Shea v. Bowser, 2016 NSCA 18

Nova Scotia Court of Appeal Citation: Shea v. Bowser , 2016 NSCA 18 Date: 20160318 Docket: CA 435271 Registry: Halifax Between: James David Shea and Linda Shea Appellants v. Loyal F. Bowser and Wendy Lynn Bowser Respondents Judge: The Honourable Justice Elizabeth Van den Eynden Appeal Heard: November 19, 2015, in Halifax, Nova Scotia Subject: Right to relocate an express grant of right of way

Summary: The Sheas had an express grant of ROW which burdened the Bowser property. The application judge was asked to determine its location. The contentious aspect of his declaration is that he did not place the ROW in its original location as he found it to exist. Instead, in the interests of justice, he declared the ROW to be in a different location on the Bowser property. The Sheas appealed, arguing relocating an express ROW is a reversible error.

Absent agreement to relocate, abandonment, or extinguishment, none of which exist in this case, the Sheas assert it is their legal right to have the ROW in its original deeded location. This is so, notwithstanding such placement is more invasive to the Bowsers, and there might be practical reasons for the application judge wanting to relocate the ROW. Issues:

(1) Did the application judge have the authority to relocate a ROW created by express grant to a different location from the one originally granted?

(2) Did the application judge err in his cost award by only awarding the appellants 50% of their incurred expert fees? Result: Appeal allowed. This Court found the application judge did not have the authority to relocate the ROW. Respondents ordered to pay the full expert fees in the amount of $6,917.25 and costs on appeal of $1,500.00, inclusive of disbursements. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 9 pages. Nova Scotia Court of Appeal Citation: Shea v.

Bowser Estate , 2016 NSCA 18 Date: 20160318 Docket: CA 435271 Registry: Halifax Between: James David Shea and Linda Shea Appellants v. Loyal F. Bowser and Wendy Lynn Bowser Respondents

Judges: Beveridge, Farrar, and Van den Eynden, JJ.A. Appeal Heard: November 19, 2015, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Van den Eynden, J.A.; Beveridge and Farrar, JJ.A. concurring Counsel: Robert H. Pineo, for the appellant Mark J. Charles, for the respondent Reasons for judgment: Introduction [ 1 ] The location of the appellants’ deeded right-of-way (ROW) over the Bowser property is the subject of this appeal. Justice Peter Rosinski of the Supreme Court of Nova Scotia declared where the ROW is located in the decision under appeal ( 2014 NSSC 211 ).

The contentious aspect of his declaration is that he did not place the ROW in its original location as he found it to exist. Instead, he declared the ROW be located in a different location on the Bowser property because, in his view, it was not in the interests of justice to leave it in its original location. Background [ 2 ] This is the second time these parties have been before this Court. I will provide a brief

summary of the prior proceedings as this helps place this appeal in context. [ 3 ] The Sheas applied for a ROW declaration over the Bowser property. Whether they were entitled to a ROW and, if so, where it was to be located were issues on the original application. In a decision dated December 5, 2011 ( 2011 NSSC 450 ), Rosinski, J. determined the Sheas had an express grant of ROW; however, it did not burden the Bowser property. The application was dismissed. [ 4 ] The Sheas appealed to this Court and were successful in part ( Shea v. Bowser , 2013 NSCA 18 ).

This Court found the Sheas had an express grant of ROW which burdened the Bowser property. The matter was remitted to the Supreme Court to determine the location of the ROW. In the first appeal this Court stated: [27] In my view, the only conclusion the application judge could have come to on the evidence before him is that the rights-of-way to Lots A and B burdened the present-day Bowser Lot. The judge properly found there was an express right-of-way to the Sheas.

Having found that an express right-of-way existed, the question becomes whose land is burdened by that right-of-way. … […] [29] The location of the right-of-way is still in issue. As the application judge found that the express grant of right-of-way did not burden the Bowser Lot he did not need to go further and determine the location of that right-of-way. I realize that he looked at that issue and was unable to do so.

However, had he reached the proper conclusion as to the land burdened by the right-of-way, there may have been other means of determining the location of the right-of-way. [citation omitted] As a result, I would remit that aspect of the claim back to the Supreme Court for determination of the location of the right-of-way over the Bowser Lot to Lots A and B. [ 5 ] Justice Rosinski also heard the location application.

He described his task as follows: [4] Thus, my task at the reconvened application in chambers on June 5, 2014 was to identify the location of the right-of-way over the Bowser land which the Court of Appeal has stated exists in law. [ 6 ] It is apparent from the record the task of the application judge was simply to locate the deeded ROW on the ground. This he did by determining where the ROW was originally located. However, he was of the view, it was not in the interests of justice to place the ROW in the original location.

He declared the ROW be relocated elsewhere on the Bowser property. [ 7 ] The Sheas appeal, arguing that relocating an express ROW from its otherwise deeded location is a reversible error of law. Although the placement of the ROW in its original location is more invasive to the Bowsers, and there might be practical reasons for the application judge wanting to relocate the ROW, the Sheas assert it is their legal right to have the ROW in its original deeded location.

