2023 NLSC 29, 2023 NLSC 29

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Stairs v. Baker , 2023 NLSC 29 Date : February 24, 2023 Docket : 202106G0105 Between: Anthony Stairs First Applicant And: Catherine Stairs Second Applicant And: Roger Baker First Respondent And: Debbie Baker Second Respondent And: Wayne Whalen Third Respondent And: Raina Lambert Fourth Respondent And: Bonnie Dean Fifth Respondent And: Anthony Dean Sixth Respondent

Before : Justice Peter A. O’Flaherty Place of Hearing: Clarenville, Newfoundland and Labrador Dates of Hearing: December 6-7, 2022

Summary: The Applicants sought a declaration that they enjoy an easement by prescription over land across the road from their property in Caplin Cove, NL. Held: The Applicants did not establish user of the land as of right for a period of twenty years. The application was therefore dismissed. Appearances: Vanessa M. Laite Appearing on behalf of the Applicants Gregory J.

French Appearing on behalf of Wayne Whalen Roger Baker Appearing on his own behalf Debbie Baker Appearing on her own behalf Raina Lambert Appearing on her own behalf Bonnie Dean Appearing on her own behalf Anthony Dean Appearing on his own behalf Authorities Cited: CASES CONSIDERED: Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 , 68 A.P.R. 431 (Nfld. Dist. Ct.) ; Jackson v. Harnum , 2011 NLTD(G) 107; Healey v. Hawkins (1968), 1 W.L.R. 1967, 3 All E.R. 836 (Eng. Ch. Div.) ; Coady v. Dicks , 2004 NLSCTD 139 ; Franklin v. St.

John’s (City) , 2012 NLCA 48 STATUTES CONSIDERED: Prescription Act (1832), 2 & 3 Will IV, c. 71 TEXTS CONSIDERED: Megarry & Wade, The Law of Real Property , 6th ed., (London: Sweet and Maxwell, 2000) REASONS FOR JUDGMENT O'Flaherty, J. : INTRODUCTION

[ 1 ] The Applicants, Anthony and Catherine Stairs, seek a declaration that they enjoy a prescriptive easement for parking and shed storage over a parcel of land directly across the road from their property at 6 Whalen’s Way in Caplin Cove, NL. [ 2 ] On December 8, 2021, I granted an interlocutory injunction prohibiting the Respondents from interfering with the Applicants’ user of the land across the road pending a decision on the merits of their claim to a prescriptive easement. [ 3 ] The land across the road was originally occupied by William and Rachel Whalen.

In 1950, the Whalens built a dwelling house and shed on the land, directly opposite the house and land of William’s father, Ebenezer, who lived at 6 Whalen’s Way. In 1973, the Whalens moved across the road to a new house at 8 Whalen’s Way, and they tore down their old house and used the land for a shed and parking. [ 4 ] In 1989, William Whalen’s younger brother, Stanley Whalen, inherited 6 Whalen’s Way. With William Whalen’s agreement, Stanley Whalen moved a shed from his previous property in the community onto the land across the road and William built a piece onto the back of the shed.

The brothers shared the shed and, by William’s agreement, both households used the land for parking. [ 5 ] The land across the road was given to Raymond Whalen by his father William Whalen on March 20, 2010. Stanley Whalen and his wife Woodrow Whalen continued to live at 6 Whalen’s Way until September 27, 2012, when they sold that property to the Applicants’ in–laws, who held title on behalf of the Applicants until 2017.

It is uncontested that the deed conveying 6 Whalen’s Way to the Applicants’ in-laws did not include the land across the road, and there is no express grant of an easement in the deed. [ 6 ] From September 27, 2012, up until April 26, 2021, the Applicants continuously used the land to park their vehicles and to store their wood and personal property in the front part of the shed. They made improvements to the parking area and the front of the shed without asking anyone’s permission to do so.

The owner of the land, Raymond Whalen, knew of their user of the land and took no issue with it. [ 7 ] On April 26, 2021, the owners of 8 Whalen’s Way, Debbie (Whalen) Baker and Roger Baker, delivered a notice to the Applicants purporting to revoke permission for their user of the land across the road.

