identify the lands being conveyed and intended to be conveyed by a specific metes and bounds description as well as by a specific lot number illustrated on an approved and registered subdivision plan which clearly shows what lands it contains.

Neither the metes and bounds description nor the parcel identified as lot #78-2 on Plan #11654 include the disputed lands extending from the northern boundary of the lot to the ordinary high water mark of the Northumberland Strait . That being the case, this is not a situation where it would be appropriate to consider, or to apply, the principle of

interpretation invoked by the applicant to interpret the description of the northern boundary of the property in such a manner as to extend it to the ordinary high water mark. Further, such an

interpretation would be contrary to the clear and stated intentions of the parties to the deeds, inconsistent with the metes and bounds description of the parcel and the boundaries as illustrated and identified in Parcel #78-2 on Subdivision Plan #11654 . [paras. 14-16] [Emphasis added.] [ 66 ] In my opinion, the principle, as advanced by Mr. Bourgeois, is too broadly stated.

There is no doubt that when a lot or parcel is granted by number and a plan clearly identifies its boundaries and what it contains, the intent of the parties, as evidenced by the plan, governs and conflicting elements in the description will not generally interfere with the certainty that otherwise flows from the grant. However, not every grant that includes a reference to a plan will cause the plan to trump all conflicting elements of a property description.

For a plan to oust any other assessment or analysis in order to ascertain the intention of the parties, the identity of the lot and its boundaries must be clear and obvious from the plan. [ 67 ] Additionally, as the respondents point out, the facts in Chandler are distinguishable . McNally J. explained that, in the case before him, “[n]either the metes and bounds description nor the parcel identified as lot #78-2 on Plan #11654 include the disputed lands extending from the northern boundary of the lot to the ordinary high water mark of the Northumberland Strait”.

Also, speaking more generally of the claim he was rejecting, he stated that “ such an

interpretation would be contrary to the clear and stated intentions of the parties to the deeds, inconsistent with the metes and bounds description of the parcel and the boundaries as illustrated and identified in Parcel #78-2 on Subdivision Plan #11654”. In the case before us, the description expressly refers to the high water mark of the river. [ 68 ] The 1934 Plan, which first laid out the lots which now form part of the respondents’ properties, was prepared for the purpose of leasing lots.

The leases identified the lots leased by reference to the lot numbers on the plan and not by a metes and bounds description. That said, the leases to the waterfront lots described them as being bounded by the Scoudouc River. The 1934 Plan shows the lots as being bounded by the river. As mentioned earlier, Mr. Bourgeois asserts the lanes go to the river.

The 1934 Plan appears to show the lanes having the same boundary as the lots. [ 69 ] The deeds contain a metes and bounds description which (in the deeds to the respondents’ properties, with one exception) expressly provide that they are bounded by the median high water mark. As an example, in the deed relating to one of the lots now owned by Mr.

Bourgeois (Lot 11), and reproduced above, the waterfront boundary is described as: “a distance of Sixty-Seven Feet (67’) more or less or until the median high water mark of the Western bank of the Scoudouc River is reached ; thence in a generally Northerly direction and along the various courses and windings of the said median high water mark of the Scoudouc River” .

Reference to the lot is not in the body of the description; it is the subsequent paragraph which provides that the lands described are intended to be Lot 11. [ 70 ] Even if the 1934 Plan and 1949 Plan were found to show the waterfront boundary line of Lot 11 as being at the top of the bank, or otherwise short of the ordinary high water mark, as alleged by Mr. Bourgeois, it was open to the application judge to determine that the express and clear intent of the parties, as indicated by the deliberate reference to high water mark, must govern.

He concluded the grantors intended to convey, and to divest themselves of any interest in, the land to the ordinary high water mark, hence, his conclusion that, prima facie , the respondents own to the ordinary high water mark. Quite frankly, it is difficult to see how any

interpretation to the contrary would not frustrate the intention of the grantors. While a conveyance may fail to achieve an intended grant, this is not the assertion in the present case. Finally, it seems quite plain from the record the application judge was very aware of the expert evidence advanced by Mr. Bourgeois.