Absent agreement to relocate, abandonment, or extinguishment, none of which exist in this case, the appellants say the application judge could not arbitrarily change the location of a deeded ROW. [ 8 ] The appellants ask this Court to set aside the application judge’s decision and declare the ROW to be in the original location. Issues [ 9 ] The issues raised on appeal are: 1. Did the application judge have the authority to relocate a ROW created by express grant to a different location from the one originally granted?

2. Did the application judge err in his cost award by only awarding the appellants 50% of their incurred expert fees? Standard of Review [ 10 ] The first issue involves whether the application judge failed to properly apply the legal principles related to expressly granted easements of right of way. This involves a question of law. The standard of review is correctness ( Housen v. Nikolaisen, 2002 SCC 33 ). [ 11 ] The second issue involves whether the application judge improperly exercised his discretion. This attracts a deferential standard of review ( Dauphinee v. Fralick Estate, 2003 NSCA 128 ).

Analysis Did the application judge have the authority to relocate a ROW created by express grant to a different location from the one originally granted? [ 12 ] The short answer to this question is no. [ 13 ] The application judge did not identify any legal principles which could support his authority to relocate a ROW. [ 14 ] It will be clear from the applicable common law rules I will set out that absent abandonment, extinguishment, or mutual agreement by the parties to relocate, an express grant of ROW cannot simply be declared to exist elsewhere from its intended location.

To do so flies in the face of clearly established principles. [ 15 ] The task of the application judge was to determine the location of the deeded ROW, not to create a new one. Although relocating the ROW may seem fair and practical, these considerations do not determine the outcome. [ 16 ] Before setting out the applicable legal principles, I will review the evidence before the application judge and his determination of where the original ROW is located. [ 17 ] The original location of the deeded ROW was clearly apparent on the evidence.

The application judge had the benefit of a surveyor’s expert report and the report of a topographic mapping expert. These reports relied upon aerial photographs from 1964, 1974 and 2003 which depicted the location of the ROW. There were no photos from the year 1971, which is when the Sheas obtained title to their property. However, the 1974 aerial photograph was close in time. It clearly depicted a maintained and traveled way between the Osprey Road and the Old Main road through the Bowsers’ property.

The expert opined that “there was very little change in terms of width or location of the traveled way between the years 1964 and 1974, with the average width of the road being 8 feet.” [ 18 ] The application judge agreed.

He said: [27] It is reasonable to infer that the 1974 aerial photograph contains the most accurate depiction of “Gladys Muriel Bowser’s road” and the extent of the right-of-way to Lots A and B granted to the Sheas by the 1971 deeds. … He even goes further and refers to the additional confirmatory evidence by stating: [27] … Having gone back to look at the aerial photographs of 1982 and 1992, being Exhibits “C” and “D” at the initial hearing, with the assistance of a magnifying glass one can see that the road during those years was similarly located as it is shown in the 1974 aerial photograph. [ 19 ] At this point in his decision, the location of the express ROW was determined by the application judge.

The appellants argue, and I agree, that had the application judge stopped there and declared this to be the location of the ROW, no error would have resulted. [ 20 ] Having determined where the ROW was, the application judge then became influenced by several factors which led to his determination that the ROW should now be in another area. These factors included a lack of maintenance of the ROW, reduced use, and overgrown areas, to the point that by 1995 at least a portion of the ROW was, more likely than not, no longer passable by automobiles.

In addition, a new road had been established in a different location over the Bowser property. Although this new road was built without the agreement of the Sheas, the application judge determined it was to their benefit, as it allowed them renewed access by car to the Old Main Road.

Taken together, the above factors lead the application judge to the following conclusion: [32] It is not in the interests of justice to now cause to be rebuilt, in its original location closer to the house, the southern portion of the right-of-way granted across the Bowsers’ property to the Sheas. [33] As I understand it, the road shown in the 2003 aerial photograph remains representative of the road at present. That being the case it would be very much of any questionable benefit to anyone, even the Sheas, to rebuild in its original location the southern portion of the right-of-way granted.

Notably, the present location of the road/right-of-way actually provides easier, closer access to the properties of the Sheas. [34] I therefore declare that the right-of-way, expressly granted to the Sheas in the 1971 deeds, to allow them access to Lots A and B, is located where the present roadway is located on the Bowser property [subject to it being diverted if necessary to avoid encroaching on the adjacent property as identified by sketch 1C at Tab 4 of Mr.

Giovannetti’s report herein] running from the Ostrea Lake Road to what has been referred to as the “Old Main Road”. [35] Should the Sheas wish to more precisely delineate that roadway for purposes of registering their right-of-way, it will be their responsibility to have it surveyed, and to pay any consequent costs associated therewith.

[…] [38] I note that the roadway has been, and is likely of inconsistent width, and so an issue may arise as to the proper width of the right-of-way. Mr. Lumsden in his report contained within that of Mr. Giovannetti, stated at page 3: … the traveled way clearly connected [Ostrea] Road and the Old Main Road through the Bowser lot and appeared to be well maintained. There was very little change in terms of width or location of the traveled way between the years 1964 & 1974, with the average width ofthe road being 8.0 feet. [39] I therefore declare the right-of-way to be 8 feet in width.