The Bakers had purchased 8 Whalen’s Way from Raymond Whalen on March 20, 2010 and had used the land across the road, but they did not own the land across the road until July 30, 2021. [ 8 ] On August 26, 2021, the Applicants commenced this proceeding by Originating Application claiming, among other relief, a prescriptive easement. In answer to this claim the Respondents assert that the Applicants’ user of the parking area and the front half of the shed was enjoyed with permission, and not as of right. [ 9 ] The law on this question is clear.

The Applicants must prove, on the balance of probabilities, uninterrupted user of the land across the road as of right for a period of at least twenty years. A user “as of right” is enjoyed with the acquiescence of the owner of the land as opposed to with the permission of the owner. [ 10 ] The Applicants concede that Stanley and Woodrow Whalen’s user of the land originated in permission but claim it “ripened” into user “as of right” over time, relying on the rule stated in Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 , 68 A.P.R. 431 (Nfld. Dist.

Ct.) at paragraph 30 , that a user which begins in agreement may become “as of right” as illustrated by Healey v. Hawkins (1968) 3 All E.R.836. [ 11 ] For the reasons that follow, I decline to follow the rule in Henley v. Ryan and I find that a user which begins in permission cannot ground a prescriptive easement for the same user. I conclude the Applicants have not established uninterrupted user of the land across the road as of right for a period of at least twenty years. The application is therefore dismissed and the interlocutory injunction is vacated.

THE FACTS [ 12 ] I heard evidence regarding the ownership and use of the land across the road from 6 Whalen’s Way from Anthony Stairs, Raymond Whalen, Francis Drover, Stanley Whalen and Wayne Whalen. While there were differences in their recollection on certain points, most of the essential facts are not in dispute. The Ownership of the Land across the Road [ 13 ] The evidence of Raymond Whalen was the most relevant to the ownership of the land across the road from 6 Whalen’s Way.

His evidence was not made available to the court at the hearing of the interlocutory injunction. [ 14 ] In or about 1950, Raymond Whalen’s parents, William and Rachel Whalen, built a dwelling house and shed on the land, directly opposite the house and land of William’s father, Ebenezer, at 6 Whalen’s Way. Mr. Whalen testified that he was born in 1951 and he lived in Caplin Cove, in the house across the road from 6 Whalen’s Way, up to the age of 18.

After his parents moved to their new house at 8 Whalen’s Way, in or about 1973, they tore down their old house and used the land for a work shed, and later for storage and parking. [ 15 ] Mr. Whalen testified that his father, William Whalen, had obtained the land across the road from 6 Whalen’s Way from his father, Ebenezer Whalen, but he was not aware of a registered deed or document of title to William Whalen for the land. [ 16 ] Rachel Whalen passed away in 1968, and by 2010 William Whalen was living in a retirement home in Clarenville, NL.

On March 20, 2010, William Whalen signed a document giving his house and his property in Caplin Cove to Raymond Whalen, who was also living in Clarenville. On the same date, Raymond Whalen executed a Bill of Sale from Raymond Whalen to Roger and Debbie Baker for the sale of the house and land at 8 Whalen’s Way for $20,000.00. [ 17 ] According to Raymond Whalen, whose evidence I accept, the Bill of Sale to Roger and Debbie Baker only included the house

and land at 8 Whalen’s Way, and a parcel across the road from 8 Whalen’s Way which was adjacent to the land over which an easement is now claimed by prescription. I find as a fact that the Bill of Sale did not include the parcel of land across the road from 6 Whalen’s Way. [ 18 ] Mr. Whalen testified that his father, William Whalen, asked him if he wanted that land for a cabin and told him it was his land and “ you can do what you want with it ”. According to Mr.

Whalen, he did not release his rights in the land until July 30, 2021, although Debbie Baker had asked him more than once to sell her the land. [ 19 ] On July 30, 2021, Raymond Whalen executed a Bill of Sale transferring the land across the road from 6 Whalen’s Way to Roger and Debbie Baker. By that time Mr.

Whalen had concluded that he had no plans to build a cabin on the land. [ 20 ] On June 1, 2021, the Bakers had already purported to give the land across the road to the Third Respondent, Wayne Whalen; however, they formally transferred the land across the road to the Third Respondent, Wayne Whalen, on July 14, 2022. [ 21 ] Based on this evidence, I find that the parcel of land was owned as follows:

a) By William and Rachel Whalen from 1950 until 1968, and after Rachel’s death by William Whalen from 1968 until March 20, 2010, when he transferred the land across the road to his son, Raymond;

b) By Raymond Whalen from March 20, 2010, until July 30, 2021, when he transferred the land to Roger and Debbie Baker;

c) By Roger and Debbie Baker from July 30, 2021, until July 14, 2022, when they transferred the land to Wayne Whalen; and,

d) By Wayne Whalen, the current owner of the land, since July 14, 2022. [ 22 ] My findings as to ownership of the parcel of land across the road from 6 Whalen’s Way do not declare the beneficial ownership of the land or mean that Wayne Whalen has good title to the land. Such a declaration is unavailable in this proceeding and unnecessary to determine whether the Applicants have an easement.

