Klimack et al v Kroeker et al, 2020 MBCA 98

Citation: Klimack et al v Kroeker et al, 2020 MBCA 98 Date: 20201007 Docket: AI19-30-09324 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen BETWEEN : allen richard klimack and ) Martha klimaCk ) ) (Applicants) Respondents ) ) - and - ) ) richard kroeker and joanne ) Lagasse-kroeker ) ) T. G. Frohlinger and (Respondents) Appellants ) J. D. H. King ) for the Appellants - and - ) (via videoconference) ) John William mccaughey ) L. R.

Minuk ) for the Respondents (Respondent) ) (via videoconference) ) (by original application) ) Appeal heard: ) May 27, 2020 AND BETWEEN : ) ) Judgment delivered: allen richard klimack and ) October 7, 2020 Martha klimaCk ) ) (Applicants) Respondents ) ) - and - ) ) richard kroeker and joanne ) Lagasse-kroeker ) ) (Respondents) Appellants ) ) - and - ) ) The estate of john William ) mccaughey, deceased ) ) (Respondent) ) ) (by order dated August 7, 2019) ) COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice.

On appeal from 2018 MBQB 180 PFUETZNER JA

[ 1 ] This appeal concerns the law of prescriptive easements. At issue is an unregistered access road, affecting three cottage properties on West Hawk Lake in Manitoba, which had been used for 57 years. [ 2 ] The access road starts at the main public road and crosses Lot 21 (owned by the respondents, the Kroekers), through Lot 20 (owned by the respondent, McCaughey) and ends at Lot 19 (owned by the applicants, the Klimacks). The access road was built in 1960 by the then-owners of the three lots.

There was never any written agreement but there was evidence that there was an understanding at the time that only one vehicle would be parked at each lot (the parking arrangement). The successive owners used the access road without interruption until November 2017 when the Kroekers placed a boulder across the entrance of the access road. [ 3 ] The Klimacks applied for a declaration of a prescriptive easement over Lots 20 and 21, with McCaughey taking no position. The application judge applied

section 2 of The Prescription Act 1832 (UK), 2 & 3 Will IV, c 71 (the 1832 Act ), which provides for 20-year and 40-year prescriptive easements in certain circumstances, and granted the application. The Kroekers appeal, arguing that the application judge made reversible errors of fact and law.

Issues [ 4 ] The Kroekers raise three primary issues on the appeal. [ 5 ] First, they say that the application judge misapprehended the evidence and made a palpable and overriding error in failing to find that the use of the access road by the Klimacks and their predecessors in title to Lot 19 (the owners of the dominant lot) was a neighbourly accommodation by oral permission of the predecessors in title to Lots 20 and 21 (together with the Kroekers and McCaughey, the owners of the servient lots).

Similarly, they argue that the application judge made a palpable and overriding error when he found that the owners of the servient lots acquiesced in the use of the access road by the owners of the dominant lot.

The Kroekers maintain that, if the application judge had not made these factual errors, he would not have found a prescriptive easement. [ 6 ] Second, the Kroekers say that the access road is incapable of forming the subject matter of a grant (a requirement for an easement, as will be explained) since the parking arrangement and other alleged conditions contain positive obligations that cannot run with the land. [ 7 ] Finally, the Kroekers submit that the application judge erred in finding that the Klimacks had shown that the owners of the dominant lot had used the access road for the required period of time to establish a prescriptive easement.

The Kroekers argue that the time period restarted each time there was a change in ownership of the servient lots. Analysis The Law of Prescriptive Easements [ 8 ] In order to understand the context of the issues raised on this appeal, I will review the law of prescriptive easements in Manitoba. [ 9 ] As previously mentioned, the application judge applied

section 2 of the 1832 Act in granting the application. I expect most people would be surprised to learn that a 19th century English statute, that appears nowhere in Manitoba’s statute books, governs an important aspect of real property law in this province. This situation arises from the fact that, when Manitoba joined Confederation in 1870, the laws of England were adopted as received law in the province.