However, as the application unfolded, that evidence did not bear in a meaningful way on the issue of the location of the ordinary high water mark and the respondents’ seawalls. [ 71 ] In the end, the judge concluded that, if his findings were wrong and the respondents did not own to the ordinary high water mark, he would not, in any event, have been able to determine Mr. Bourgeois’ claim to a prescriptive right over the strip of land above the ordinary high water mark since its alleged owners, the Residual Owners, were not parties.

This was not addressed in a meaningful way on appeal and it is not necessary to address it now. [ 72 ] In my opinion, Mr. Bourgeois has not established there is an error in the analysis leading to the application judge’s conclusions and his dismissing Mr. Bourgeois’ application. I would dismiss the appeal. There is no need to address the respondents’ Notice of Contention.

[ 73 ] Before concluding entirely, I believe it is important to emphasize these reasons should not be taken to be supportive of the claim made by some respondents that the rights of way at Cornwall Point (similar to the right of way granted to Mr. Bourgeois) are limited to only that portion of an adjacent private lane which is necessary to access the owner’s property. It is one thing to reject an

interpretation of such a right of way that would permit the use of all lanes at Cornwall Point; it would be quite another to reject a construction which permits passage over an entire adjacent lane, including to the shore of the Scoudouc River. Indeed, from the record before the Court, it is difficult to imagine an

interpretation which would limit the right of passage to less than the full length of an adjacent lane. While the

interpretation of a right of way is always a matter of construction, the private lanes in this case are admitted to run to the shore of the Scoudouc River and the right of way does not evidence an intention to permit access to the property from only the end of the lane which leads from Evergreen Drive. As was pointed out by Mr. Bourgeois, in Dawson the court found that a right of way which ran to the Northumberland Strait permitted access to and from the Northumberland Strait. Reflecting the spirit of such an

interpretation, the Quit Claim Deed executed by the Residual Owners in favour of Tamarack Lane Shediac Road Association Inc. expressly provides that all property owners on Tamarack Lane may use the lane to access the shore of the Scoudouc River. [ 74 ] Hopefully, there will be no further confrontation or need for further litigation respecting the rights of way at Cornwall Point. To this end, the application judge encouraged the respondents to not interfere with other property owners merely exercising their right of passage over the lane adjacent to their property.

After all, as he noted, the respondents’ rights of way confer only a right of passage over the lane, no more, no less. It does not permit any other use of the private lane. Obviously, this decision leaves for another day, if necessary, a determination of whether the seawalls constructed by the respondents unacceptably interfere with the rights of other property owners to pass over a lane. VI. Disposition [ 75 ] For these reasons I would dismiss the appeal with one set of costs, of $5,000, payable by the appellant. ____________________________ RAYMOND T. FRENCH, J.A.

WE CONCUR: ______________________________ BRADLEY V. GREEN, J.A. ______________________________ BARBARA L. BAIRD, J.A. Appendix “A”

Appendix “A”

Annexe « A » Version française de la décision de la Cour rendue par LE JUGE FRENCH I. Introduction [1] Le présent appel vise un litige portant sur des biens qui concerne l’accès à la rive de Cornwall Point, à Shediac, au Nouveau-Brunswick, ainsi qu’aux allées privées menant à la rive. Le litige a mis aux prises un grand nombre de propriétaires fonciers de cette petite collectivité, certains à

titre de parties et d’autres comme auteurs d’affidavits présentés en preuve. Le litige porte sur l’interprétation d’un droit de passage concédé par un acte formaliste. La revendication par l’appelant d’un droit de passage acquis par prescription est également en cause. II. Historique

[2] L’aménagement résidentiel de Cornwall Point a commencé dans les années 1930, lorsque le propriétaire du lieu s’est mis à donner à bail un certain nombre de petits lots sur lesquels s’est établie une collectivité estivale. Au fil des ans, surtout après l’acquisition de Cornwall Point par de nouveaux propriétaires en 1961, la concession de baux a pris fin et le

titre en fief simple de tous les lots a été vendu. À l’heure actuelle, des maisons habitables toute l’année sont établies sur un grand nombre de ces lots. L’assertion selon laquelle lui-même et les autres propriétaires fonciers de Cornwall Point continuent à jouir des mêmes droits d’accès à la rive et aux allées privées que ceux qui existaient auparavant dans le cadre du plan d’aménagement à l’époque où Cornwall Point était une collectivité cédée à bail est au cœur de la thèse défendue par l’appelant.