The Use of the Land across the Road [ 23 ] Anthony and Catherine Stairs (the “Applicants”) have lived at 6 Whalen’s Way in Caplin Cove, NL, since September 27, 2012, when the property was acquired from Stanley and Woodrow Whalen by Catherine Stairs’ parents, Francis and Sandra Drover.

The Applicants have owned the property since May 30, 2017. [ 24 ] The Applicants have, from and after September 27, 2012, used the parking area across the road from their property for parking their vehicles and have used the front half of an adjacent shed for the storage of their personal property and firewood. [ 25 ] The Applicants say that, during a visit to 6 Whalen’s Way before it was purchased, Stanley Whalen told Francis Drover and Anthony Stairs that the parking area and the front half of the shed were for the use of the owners of 6 Whalen’s Way. [ 26 ] Anthony Stairs said when he inquired about the parking for 6 Whalen’s Way he was told by Stanley Whalen that he parked across the road, and that his parking area was for the house.

Mr. Stairs testified that he asked Stanley Whalen about buying the land across the road and was told by Stanley Whalen that the land was not his to sell but it would be theirs to use as long as they lived there. Mr. Stairs recalled Mr. Whalen’s words as follows: “ I can’t sell you that land but I can tell you this, that is my parking for the house, and it is yours to use if you buy the house. ” [ 27 ] Mr. Stairs further testified that Stanley Whalen would not provide anything in writing regarding their right to use the land across the road. Mr.

Stairs said that he understood that the land across the road was owned by Raymond Whalen, the son of William and Rachel Whalen. He did not contact Raymond Whalen about the issue. [ 28 ] Mr. Stairs said that he knew that Roger and Debbie Baker were using the back half of the shed and also parked a vehicle on the land across the road. Mr. Stairs did not contact Roger and Debbie Baker regarding the Applicants’ use of the shed or the parking area either before the Drovers bought 6 Whalen’s Way or after the Applicants moved into 6 Whalen’s Way. [ 29 ] Mr.

Francis Drover testified that he was present for conversations about the parking and the use of the shed across the road during a site visit to Caplin Cove to see the house. He said that Stanley Whalen informed the purchasers that he could not sell the land across the road, or the shed, but he told the Applicants that they could have “ part of the shed I use and the parking lot I use ” if they bought the house. [ 30 ] Stanley Whalen admits discussing the land across the road, in particular with Anthony Stairs and Francis Drover, prior to the Drovers purchasing the property. Mr.

Whalen testified he told Anthony Stairs and Francis Drover that the land across the road was not his land so “ I can’t sell it to you and I can’t give it to you. ” [ 31 ] When Anthony Stairs asked him where he could park if they bought 6 Whalen’s Way, Mr. Whalen said he told him that he had spoken with the Bakers and they confirmed it would be okay to park on the land, but if they needed to use the land then the Applicants would have to leave. He further testified that the Applicants could use the front half of the shed as long as the Bakers did not need the land. Mr.

Whalen said that, at the time, he believed that Raymond Whalen had already “signed over” the land across the road to Roger and Debbie Baker who were living at 8 Whalen’s Way and were parking on the land and using the back half of the shed. [ 32 ] Mr.

Stanley Whalen entered a photograph taken from the rear of 6 Whalen’s Way in the early 1960s which showed the house currently owned by the Applicants and, directly across the road, a two-story house and a shed where William and Rachel Whalen lived, opposite the house and land of William’s father, Ebenezer. [ 33 ] He recounted that William and Rachel Whalen lived in that house until the 1970s when they built a new house at 8 Whalen’s

Way. Stanley Whalen said that the old house was first re-purposed as a one-storey work shed. In 1989, when Stanley Whalen inherited his father Ebenezer’s house and land at 6 Whalen’s Way he was living in a house in the community about 300 feet away and wanted to haul his shed from his house and put it on the land across the road from 6 Whalen’s Way. [ 34 ] In 1989 he asked his brother William Whalen, who was living at 8 Whalen’s Way, “ …is it okay if I haul my shed up and he said yes. ” Mr.

