Schroeder v Jackson, 2019 SKCA 119

Court of Appeal for Saskatchewan Docket: CACV3125 Citation: Schroeder v Jackson , 2019 SKCA 119 Date: 2019-11-18 Between: Debbie Schroeder Appellant (Plaintiff/Applicant) And Michael Jackson and Helen Jackson Respondents (Defendants/Respondents) Before: Caldwell, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Leurer On Appeal From: 2017 SKQB 238 , Regina Appeal Heard: September 16, 2019 Counsel: Kevin T. Miller for the Appellant Ian D.

McKay, Q.C. for the Respondent Caldwell J.A. I. Introduction [ 1 ] Debbie Schroeder brought an action against Michael and Helen Jackson alleging that she owned the dominant tenement under an easement and that the easement afforded her right-of-way access over the Jacksons’ land. Ms. Schroeder and the Jacksons are neighbours in the Riverside subdivision of Regina, Saskatchewan (Plan K4654). As relief, Ms. Schroeder sought an injunction ordering the Jacksons to remove a fence they had erected on their land, which blocked Ms.

Schroeder’s access to her backyard, and ordering the Jacksons to allow her right-of-way access over the most southerly 20 feet of the their backyard. [ 2 ] When the matter came before the Court of Queen’s Bench by agreement under a

summary judgment application, the Chambers judge dismissed Ms. Schroeder’s action with party and party costs awarded to the Jacksons. Ms. Schroeder appealed against that result. For the reasons that follow, I would dismiss the appeal with costs to the Jacksons. II. background [ 3 ] Ms. Schroeder’s property may be described as the Northerly 135 feet of Lot 4, Block 507, Plan K4654 [Schroeder Property]. The Jacksons’ property lies immediately to the west and may be loosely described as the Northerly 135 feet of Lot 3 and of 10 feet of the width of Lot 2, Block 507, Plan K4654 [Jackson Property].

Two other properties are involved in this appeal, namely, the Northerly 135 feet of Lot 1 and of 17 feet of the width of Lot 2, Block 507, Plan K4654 [Hunter Property] as well as the Southerly 40 feet of Lots 1, 2, 3 and 4, Block 507, Plan K4654 [Knox Property]. These properties are as shown below: Robinson Street Leopold Crescent Lot 1 Lot i 2 Lot 3 Lot 4 Hunter Property Jackson Property Ease ment Knox Pro perty Back Alley [ 4 ] Some historical background is necessary to understand Ms. Schroeder’s claim.

Herbert Samuel McClung took the original title to Lot 1 and Lot 2 of Block 507, Plan K4654 [Lot 1 and Lot 2] in September 1916. Three years later he acquired Lot 3 and Lot 4 of Block 507, Plan K4654 [Lot 3 and Lot 4]. At that time, each of the four Lots was 175 feet in length and 27 feet in width. There was no evidence as to when or how Lot 2 was split between what is now the Hunter Property and the Jackson Property.

[5] In 1927, Mr. McClung built a dwelling on Lot 4, which is the dwelling currently owned by Ms. Schroeder. In 1928, he built adwelling on Lot 3. This is now the Jackson residence. Later in 1928, Mr. McClung transferred what is now part of the Jackson Property toLouisa Ellen Westbrook, namely, the Northerly 135 feet of Lot 3. The instrument of transfer [Transfer] also created an easement in respectof a right-of-way over the Southerly 20 feet of the Northerly 135 feet of Lot 1 and Lot 2, which was itself made subject to a right-of-wayover the Southerly 20 feet of the Northerly 135 feet of Lot 3 [Right-of-Way].

The Right-of-Way afforded Ms. Westbrook access to herproperty (namely, Lot 3) through Lot 1 and Lot 2, which, along with Lot 4, Mr. McClung owned at that time. The legal land descriptionon the title issued to Ms. Westbrook [Instrument DG490] and endorsements on the back of that title record the registration of the easementin September 1928. A few days later, Mr. McClung and Clarence A.

Richardson registered a caveat against Lot 3 under instrumentDD4011 “[a]s to the S 20 feet of the N 135 feet of Lot 3, Blk 507”, but that caveat was not adduced by either party. [6] Although the Transfer had referred initially to Lot 4 in relation to the right-of-way, that reference had been stroked out(ostensibly by Mr. McClung) before its registration in the Land Titles Registry. It is undisputed that the Land Titles Registry has at notime recorded Instrument DG490, the Right-of-Way or any other easement running in favour of Lot 4. Ms.