This continues to be the case except to the extent that such laws have subsequently been amended. [ 10 ] Section 33(1) of The Court of Queen’s Bench Act , CCSM c C280 , indicates that the courts are to apply the laws of England as they existed on July 15, 1870 with respect to property and civil rights unless they have been changed by legislation or by a rule or order of the Court. [ 11 ] The provision states: Application of laws of England 33(1) The court shall decide all matters relative to property and civil rights according to the laws of England as they existed on July 15, 1870, insofar as they can be made applicable to matters relating to property and civil rights in the Province, except as they may have been changed or altered by (

a) an Act of the Legislature or of the Parliament of Canada; (

b) an Act of the Parliament of the United Kingdom affecting the province and enacted before the coming into force of the Statute of Westminster, 1931; or (

c) a rule or order of the court. [ 12 ] Unfortunately, there is no official list of which laws of England that existed on July 15, 1870 remain in force in Manitoba. This leaves Manitobans in the unsatisfactory position of having to act as legal sleuths in order to determine the laws to which they are subject. Such detective work would involve determining whether an English law affecting property and civil rights, in force on July 15, 1870, was changed or altered by federal or provincial legislation after July 15, 1870, or whether the United Kingdom’s

Parliament enacted a law affecting Manitoba between 1870 and 1931 which had the effect of changing or altering those provisions. [13] While other Canadian provinces also adopted the 1832 Act as received law upon joining Confederation, Manitoba is theonly province that still retains it (see Halsbury’s Laws of Canada (online: Lexis Advance Quicklaw), Real Property, “Easements: Establishment and Acquisition of Easements: Legal Easements: Prescriptive Easements: Statutory Prescription: General” (IV.2.(1)(d)(iii)(A)) at HRP-312 “Purpose” (2016 Reissue)).

Prescriptive easements are specifically prohibited by legislation in British Columbia,Alberta and Saskatchewan—the other provinces with a Torrens land registry system similar to Manitoba’s (see Manitoba Law ReformCommission, Report on Prescriptive Easements and Profits-À-Prendre, Report 48 (18 January 1982) at 18, online (pdf): Manitoba LawReform <www.manitobalawreform.ca/pubs/pdf/archives/48-full_report.pdf> (date accessed 10 September 2020) (the MLRC Report)).

Indeed, in the MLRC Report (see p 24), the Manitoba Law Reform Commission recommended that all existing methods of acquiringprescriptive easements in Manitoba be abolished.

Other provinces, such as Ontario, have incorporated provisions of the 1832 Act intotheir own legislation (see, for example, sections 31 and 32 of the Real Property Limitations Act, RSO 1990, c L 15, which are essentiallycopies of sections 2 and 4 of the 1832 Act). [14] This unenviable state of affairs is compounded by the fact that the 1832 Act has been called “one of the worst draftedActs on the Statute Book” (MLRC Report at p 9, quoting the UK, Law Reform Committee, Fourteenth Report (Acquisition of Easementsand Profits by Prescription) (Cmnd 3100, 1966) at para 40).

In Kaminskas v Storm, 2009 ONCA 318, Blair JA wrote (at para 25): “Thewording of these sections is tortuous at best.” In my view, sections 2 and 4 of the 1832 Act live up to these criticisms. These provisionsstate, with the relevant portions underlined: 2 In claims of right of way or other easement the periods to be twenty years andforty years.

No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to anywatercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the King, or beingparcel of the duchy of Lancaster or of the duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate,when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right theretowithout interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter wasfirst enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which thesame is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed asaforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the samewas enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. 4 Before mentioned periods to be deemed those next before suits.

Each of the respective periods of years herein-before mentioned shall be deemed and taken to be the period next before some suit oraction wherein the claim or matter to which such period may relate shall have been or shall be brought into question and that no act orother matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall besubmitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person makingor authorizing the same to be made. [15] Manitoba courts have consistently accepted that the prescriptive easement provisions contained in the 1832 Act apply inManitoba (see Huddlestone v Love (1901), (MB KB), 13 Man R 432 (QB); Stall et al v Yarosz et al (1964), (MB CA), 43 DLR (2d) 255 at 258 (Man CA); Blankstein v Walsh, 1988 CarswellMan 169 at paras 24-25 (QB), aff’d 1989CarswellMan 168 (CA); and RPM Farms Ltd et al v Laurence Jay Rosenberg et al, 2019 MBQB 140 at paras 22, 66). [16] So what is the law of prescriptive easements in Manitoba?

First, while there are several types of easements, as I willexplain, each type has four common characteristics. As stated by Freedman JA in Willman v Ducks Unlimited (Canada), 2004 MBCA153 (at para 32): The parties are agreed on the required elements of an easement, which have long been recognized as each being essential, before aninterest in land can be found to be an easement.

As summarized by Evershed M.R., for the English Court of Appeal, in In reEllenborough Park, [1956] 1 Ch. 131 at 163, they are: (1) there must be both a dominant tenement and a servient tenement: (2) an easement must “accommodate” the dominant tenement: (3)dominant and servient owners must be different persons, and (4) a right over land cannot amount to an easement, unless it is capable offorming the subject-matter of a grant.