Il est admis que les anciens baux d’une durée de vingt ans conféraient expressément aux preneurs à bail un droit de passage sur la totalité des chemins et allées de Cornwall Point. Cependant, les actes formalistes transportant le

titre en fief simple des lots vendus concèdent un droit de passage exprimé au moyen de termes qui ne sont pas aussi larges. Ils font état d’un droit d’accès [TRADUCTION] « au lot transporté par les présentes […] et plus particulièrement décrit dans ledit plan ». Ni les baux, ni les actes formalistes ne concèdent un droit explicite d’utiliser la rive (à une exception près, un acte formaliste concédé en 1956). [3] Cornwall Point est une étroite péninsule qui s’étend en direction du havre de Shediac, à l’embouchure de la rivière Scoudouc . Une reproduction d’une carte préparée par Service Nouveau-Brunswick au centre de laquelle se trouve la péninsule est jointe comme

annexe « A ». Comme l’indique la carte, il ne s’agit pas d’un plan d’arpentage et tous les lots initiaux de Cornwall Point n’y figurent pas. Toutefois, cette carte montre les parcelles de terrain actuelles et comme elle est beaucoup plus claire que les reproductions du plan original de 1934 sur lequel on pouvait voir les lots et les allées (ou du plan de 1949 modifiant ce plan), elle est suffisante pour permettre de comprendre l’emplacement des lots des parties ainsi que des allées menant à la rive. [4] La carte montre que l’extrémité de la péninsule pointe vers le nord (vers le haut de la carte).

La base de la péninsule, l’endroit où elle est rattachée à la terre, se trouve au sud (au bas de la carte). Naturellement, l’eau entoure les trois côtés de la péninsule, mais il semble que la meilleure plage ou rive se trouve à l’extrémité de la péninsule, du côté est, le long de la rivière Scoudouc (soit le côté droit de la péninsule). En direction nord, depuis la base de la péninsule jusqu’à son extrémité, se trouve la rue Evergreen (environ 15 mètres de large, de couleur foncée sur la carte). Il s’agissait d’un chemin d’accès privé jusqu’en 2006, lorsqu’elle a été acquise par la Ville de Shediac.

Le premier acte formaliste dans lequel le chemin est mentionné, qui remonte à 1956, le décrivait comme étant [TRADUCTION] « la principale voie d’accès traversant Cornwall Point ». C’est le seul chemin public traversant Cornwall Point. Partant de la rue Evergreen, semble-t-il à angle droit, on trouve sept courtes allées parallèles menant à la rive de la rivière Scoudouc. Mesurant environ six mètres de large, ces allées ont une largeur inférieure à la moitié de celle de la rue Evergreen. Ces sept allées figurent sur le plan original de 1934 de Cornwall Point.

Jusqu’aux environs des années 1960, elles portaient simplement le nom d’allées 1 à 7, celle du bas portant le numéro 1 et celle du haut le numéro 7. L’allée située en haut de la péninsule (en foncé sur la carte) est maintenant un chemin public prolongeant la rue Evergreen. En dessous de cette allée, on trouve dans l’ordre, à partir de l’extrémité de la péninsule, les allées privées suivantes : Tamarack (en foncé sur la carte), Laurel, Linden, Spruce, Cherry et Chestnut. [5] L’appelant, Paul Bourgeois, est propriétaire d’un bien situé au bord de l’eau à Cornwall Point.

Son bien est la grande parcelle située à la fin de l’allée qui porte maintenant le nom de rue Evergreen, au sud. Dix des intimés sont également propriétaires de biens situés au bord de l’eau, tous au sud du terrain de M. Bourgeois. Collectivement, M. Bourgeois et les intimés sont propriétaires de sept des onze lots situés au bord de l’eau qui se trouvent du côté est de Cornwall Point, au sud de la rue Evergreen. La raison pour laquelle tous les propriétaires riverains ne sont pas des intimés n’est pas claire. L’intimé restant, la Tamarack Lane Shediac Road Association Inc., est propriétaire de l’allée Tamarack.