Whalen testified that, after 1989, he continuously used the land across the road to park, also with William’s agreement, and used the front half of the shed, but said he would have stopped using the land and he would have removed the shed if William had asked him to. [ 35 ] Stanley Whalen confirmed that his brother William later built a piece onto the shed that Stanley Whalen had moved up on the land across the road from 6 Whalen’s Way and the brothers shared the shed. He testified that after he started using the land in 1989 his brother never asked him to remove his vehicle or remove the shed. [ 36 ] Mr.

Raymond Whalen, who I have found was the owner from March 20, 2010, until July 30, 2021, was not aware of the details of the arrangement between William Whalen and Stanley Whalen about the use of the land. Mr. Whalen was aware however that after Stanley Whalen inherited 6 Whalen’s Way, the brothers had shared the use of the shed on the land and both houses used the land for parking. [ 37 ] Mr.

Whalen was aware, during the period while he was the owner of the land across the road, that the land was used by Debbie and Roger Baker and Stanley Whalen, and later by Debbie and Roger Baker and Anthony and Catherine Stairs, in much the same way that his father and Stanley Whalen had shared the use of the shed on the land and both houses had used the land for parking. [ 38 ] Mr. Whalen said he had no discussions with any of the people who were using the land regarding its ongoing use, and said he took no issue with it.

He recalled however that on a couple of occasions after March 20, 2010, Debbie Baker approached him to ask if he was interested in selling it to Roger and Debbie Baker. [ 39 ] On April 26, 2021, Debbie Baker delivered a notice to the Applicants purporting to revoke their permission to use the land across the road. On the previous day, Anthony Stairs had entered the back half of the shed, removed a wheelbarrow and four ATV tires, and placed them under a tarpaulin next to a wood pile.

He said he understood that the Bakers were vacating 8 Whalen’s Way and “ it seemed like an okay thing to do. ” [ 40 ] Roger and Debbie Baker did not own the land on April 26, 2021, but Mr.

Stairs’ actions on April 25, 2021 brought the Applicants’ right to the use of the land to a head, and ultimately led to this legal proceeding being commenced by the Applicants on August 26, 2021, claiming a prescriptive easement. [ 41 ] Based on the foregoing, I find that the period of the Applicants’ user of the land across the road is 8 years and 10 months, from September 27, 2012, until July 30, 2021, by which latter date the Bakers owned the land and the Applicants knew that their user was objected to by the First and Second Respondents. [ 42 ] The question of whether the user by the Applicants for that period was by permission, or as of right, is a question of fact.

Based on the following findings, I conclude the Applicants have established that their user from September 27, 2012, up until July 30, 2021 was as of right. [ 43 ] I find as a fact that the owner of the land, Raymond Whalen, did not give the Applicants any permission to use the land.

I further find that from September 27, 2012, up until July 30, 2021, he knew they were using the shed and he knew they were parking their vehicles on the land and he took no issue with it. [ 44 ] I find as a fact that after September 27, 2012, the Applicants made improvements to the land across the road and the front part of the shed without asking anyone’s permission to do so, they insured the land and shed, and they paid for the electrical service to the shed. [ 45 ] The Respondents say that the Applicants’ user was always permissive based on their discussions with Stanley Whalen at which time he told them they had been granted permission to use the shed and parking spots by Roger and Debbie Baker, who Mr.

Whalen believed at the time were the owners. [ 46 ] On my assessment of the evidence of the three witnesses who were present, I am not persuaded that Stanley Whalen told Mr. Stairs or Mr. Drover that Roger and Debbie Baker had given their permission for the Applicants to use the shed and the parking spots. The First and Second Respondents did not testify to confirm that Stanley Whalen had asked them to give their permission to the Applicants’ user of the land, and I conclude that Stanley Whalen must be mistaken on that point. [ 47 ] I find as a fact that Stanley Whalen told Mr. Stairs and Mr.

Drover that if the purchasers bought 6 Whalen’s Way they could use the land across the road, as he had, but he could not sell the land or give it to them because he was not the owner. [ 48 ] I further find that the period of Stanley and Woodrow Whalen’s user of the land across the road from 6 Whalen’s Way is about 22 years, from 1989 until September 27, 2012.