Also see Bruce Ziff, Principles of Property Law, 7th ed (Toronto: Thomson Reuters, 2018) at 421-24. [17] Turning to the types of easements, they are created in one of only two ways: by statute or by grant. Grants of easementmay be express grants, inferred grants or presumed (prescriptive) grants (see Rt Hon Lord Mackay, ed, Halsbury’s Laws of England: Real Property and Registration, 5th ed, vol 87 (London, UK: LexisNexis, 2012) at paras 847-48 (Halsbury’s England)).

With respect topresumed or prescriptive easements, Ziff explains how these are equated to grants (at p 432): The common law recognizes that rights to an easement may emerge out of continuous use, under “a judicially-endorsed piece of piousperjury” . . . known as prescription. Put frankly, the law pretends that an easement was granted at some time in the past, as evidenced by

long, uninterrupted use. The doctrine protects reliance on, and enjoyment of, long-held and unchallenged rights. . . . [emphasis added] Dewar J’s decision in RPM Farms provides an excellent

summary of the law of prescriptive easements at paras 25-31. [ 18 ] The criteria to establish a prescriptive easement, in addition to the four characteristics common to all easements, are: (1) the use and enjoyment of the easement must have been uninterrupted for the prescribed time period (to be discussed further); and (2) the easement was used and enjoyed throughout the prescribed time period “as of right”—that is, without force ( nec vi ), without secrecy (nec clam ) and without permission ( nec precario ). [ 19 ] The second criterion, that the use relied upon by the claimant must be “as of right”, requires further comment.

The claimant must show that he or she used the easement as if entitled to do so (see MLRC Report at p 6; and Halsbury’s England at para 884). [ 20 ] With prescriptive easements, permission is essentially the antithesis of the use being “as of right”. If the claimant has used the easement with the permission or consent of the servient owner, then the use will not be “as of right”. Likewise, if the claimant makes payments from time to time, the use will not be “as of right” (see MLRC Report at p 6; and Halsbury’s England at para 887). [ 21 ] What the courts seek is acquiescence by the servient owner.

As noted by Ziff (at p 435): Somewhere between these very close poles – between a use that is not objected to, but not permitted – one finds the servient owner who acquiesces in, or does not complain about or impede, the exercising of easement-like rights. . . . When that occurs, a claim to an easement through prescription can succeed. . . . [ 22 ] Whether the use is permissive or “as of right” is a question of fact (see Blankstein at para 29). [ 23 ] I will now turn to the specific issues raised on this appeal.

First Issue—Permission or Acquiescence? [ 24 ] As previously explained, the question of whether the use of land by a non-owner is permissive or as of right is a question of fact. Here, the application judge found that “[t]here is also no evidence that the use of the access road was forcible, secret or obtained by written permission” (at para 14). He also found that “the owners of the servient tenements acquiesced in the use of the access road” and “that use of the access road was not dependent on the consent of the owners” (at para 32).

Importantly, he found “the use of the access road to be ‘as of right’” ( ibid ). [ 25 ] The Kroekers argue that the application judge made factual errors by not giving effect to evidence, including the evidence of Mr. Kroeker that use of the access road by the owners of the dominant lot was by agreement with the owners of the servient lots and not through acquiescence.

The Klimacks submit that the application judge did not misapprehend the evidence and made no error in his factual findings. [ 26 ] I am not persuaded that the application judge misapprehended evidence or made any palpable and overriding errors in his factual findings. He carefully reviewed the evidence and provided cogent reasons why he accepted certain evidence and assigned little or no weight to other evidence. There is no basis for appellate interference.

Second Issue—Capacity to Form Subject Matter of a Grant [ 27 ] As I have indicated, the fourth characteristic common to all easements is that the right comprising the easement must be capable of forming the subject matter of a grant.

What this means, in essence, is that there must be a “grantor” and “grantee” with legal capacity; the right over the servient land must not be overly vague or uncertain; the right cannot confer an entitlement amounting to possession of the land; and the right must be within the category of currently recognised easements (see Ziff at p 424; and Ellenborough Park, In re , [1956] 1 Ch 131 at 164 (CA (Eng)), [1955] EWCA Civ 4 (BAILII)) . [ 28 ] The Kroekers argue that the use of the access road by the owners of the dominant lot is incapable of forming the subject matter of a grant of a prescriptive easement because the access road’s conditions of use “include positive obligations that cannot run with the land and constitute incapable subject-matter.” In particular, the Kroekers assert that the parking arrangement and other alleged conditions were positive conditions of use of the access road. [ 29 ] The Klimacks submit that the application judge considered this argument and did not find that there were any conditions associated with the use of the access road. [ 30 ] In my view, the application judge made no palpable and overriding error in not finding that there was a positive, or any, condition associated with the use of the access road.