Schroeder’s position in heraction against the Jacksons has been that Instrument DG490 nonetheless granted rights of access to Lot 4 over Lots 1, 2 and 3, andtherefore, as the current owner of Lot 4, she is entitled to exercise those in rem rights. [7] A few other details are necessary to complete the story. In 1928, Mr. McClung built a house on Lot 1 and part of Lot 2, whichis now the Hunter Property. In 1936, the City of Regina acquired the Southerly 40 feet of Lots 1, 2, 3 and 4 for unpaid taxes and, in 1941,that land became what is now the Knox Property through consolidation. Prior to this occurring, Mr.

McClung would have had access toLot 4 through a back alley that ran behind its then 175 foot length. That alley still exists but 40 feet of the Knox Property now standsbetween it and what is now the Schroeder Property (see map above). [8] The Jacksons acquired their property in 2001. Ms. Schroeder acquired Lot 4 in 2004. Sometime after she acquired Lot 4,Ms. Schroeder tried to negotiate an easement in favour of Lot 4 over the Jackson Property but was unsuccessful. III.

summary judgment [9] The sole issue in Ms. Schroeder’s

summary judgment application was whether she, as the owner of Lot 4, was entitled to thebenefits of the Right-of-Way easement created by the Transfer and recorded under Instrument DG490. In his reasons for judgmentdismissing Ms. Schroeder’s claim, the Chambers judge wrote: [22] Based upon the materials and extensive information filed, mostly as contained in the Schroeder affidavit, there are a number ofinescapable factual conclusions that must be reached.

There is no question that a close and careful examination of the registered land titlesoffice transfer document DG490 that created the easement, the benefit of which is now sought by Ms. Schroeder, refers only to Lots 1, 2and 3 and not Lot 4 of Block 507, Plan K4654. It is also clear that ever since the easement was created by DG490 (by the transfer datedAugust 24, 1928 transferring Lot 3 to Ms. Westbrook) the easement was registered on the titles to Lots 1, 2 and 3 but not Lot 4. [23] Counsel for Ms.

Schroeder submits that the McClung title over Lots 3 and 4 in Exhibit O to the Schroeder affidavit contains, innote 3 at the rear of the title, reference to DG490. Counsel submits that is sufficient to establish that it was the intention of McClung toextend the easement contained in the transfer document DG490 to also benefit Lot 4. I do not agree with, nor do I accept, this submission. [24] Notation #3 on Exhibit O clearly notes the transfer out, from the McClung title to Lots 3 and 4, Lot 3 to Ms. Westbrookoccasioned by the transfer document DG490 leaving McClung’s title covering only Lot 4.

That registrar’s notation could not be intendedto amend the nature and extent of the easement specifically granted by DG490 containing, as it does, a very particular and carefully drawnscope of easement and its application. Any reason McClung may have had to not extend the benefit of the easement to include Lot 4 wouldonly have been known to him and it is buried along with his remains. There is nothing in the material to suggest otherwise and much toconfirm and reaffirm the nature and the scope of the intended easement and its application—namely applying only to Lots 1, 2 and 3 butnot 4.

The registration of the notice of the easement on all subsequent titles issued for Lots 1, 2 and 3 and non-registration of any notice ofthe easement on any subsequent title issued for Lot 4 speaks for itself. Lot 4 was not intended to be included in the scope of the benefits(and burdens) conveyed by the grant of this easement. [25] To conclude otherwise would, in effect, invite the court to amend the easement and create new legal rights, duties and obligationsaffecting the current owners of Lots 1 to 4. I have concluded that is not available in law or in equity.

It is well recognized, as a generalprinciple of law, that a court cannot and should not make new agreements for parties where agreement does not exist. … [27] The situation in Montador [v Cerenzia, (BC CA), [1992] 1 WWR 439 (BCCA)] stands in stark contrast to thesituation we have in this case. As I have noted, the underlying instrument creating the easement in this case, namely transfer DG490, isvery specifically and carefully worded. The metes and bounds description of the easement includes only Lots 1, 2 and 3 and not Lot 4.

Thescope of the easement is also consistently reflected in the registration of it on all subsequent titles issued respecting Lots 1, 2 and 3. Noregistrations of the easement were ever registered on the titles to Lot 4 other than when reference was made to it in the McClung title toboth Lots 3 and 4 concurrently with the transfer out of Lot 3 by instrument DG490.

The subsequent registrations, and in the case of Lot 4non-registration, of the easement is consistent with and reflects the scope of the easement as originally granted by DG490. [28] Nor does the fact that other prior owners of Lots 1 and 3 (including as they do portions of Lot 2) may have accommodated the useof the right-of-way created by the easement by prior owners of Lot 4 have any impact upon the status of the parties’ legal rights andobligations under and to the easement.

The latter is a legal issue not one of “neighbourliness.” [29] In the result, I find that the applicant and her Lot 4 have no legal right and entitlement to the easement for which she applies to thisCourt. I accordingly must and do dismiss her application. A declaratory order to that effect may issue as a consequence of this judgment.