It is undisputed on the evidence above that their user of the land across the road was permissive in its inception. [ 49 ] One factual point of contention remains to be resolved, which is whether Stanley and Woodrow Whalen’s user, which began in permission, became “as of right” over time. I will return to this point after I discuss the applicable law. THE ISSUES [ 50 ] The broad issue I must decide is whether the Applicants have established, on the preponderance of the evidence, user of the land across the road from 6 Whalen’s Way, “as of right” for a period of twenty years with the acquiescence of the owner.

[ 51 ] To decide this question I must first decide whether a user which begins in agreement may become a user “as of right.” This is a question of law. [ 52 ] If I find that a user which begins in permission may become a user “as of right,” I must decide whether Stanley and Woodrow Whalen’s user became “as of right”. This is a question of fact. If I find that a user which begins in permission cannot become a user “as of right,” their user was precario and never “as of right.” ANALYSIS Can a user which begins in agreement become a user “as of right”?

The Positions of the Parties [ 53 ] The Applicants rely on the statement in Henley v. Ryan , (1980), 25 Nfld. & P.E.I.R. 431 , 68 A.P.R. 431 (Nfld. Dist. Ct.) , at paragraph 30 , that a user which begins in agreement may become user as of right” as illustrated by Healey v. Hawkins (1968), 1 W.L.R. 1967, 3 All E.R. 836 (Eng. Ch. Div.) . This statement of the law was followed by this court in Jackson v.

Harnum , 2011 NLTD(G) 107. [ 54 ] The Respondents argued that Stanley and Woodrow Whalen’s user of the land across the road originated in an agreement with William Whalen and it was thereafter always precarious and never exercised “as of right”.

The Applicable Law [ 55 ] Easements may be created by statute, by express grant or reservation, by implication where intended or necessary, or by prescription. [ 56 ] In this case, the Applicants claim a prescriptive easement was established by their open use of the land across the road from 6 Whalen’s Way. [ 57 ] The basic rules for establishing a prescriptive easement in this jurisdiction are not in dispute. [ 58 ] As Justice Handrigan stated in Coady v. Dicks , 2004 NLSCTD 139 , relying on the background of the law set out by Steele, C.J.D.C. in Henley v.

Ryan , supra : 49 …Prescriptive easements are established by "user as of right", practiced nec vi ("without violence"), nec clam ("not secretly") and nec precario ("without permission"). 50 "User as of right" is the antithesis of permitted user in the discussion of prescriptive easements. Express permission defeats prescriptive easements. Prescriptive easements will be established if the owner of the servient tenement acquiesces in the use of his property. Acquiescence is silent or passive assent or submission, or submission with apparent content.

It is to be distinguished from avowed or express consent on the one hand, and from opposition or open discontent on the other. It might be appropriately called "quiet satisfaction". The servient owner cannot be said to "acquiesce" in the dominant owner's use if he has given the dominant owner express permission, the dominant owner has used force to obtain or to sustain the use or the servient owner has not known that the dominant owner was using his property. [ 59 ] In Franklin v. St.

John’s (City) , 2012 NLCA 48 , Wells, C.J. confirmed that the only method by which a prescriptive easement can be established in this province is based on the doctrine of the lost modern grant.

Unlike most other provinces, Newfoundland and Labrador has never had a prescriptive statute, and based on the date of reception of English law in the Colony of Newfoundland, the Prescription Act (1832), 2 & 3 Will IV, c. 71 was not received into Newfoundland law. “Common law” prescription, which rests on use since time immemorial, is also unavailable. [ 60 ] In Franklin , supra, at paragraph 35 , the Court of Appeal stated the “clear rule,” on analogy with limitations legislation, that evidence of uninterrupted user, of the nature described in Henley v.

Ryan , for a period of at least twenty years with the acquiescence, or quiet satisfaction, of the servient owner will be required to establish a prescriptive easement. [ 61 ] I find I am bound to follow the “clear rule” as stated in Franklin . In order to establish a prescriptive easement, the Applicants must therefore show uninterrupted user of the land across the road , of the nature described in Henley v.

Ryan , for a period of at least twenty years with the acquiescence of the owner. [ 62 ] The Applicants have shown uninterrupted user of the land across the road “as of right” from September 27, 2012, to July 30, 2021.

