Jessome v. Beaton, 2018 NSCA 91

Nova Scotia Court of Appeal Citation: Jessome v. Beaton , 2018 NSCA 91 Date: 20181121 Docket: CA 475329 Registry: Halifax Between: James Jessome Appellant v. Kyle David Beaton Respondent Judges: Derrick, Oland and Hamilton, JJ.A. Appeal Heard: November 21, 2018, in Halifax, Nova Scotia Written Release: November 21, 2018 Held: Appeal dismissed per oral reasons for judgment of Derrick, J.A.; Oland and Hamilton, JJ.A. concurring.

Counsel: Alan Stanwick, for the appellant Sean MacDonald, for the respondent Reasons for Judgment: (Orally) [ 1 ] James Jessome has appealed the decision of Justice Frank Edwards dismissing his application for a declaration and other relief in relation to an alleged right-of-way, referred to as an unnamed lane, over the lands of Kyle Beaton at 159 MacIntyre Road, Scotch Lake, Nova Scotia. We are satisfied his appeal should be dismissed. [ 2 ] Justice Edwards made explicit and well-reasoned factual and credibility findings and concluded that: (1) there was uncontradicted evidence Mr.

Jessome had previously used an alternate route to access his property at 147 MacIntyre Road, Scotch Lake;

(2) Mr. Jessome had not provided sufficient evidence to establish on a balance of probabilities that he or his predecessors in title had made continuous, uninterrupted and open use of the unnamed lane at any time for a period of 20 years; and (3) the existence and use of a gate installed across the lane by Mr. Beaton’s uncle and predecessor in title supported the inference that Mr. Jessome had used the lane with permission. [ 3 ] Dissatisfied with the result from the court below, Mr. Jessome is effectively seeking a re-trial. There is no basis for appellate intervention in this case.

We have examined Justice Edward’s decision for palpable and overriding error and found none. A careful review of the record establishes that his findings are amply supported by the evidence. [ 4 ] The appeal is dismissed with costs in the amount of $2000 inclusive of disbursements. Derrick, J.A. Concurred in: Oland, J.A.

Hamilton, J.A.