I do not intend hereby to rescind or diminish the original obligation onthose receiving the benefit of the right-of-way to help maintain it. [21] I now turn to briefly review the well-established common law principles which demonstrate the application judge erred inrelocating the Sheas’ ROW. [22] Counsel for the respondents acknowledges the common law does not support the application judge’s decision. Rather,respondent counsel argues equitable principles should allow the application judge to relocate the ROW. That submission was madewithout supporting jurisprudence and is contrary to existing authority.

This is not a balancing of rights or equity-based issue. [23] A right-of-way is a limited and exceptional right. Generally speaking, a right-of-way, including its location, is defined by thegrant of that right-of-way and by the circumstances surrounding it. (See Halsbury’s Laws of England, 4th ed., vol. 14, at p. 26.) Oncethe location of the right-of-way has been decided, neither the dominant owner nor the servient owner may unilaterally change itslocation. There might be some limited exceptions to this general rule; however, none apply to this case. (See Gormley v. Hoyt, [1982]N.B.J. No. 365 (C.A.); Wells v.

Wells (1994), (NS SC), 132 N.S.R. (2d) 388 (S.C.); Deal v. Palmeter, 2004 NSSC190; Heslop v.

Bishton, [2009] EWHC 607 (Ch).) [24] Factors such as overgrowth, increased cost and effort to open a new way, and the existence of the alternate way are not a basisupon which the common law allows a court to move the location of a right of way “in the interests of justice.” (See Gormley; Deal;Halsbury’s, p. 77.) [25] A dominant owner has ancillary rights which allow for the reopening of a right-of-way, even in circumstances where it has beenrendered impassable. (See Halsbury’s, at pp. 10-11.) In this case, the remedy available to the dominant owner through the common lawis to repair or reconstruct the road over the current right-of-way. [26] A right-of-way acquired through express grant may be altered through abandonment or agreement. (See West HighDevelopment v.

Veeraraghaven, 2011 ONSC 1177.) Absent these circumstances, which do not exist in this case, or applicablelegislation, courts cannot themselves alter the location of a right-of-way, nor will they allow either party to unilaterally do so. (SeeGormley.) This is so even if a failure to relocate leads to unequitable consequences for one or both of the parties. (See Deal.) [27] Property law has its own particular, and at times rigid, set of rules. Courts uphold these rules even though that might result inoverturning what may otherwise be a fair result and of benefit to both parties. (See Gormley; Deal; Crowther v.

Shea, 2005 NBCA 97.) [28] As the application judge did not have the authority or jurisdiction to relocate the ROW, I would allow this ground of appeal. For relief, the appellants ask this Court to declare the ROW to be in the original location. In my view, this is an appropriate case to grantsuch relief.

The record supports this relief, particularly given that the application judge made this factual determination before he erredin ordering the ROW be in another location. [29] Accordingly, I would declare that the right-of-way, expressly granted to the Sheas in their 1971 deeds to allow them access toLots A and B, is located as depicted in the 1974 aerial photograph. I would declare the width to be eight feet. This width is consistentwith the expert evidence which was accepted by the application judge.

Did the application judge err in his cost award by only awarding the appellants 50% of their incurred expert fees? [30] The application judge had this to say about costs: [42] Generally costs are awarded to the party seen to be “successful” in the matter. [43] To the extent that the Sheas will have a declaration confirming their right-of-way over the property of the Bowsers, they may besaid to have been “successful”. However, their success in that respect was all but guaranteed by the decision of the Nova Scotia Court ofAppeal.

The only dispute that remained was the precise location of the right-of-way on the Bowser property. […] [57] Considering the above-noted, and the circumstances generally of this case, I am of the view that the parties should bear their owncosts. [58] However, as to the cost of the report of Mr. Giovannetti and his attendance in court, I order that 50% of those costs be paid for byMrs. Bowser. Those expenses are fairly and reasonably accounted for in the invoices submitted to the Court by Mr. Pineo’s June 18,2014 letter. The total of Mr. Giovannetti’s invoices are $6,917.25. Therefore, Mrs.

Bowser will be responsible to pay the Sheas$3,458.62 as her half of the contribution.

[ 31 ] Given the appellants’ success on their first ground of appeal, I no longer need to analyze whether the alleged costs error still amounts to an improper exercise of the judge’s discretion. [ 32 ] As is obvious from his decision, the cost outcome was impacted by the application judge’s view on the parties’ success. Being, although the original ROW was determined to be where the Sheas asserted, they did not succeed in having it placed there.

The application judge otherwise relied upon the expert report and found the expenses to have been reasonably incurred. [ 33 ] As a result of the appellants’ success on the first ground of appeal, it follows (given the reliance upon and reasonableness of the expert fees) they be paid in full by the respondents. I would so order in the amount of $6,917.25. Costs on Appeal [ 34 ] On appeal, I would award costs to the appellants of $1,500.00, inclusive of disbursements. Van den Eynden, J.A. Concurred in: Beveridge, J.A. Farrar, J.A.