In order to show use “as of right” for a period of at least twenty years, it is open to the Applicants to “tack” on to their period of user, user “as of right” by Stanley and Woodrow Whalen from at least July 30, 2001 until September 27, 2012, a period of 11 years and two months. [ 63 ] Stanley and Woodrow Whalen’s user was permissive in its inception, however; this brings us to a consideration of the principle in Healey v. Hawkins . The Principle in Healey v. Hawkins [ 64 ] Recognizing that the Applicants’ claim to a prescriptive easement rests on the applicability of the principle in Healey v.

Hawkins , as stated in Henley v. Ryan , I feel bound to say at this point that I am unable, with respect, to accept that the principle in Healey v. Hawkins is part of the common law in this province. I will explain why I reached this conclusion. [ 65 ] In Henley v. Ryan , at paragraph 30, Steele, C.J.D.C. stated the principle in Healey v. Hawkins , which was subsequently applied

in that case: Jackman at p. 115 states that user enjoyed precario , that is, with permission, cannot normally give rise to a prescriptive right. Whether user is permissive, or as of right, is a question of fact. User that begins in agreement may become as of right as illustrated by Healey v. Hawkins , [1968] 3 All E.R. 836 [Emphasis added] [ 66 ] In Healey v. Hawkins , in answer to a claim for an injunction to restrain the Defendant’s user of the Plaintiff’s driveway based on the user being permissive, the Defendant set up a right by prescription.

He contended that although the user of the driveway was by oral permission in its inception, he could show the user continued for more than twenty years down to the date of the action without permission, and he had therefore acquired a right under the Prescription Act, 1832 . [ 67 ] On the facts of the case, Goff, J. held that the user of the Plaintiff’s driveway was permissive in origin.

He found the user began in 1934 or 1935 when the Defendant’s predecessor in title was given verbal permission by the Plaintiff to drive a three-wheeler car over the Plaintiff’s driveway in wet weather rather than use his own rougher path which was parallel.

He found that in 1938 the Defendant’s predecessor in title acquired a four-wheeler car, which was too large for the rougher path, and he drove over the Plaintiff’s driveway continuously without permission. [ 68 ] Goff, J. stated the principle he applied to the facts at page 841, paragraph D: In principle it seems to me that once permission has been given the user must remain permissive and not capable of ripening into a right, save where the permission is oral and the user has continued for forty or sixty years, unless and until, having been given for a limited period only, it expires, or being general it is revoked or there is a change in circumstances from which revocation may fairly be implied. [ 69 ] Goff, J. found that the user of the driveway from 1938 , in all weather, was a “ change in circumstances” of the user.

In the absence of a later oral permission, given within the 20 years immediately preceding the action being taken, Goff, J. held that the original oral permission given in 1934 or 1935 had been revoked, and the user from 1938 had “ripened” into a right under the Prescription Act , 1832 . [ 70 ] The Prescription Act , 1832 allows for the acquisition of easements and profits by court action where the claimant can show the enjoyment of such rights for statutory periods of between twenty and sixty years.

The statute contains specific provisions modifying the legal effect of consents on the acquisition of easements and profits. The provisions of the statute have been extensively interpreted and a body of common law was developed by the English courts to apply that statute. [ 71 ] In my view, Goff, J. was interpreting the provisions of the Prescription Act, 1832 , and applying authorities in that statutory context, to state the principle in Healey v. Hawkins .

The three “exceptions” he described under which a permissive user could ripen into an easement relate to a “right” of prescription under the statute. [ 72 ] I find that Goff, J.’s legal reasoning was confined to the acquisition of a “right” under the Prescription Act, 1832 , and the principle in Healey v. Hawkins was not stated as a principle of the common law of prescriptive easements . [ 73 ] I therefore conclude that the common law rules regarding the legal effect of permission were never altered by the principle in Healey v.

Hawkins , outside the context of a claim for a prescriptive right under the Prescription Act , 1832 . [ 74 ] At common law, any permission by the servient owner, whether oral or written, rendered the user precario and was fatal to a claim based on prescription; it made no difference how long ago the permission was given provided that user was in fact enjoyed under the permission and not under a claim to user as of right (see: Megarry & Wade, The Law of Real Property , 6th ed., (London: Sweet and Maxwell, 2000), para. 18-148). [ 75 ] As Henley v.