Les titres de propriété des cinq autres allées privées n’ont pas été vendus et appartiennent toujours aux personnes qui ont acquis la propriété de Cornwall Point en 1961. Les propriétaires de ces terres résiduelles (les [TRADUCTION] « propriétaires résiduels ») ne sont pas parties à la présente instance. [6] Ces dernières années, les propriétaires des lots riverains, dont M. Bourgeois et les intimés, ont construit des ouvrages de protection qui longent la rive est de Cornwall Point.

Ces ouvrages s’étendent au-delà de l’extrémité en bordure de l’eau de l’allée Tamarack et des cinq autres allées privées qui mènent à la rivière Scoudouc. Certains sont en béton et mesurent jusqu’à quatre ou cinq pieds de hauteur. M. Bourgeois prétend que les ouvrages de protection érigés par les intimés l’empêchent d’accéder aux allées et de jouir de la rive. De plus, il soutient que les intimés ont essentiellement annexé l’extrémité est des allées privées, soit l’endroit où les allées passent entre leurs lots pour atteindre la rive. Il affirme que les arbres et les buissons qui se trouvent sur cette

partie des allées constituent des obstacles à leur utilisation. M. Bourgeois fait valoir que les intimés ont entravé les efforts qu’il a déployés pour exercer son droit d’accès à la rive et aux allées. À un moment donné, la police a dû intervenir. Je ne dirai rien de plus au sujet de ces éléments de preuve étant donné qu’ils n’influent aucunement sur les questions qui sont en cause dans le présent appel. [7] Dans son avis de requête, M.

Bourgeois demande à la Cour de déclarer qu’il possède un droit de passage: (i) [TRADUCTION] « pour accéder à la rive de la rivière Scoudouc et l’utiliser, tel qu’il le prétend »; et (ii) [TRADUCTION] « sur les allées du lotissement de Cornwall Point, tel qu’il le prétend ». Il sollicite également une ordonnance imposant aux intimés l’obligation de retirer les ouvrages de protection et autres obstacles qui l’empêchent d’accéder à la rive et d’en jouir et une ordonnance enjoignant aux intimés de cesser d’entraver son accès aux allées ou à la rive ou d’y faire obstacle.

Il allègue que les intimés l’ont empêché d’exercer son droit d’emprunter toutes les six allées privées et de jouir de la rive de la rivière Scoudouc.

[8] Les intimés nient que M. Bourgeois possède, soit en vertu d’un acte formaliste, soit par prescription acquisitive, un droit de passage sur les allées privées ou jusqu’à la rive au-dessus de la marque habituelle des hautes eaux. Ils admettent qu’il a les mêmes droits que n’importe qui de jouir de la rive appartenant à la Couronne, soit la rive de la rivière Scoudouc au- dessous de la marque habituelle des hautes eaux. Les intimés soutiennent que le

titre de propriété du lot de M. Bourgeois, à l’instar du

titre de propriété de leurs lots et d’autres lots de Cornwall Point (à une exception près), ne confère aucun droit explicite d’accès ou d’utilisation de la rive et ne fait état que d’un droit de passage pour accéder à sa propriété en empruntant l’allée privée qui y mène, et non d’un droit général sur la totalité des allées de Cornwall Point. En fait, ils font valoir que le droit de passage que possède M. Bourgeois est devenu inutile étant donné que, en 2006, l’allée privée menant à sa propriété est devenue un chemin public, la rue Evergreen. En ce qui concerne la revendication par M.

Bourgeois d’un droit de passage acquis par prescription pour accéder à la rive et emprunter les allées, les intimés en contestent le fondement factuel. [9] Sur le plan purement pratique, les thèses défendues par M. Bourgeois et par les intimés ont des répercussions sur d’autres propriétaires fonciers de Cornwall Point. Certains (dont les propriétés ne sont pas riveraines) ont fourni des affidavits à l’appui des revendications de M. Bourgeois. Aucun d’eux n’est

partie à l’instance. Au minimum, ils revendiquent la possibilité d’emprunter, sur toute sa longueur, l’allée privée adjacente à leur propriété, leur permettant ainsi d’aller jusqu’à la rive et d’en revenir. Il semble que selon l’interprétation de certains intimés, le droit de passage cédé par acte formaliste se limite à l’utilisation d’une allée privée adjacente, à partir de la rue Evergreen, uniquement dans la mesure nécessaire pour accéder à leur propriété, et ne confère pas le droit de l’emprunter jusqu’à son extrémité à proximité de la rive.