To the extent that there was a verbal agreement establishing the parking arrangement, it cannot be considered a condition of the easement.

The easement arises, and its scope is determined, solely on the basis of the use of the access road. [ 31 ] While not necessary to dispose of this issue, I will also comment briefly on the Kroekers’ assertion that, at law, a positive obligation cannot run with the land and results in the use of the access road being incapable of forming the subject matter of a grant. [ 32 ] Most of the cases cited by the Kroekers in support of this submission relate to covenants as opposed to prescriptive easements (see Canada Safeway Ltd v Thompson (City) , 1996 CarswellMan 401 (QB) ; 4348037 Manitoba Ltd v 2804809 Manitoba Ltd ,

2003 MBQB 123 ; and Aquadel Golf Course Limited v Lindell Beach Holiday Resort Ltd , 2009 BCCA 5 ). This distinction is important since a covenant is a contractual promise, whereas a prescriptive easement arises from long, unimpeded use of land without permission and contractual principles have no relevance. [ 33 ] The issue of whether a covenant can run with the land typically arises where there is a dispute over a promise relating to the use of the land and there is no privity of contract between the parties since title to the land has passed from the original covenantor and covenantee.

It is settled law that, in the absence of privity of contract, a positive covenant (that is, one that requires the expenditure of money or the doing of some act) is not enforceable and, so, does not run with the land (see 4348037 Manitoba Ltd at para 8 ; Lohse v Fleming , 2008 ONCA 307 at para 14 ; and Aquadel at para 9). [ 34 ] Covenants do have similarities to easements. Of particular importance in this case is that an owner subject to an obligation under a positive covenant is in a similar position to an owner of a servient tenement subject to an easement.

In other words, the person (the dominant owner) who benefits from another’s property or promise seeks to have this benefit enforced against that other person (the servient owner). [ 35 ] For example, in Lohse , the plaintiffs sought to enforce a covenant that would have required the defendants to maintain a well and underground pipes on the defendants’ property that supplied the plaintiffs’ property with well water. The plaintiffs also sought a declaration that they had an easement entitling them to a supply of water from the well on the defendants’ property.

The Court of Appeal upheld the trial judge’s decision to dismiss the plaintiffs’ claims, writing (at paras 16-17): . . . [H]aving regard to the nature of the water system and the steps required to ensure the flow of water to the [plaintiffs’ property], it was open to the trial judge to find that the supply of water entailed positive acts on the part of the [defendants].

Having made that finding, the trial judge was on solid ground in concluding that the positive nature of this obligation prevented the [plaintiffs] from obtaining an easement, and that absent privity of contract, this positive covenant could not run with the land . . ..

See also Hanisch v McKean , 2013 ONSC 2727 at para 103 . [ 36 ] The difficulty with the Kroekers’ argument is that the parking arrangement that they put forward as a positive covenant or obligation that prevents the obtainment of an easement is not an obligation that rests upon them as the owners of a servient lot; rather, they claim that it is an obligation on the Klimacks who own the dominant lot. In effect, the Kroekers are attempting to argue that the Klimacks cannot have an easement over the Kroekers’ land because the Klimacks are subject to an unenforceable condition that cannot run with the land.

As the cases cited by the Kroekers indicate, this argument is only successfully made to resist an easement where the servient owner, not the dominant owner, is subject to an unenforceable condition. [ 37 ] Accordingly, the circumstances of the present case are not at all analogous to the cases cited by the Kroekers in support of their assertion that these legal principles apply.

Third Issue—Each Transfer of the Servient Lots Restarts the Clock [ 38 ] The Kroekers argue that, if the arrangement for use of the access road was, in fact, an oral permissive licence at the outset, the 40-year time period for the establishment of a prescriptive easement restarted each time title to the servient lots changed. I understand this argument to be that, while a 40-year easement is not defeated by oral permission (see RPM Farms at para 29), the 40- year period restarts every time there is a change in ownership as the oral permission must be renewed by the new owner.

Counsel was unable to point to jurisprudence supporting this position. [ 39 ] In any event, at the end of the day, this argument cannot succeed simply because, as I have already explained, the application judge properly found that no such oral permission was given by any of the owners of the servient lots. [ 40 ] Accordingly, I would not give effect to this ground of appeal. Conclusion [ 41 ] For all of these reasons, I would dismiss the appeal with costs to the Klimacks on the basis of Tariff C. JA I agree: JA I agree: JA