IV. Appeal [ 10 ] Ms. Schroeder asserts that, in the analysis that led the Chambers judge to dismiss her claim, he erred in law when interpreting Instrument DG490, and the Right-of-Way, and failed to consider extrinsic evidence relevant to that

interpretation. [ 11 ] In particular terms, Ms. Schroeder submits the Chambers judge’s

interpretation of Instrument DG490 results in an absurdity that gives no meaning to the Right-of-Way granted over Lot 3. In her estimation, the grant of the Right-of-Way in 1928 over Lot 3 only makes sense if it is interpreted as a grant of access over Lot 3 in favour Lot 4. However, with almost the same breath, Ms. Schroeder admits that Instrument DG490 does not identify any land as the dominant tenement of the Right-of-Way over Lot 3 and that the Land Titles Registry has never recorded Instrument DG490, the Right-of-Way or any easement as running for the benefit of Lot 4. It is also plain that Mr.

McClung would have had access to Lot 4 through a back alley until as late as 1936. [ 12 ] The Jacksons say the Chambers judge correctly interpreted Instrument DG490 and the Right-of-Way it sets out. In this regard, the Jacksons argue the undisputed facts and the law simply leave no room for the

interpretation of Instrument DG490 that Ms. Schroeder advanced before the Chambers judge. In this regard, the Jacksons draw the Court’s attention to ss. 58 and 77(1) of The Land Titles Act , RSS 1920, c 67 , which were in force when Instrument DG490 was registered in the Land Titles Registry and which provided: 58

(1) After a certificate of title has been granted no instrument shall until registered pass any estate or interest in the land therein comprised, except a leasehold interest not exceeding three years where there is actual occupation of the land under the same, or render such land liable as security for the payment of money except as against the person making the same.

(2) Every instrument shall become operative according to the tenor and intent thereof when registered and shall thereupon create, transfer, surrender, charge or discharge, as the case may be, the land, estate or interest therein mentioned . … 76

(1) When an easement or incorporeal right, in or over any land for which a certificate of title has been granted, is created for the purpose of being annexed to or used and enjoyed together with other land for which a certificate of title has been granted, the registrar shall make a memorandum of the instrument creating such easement or incorporeal right upon the folios of the register which constitute the existing certificate of title of the dominant and servient tenements respectively and upon the duplicates thereof . (Emphasis added) [ 13 ] The Jacksons point to the undisputed fact that Instrument DG490 makes no reference to Lot 4 and is not now and has never been registered on the title to Lot 4.

They say there is no suggestion this lack of reference or lack of registration resulted from an oversight or error on the part of the Land Titles Registry. The Jacksons cite Dundee Realty Corporation v Harvard Developments Inc. , 2011 SKQB 74 , 369 Sask R 221, as standing for the proposition that an interest in land cannot be created by parol evidence. Pulling this all together, the Jacksons respond to Ms.

Schroeder’s appeal by saying the Chambers judge was not lawfully entitled to infer the existence of an easement or right-of-way that burdened Lots 1, 2 and 3 to the benefit of Lot 4. [ 14 ] As is evident from his reasons, the Chambers judge had full appreciation of what Instrument DG490 said on its face, of the undisputed facts of its registration, and of the extrinsic evidence that might be brought to bear upon its

interpretation. Examining the question before him in this context, the Chambers judge found nothing to suggest that Lot 4 benefitted, or had been intended to benefit, from the Right-of-Way easement registered under Instrument DG490. Without deciding whether Sattva Capital Corp. v Creston Moly Corp. , 2014 SCC 53 , [2014] 2 SCR 633, applies in this context, the Chambers judge’s findings of mixed fact and law reveal no palpable and overriding error and I cannot see how he might have committed such an error. Frankly, I find the Chambers judge correctly interpreted Instrument DG490. As the Jacksons submit, Instrument DG490, and the easement it protects, allows for no

interpretation other than that which the Chambers judge gave to it. In addition, I note that, although the Chambers judge did not reference The Land Titles Act or the principles that underpin our Torrens system of land registration, the statute and those principles support his conclusion that Lot 4 could not be the dominant tenement of the Right-of-Way granted over Lot 3 under the Transfer or Instrument DG490. There is also a ready answer to Ms.

Schroeder’s argument that the easement only makes sense as a grant of access in favour of Lot 4, which is, as I have noted, that at the time the easement was granted, and until at least 1936, Lot 4 had access to the back alley. [ 15 ] In short, I would dismiss the appeal chiefly for the reasons given by the Chambers judge. I would award costs to the Jacksons under Column 1 of the Tariff. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Leurer J.A.” Leurer J.A.