Cependant, il semble que d’autres propriétaires considèrent que le droit de passage permet notamment d’emprunter une allée privée contiguë sur sa pleine longueur pour accéder à la rive et en revenir. Fait intéressant, lorsque les propriétaires résiduels ont transféré l’intérêt qu’ils possédaient dans l’allée Tamarack à la Tamarack Lane Shediac Road Association Inc. en 2013, cette question a été clarifiée puisque les propriétaires résiduels ont exigé que les propriétaires de biens donnant sur l’allée Tamarack aient le droit d’emprunter l’allée Tamarack pour accéder à la rive.

La preuve semble indiquer que l’Association a été créée pour acquérir l’allée Tamarack des propriétaires résiduels, essentiellement au profit des propriétaires de biens donnant sur l’allée. Ils voulaient qu’elle reste une allée privée (et éviter qu’elle ne devienne un chemin public ouvert à tout le monde) et clarifier les questions d’accès. Il semble s’agir d’une façon élégante d’atteindre ces objectifs. [10] Dans ses motifs à l’appui du rejet de la requête, le juge a soulevé 12 questions (ou points) concernant les revendications de M. Bourgeois.

Il en a tiré deux conclusions clés qui sont au cœur du présent appel. [11] Premièrement, le juge saisi de la requête a déterminé que le droit de passage explicite concédé avec le

titre de propriété de M. Bourgeois ne conférait pas un droit de passage sur toutes les allées de Cornwall Point ni un droit de passage permettant d’accéder à la rive ou d’en jouir. [12] Deuxièmement, il n’a pas été convaincu que M. Bourgeois avait établi qu’il avait acquis par prescription le droit de jouir de la rive de la rivière Scoudouc au-dessus de la marque habituelle des hautes eaux . Il a conclu aussi qu’il lui était impossible de statuer sur la revendication de M.

Bourgeois selon laquelle il détenait un droit acquis par prescription sur toutes les allées privées. [13] Le juge saisi de la requête n’a pas non plus été persuadé que les ouvrages de protection des intimés portaient atteinte au droit de M. Bourgeois de jouir de la rive. Par ailleurs, il n’a pas accepté l’assertion de M.

Bourgeois selon laquelle les lots situés [TRADUCTION] « au bord de l’eau » appartenant aux intimés ne s’étendent pas jusqu’à la marque habituelle des hautes eaux et qu’il existe par conséquent une [TRADUCTION] « zone tampon » ou une bande de terre entre les lots des intimés et les terres de la Couronne ( au-dessous de la marque habituelle des hautes eaux). M. Bourgeois affirme qu’il aurait le droit de jouir de cette bande de terre ou

partie de la rive, comme l’ensemble des autres propriétaires de Cornwall Point. Le juge est également arrivé à la conclusion que s’il faisait erreur, la bande de terre en question appartiendrait alors aux propriétaires résiduels et que comme ils n’étaient pas parties à l’instance, il lui était impossible de statuer sur la revendication, par M. Bourgeois, d’un droit acquis par prescription sur cette bande de terre. De la même façon, il a conclu qu’il ne pouvait se prononcer sur la revendication par M.

Bourgeois d’un droit acquis par prescription sur les allées étant donné que les propriétaires résiduels n’étaient pas parties à l’action. De plus, la Couronne, en sa qualité de propriétaire de la rive au-dessous de la marque habituelle des hautes eaux, n’était pas

partie à la requête de M. Bourgeois. Enfin, le juge a conclu qu’il y avait une contestation importante des faits au sujet de l’utilisation des allées, comme en témoignaient les affidavits contradictoires déposés par les parties, et qu’il ne pouvait pas, dans le cadre de l’audition de la requête, se prononcer sur la revendication par M. Bourgeois d’un droit de passage acquis par prescription sur l’ensemble des allées; un procès serait nécessaire. [14] M. Bourgeois interjette appel de cette décision. Pour les motifs exposés ci-dessous, je suis d’avis de rejeter l’appel. III. Moyens d’appel et avis de désaccord

[15] Dans son avis d’appel, M. Bourgeois invoque un certain nombre de moyens. Il affirme que, dans sa décision, le juge a commis : 1. une erreur de droit et une erreur significative

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