Ryan confirmed, the Prescription Act, 1832 was not received into Newfoundland law, and this province has never had a prescriptive act. Our Court of Appeal did not adopt the principle in Healey v. Hawkins as part of the excerpt from Henley v. Ryan which it held was “a correct expression of the background to the law applicable to determining the existence of a prescriptive easement in this province” ( see: Franklin , at paragraph 33 ). [ 76 ] I therefore find that I am not bound to follow the principle in Healey v.

Hawkins in this case. [ 77 ] Therefore, and with great respect, I decline to apply the principle in Healey v. Hawkins in this case and I will instead apply the common law as stated in Megarry & Wade, at para. 18-148, and in Coady v. Dicks , supra, at paragraphs 49-50 . Was Stanley and Woodrow Whalen’s user precario or “as of right”? The Positions of the Parties [ 78 ] The Applicants acknowledge that Stanley and Woodrow Whalen’s user began in permission but became, over time, user as of right.

The Applicants do not point to a particular event or circumstance when user as of right commenced. [ 79 ] The Respondents argue that Stanley and Woodrow Whalen’s user was, on the uncontested evidence, always precarious and never exercised as of right. Application of the Law to the Facts [ 80 ] “User” of the land means the actual exercise or enjoyment of any property or right.

The rule at common law is that if there was any consent to Stanley and Woodrow Whalen’s user of the land by the owner, William Whalen, whether oral or written, it rendered the user precario and was fatal to a claim based on prescription. [ 81 ] The evidence of Mr. Stanley Whalen was that, in 1989, he asked his brother William Whalen, the owner of the land, “ …is it

okay if I haul my shed up and he said yes. ” Mr. Whalen testified his brother agreed, and that, after 1989, he continuously used the land across the road to park, again with William’s agreement, and he used the front half of the shed for storage. [ 82 ] Stanley Whalen’s evidence, which was not challenged by the Applicants, acknowledges that his user did not begin “as of right” but was enjoyed under permission of the owner.

As it was under permission, I find it was not enjoyed nec precario ("without permission"), and at common law no easement for the same user could ever have been acquired by Stanley Whalen. [ 83 ] While I have found that a user which begins in permission cannot ground a prescriptive easement for the same user, I will also consider whether Stanley and Woodrow Whalen’s user of the land, for which the original permission was given by the owner, is the same user for which a prescriptive easement is claimed in this proceeding.

That is a question of fact. [ 84 ] Stanley Whalen testified that, from1989, he continuously used the land across the road to park and used the front half of the shed. The evidence shows, and I find as a fact, that the Applicants continued the user from September 27, 2012 up until July 30, 2021, and they claim a prescriptive right to the user in this proceeding. [ 85 ] Applying the common law, I found I do not need not consider the exceptions laid down by the principle in Healey v.

Hawkins , namely whether the permission: …having been given for a limited period only, it expires, or being general it is revoked or there is a change in circumstances from which revocation may fairly be implied. [ 86 ] If I am wrong however, and Healey v. Hawkins applies, I will consider whether any of the exceptions laid down by the principle apply on the facts of this case. [ 87 ] In this case Stanley Whalen, a dominant tenement owner, was available to testify. He testified that he would have stopped using the servient land and he would have removed the shed if William had asked him to.

Based on this evidence, which I accept, I find as a fact that the agreement under which the user of the land originated was not for a limited period. It was understood by Stanley and Woodrow Whalen, the dominant tenement owners, to be a continuing agreement and to be still in effect when 6 Whalen’s Way was sold to the Drovers on September 27, 2012. [ 88 ] I have already found as a fact that Stanley and Woodrow Whalen’s user of the land across the road never changed from 1989 to September 27, 2012.

It follows therefore, on the facts of this case, that there was no change in circumstances from which revocation of the owner’s original permission may fairly be implied. [ 89 ] I conclude the Applicants have not established, on the preponderance of the evidence, uninterrupted user of the land across the road as of right for a period of at least twenty years with the acquiescence of the owner.

DISPOSITION [ 90 ] The application is therefore dismissed and the interlocutory injunction is vacated. [ 91 ] The Third Respondent shall have his costs to be taxed pursuant to Rule 55, Appendix 1, Scale of Costs, Column 3, excluding any costs for the interlocutory injunction. [ 92 ] I make no other order as to costs. _____________________________ Peter A. O'Flaherty Justice