|
CITATION: Kaminskas v. Storm, 2009 ONCA 318 |
|
Date: 20090420 |
|
Docket: C46886 |
|
COURT OF APPEAL FOR ONTARIO |
|
Rosenberg, Feldman and Blair JJ.A. |
|
BETWEEN |
|
John Michael Kaminskas |
|
Applicant (Respondent) |
|
and |
|
Larry Storm and Joan Storm |
|
Respondents (Appellants) |
|
Arthur Robert Camporese and Karen Power, for the
appellants |
|
Nicholas F. Ferguson, for the respondent |
|
Heard: November 18, 2008 |
|
On appeal from the judgment of Justice C. Anne Tucker
of the Superior Court of Justice, dated February 23, 2007 and reported
at (2007), 54 R.P.R. (4th) 239. |
|
R.A. Blair J.A.: |
I. BACKGROUND
[1] The
Storms and Mr. Kaminskas are the owners of modest homes adjacent to each
other in the City of Niagara Falls. Their homes are separated by a single
paved driveway, which encroaches 3 feet onto the Storms’ property. There
is no room for a car to drive into the space between the houses. Mr.
Kaminskas uses the portion of the single-car driveway between the entrance
steps to the houses and the front sidewalk to park his car. In doing so,
he says he is following a pattern that has been accepted by previous
owners of these two homes for over 56 years. The Storms – who purchased
their property in 2006, and whose daughter and son-in-law actually reside
in the home – object.
[2] The
seeds for a potential dispute are readily apparent from a glance at the
photo which is attached as Schedule A to these reasons. There is no
dispute that the driveway to Mr. Kaminskas’ home encroaches on the Storm’s
titled property.
[3] To
resolve the dispute, the Storms sought to build a fence down the middle of
the driveway between the buildings and a three to four inch concrete curb
on the dividing line of the open paved area. This did not find favour
with Mr. Kaminskas, who applied to the court for a declaration that he is
entitled to a right-of-way over the driveway and for injunctive relief.
He succeeded. Tucker J. found that he was entitled to a prescriptive
easement over the disputed portion of the land and that he would be
entitled to an injunction preventing the Storms from interfering with his
use of the property. The Storms appeal.
[4] Consent
or permission operates to defeat a claim to a prescriptive right. While
Mr. Kaminskas and his predecessors in title had exclusive and continuing
use of the driveway for parking purposes for over half a century, the
evidence is clear that they used the driveway in that fashion with the
permission (oral or written) of the prior owners of the Storm property.
Respectfully, the application judge erred in failing to calculate the
period of unpermitted user as the period “next before” the commencement of
the application. Moreover, her attempts to characterize the permission
granted as ineffective, or to differentiate it as something else, are not
supportable on the evidence.
[5] I would
allow the appeal.
II. FACTS
[6] Mr.
Kaminskas purchased the property at 5087 Kitchener St. in October, 1991,
from a Mr. Parisi. Mr. Parisi, in turn, had purchased the property in
1980 from his grandfather, who had owned it since 1970.
[7] The
Storms acquired the adjacent property at 5091 Kitchener St. in March 2006
from Ross and Harriet Angiers, who had owned it since 1950.
[8] Mr.
Kaminskas claims, himself, to have had exclusive and continuous use of the
disputed driveway – which encroaches approximately 3 feet onto the Storm’s
side – for 16 years prior to the application. His predecessors in title
enjoyed a similar use as far back as 1950. The existence of the right to
the use is important to him because the City by-law prohibits parking on
the street at that point and there is no other parking available on his
property. The Storm property, on the other hand, has its own driveway on
the opposite side of the building.
[9] The
evidence is that Mr. Parisi used the driveway in the same fashion during
his tenure. Mr. Parisi stated in his affidavit that his grandfather also
used the driveway, to his knowledge and belief, although his grandfather,
himself, did not drive.
[10] Mr. Angiers
swore he and his wife “were always aware of the previous and current
owners of 5087 Kitchener Street, using the single car driveway that
encroached onto [their lands].” In fact, he said that to the best of his
knowledge and recollection the driveway “was already on the property” when
he and Mrs. Angiers bought it in 1950, and “had been in use of the then
owners” at that time. He and Mr. Parisi Sr. (the grandfather) paved the
driveway together. Mr. Angiers swore that he made the person he thought
was the buyer of their property – Mr. Balice, the son-in-law who now
occupies it with the Storm’s daughter – aware of the encroachment and that
they “shook hands agreeing to this encroachment and condition.” He said
that Mr. Kaminskas “has had the exclusive use” of the driveway and that he
and Mrs. Angiers “had always given permission to the previous and present
owners of 5087 Kitchener Street … to the use of this single car driveway
and the said encroachment.”
[11] Although the
encroachment is visually obvious, no declarations of possession were ever
tendered on either the Kaminskas purchase in 1991 or the Storm purchase in
2006.
[12] In 1991,
when Mr. Kaminskas acquired 5087 Kitchener St. from Mr. Parisi, the
Angiers provided Mr. Kaminskas with a letter consenting to his use of the
disputed driveway. This letter said:
To: Janice Parker
& John Kaminskas:
We, Ross &
Harriet Angiers give our consent to Janice and John for full use of the
mutual driveway at 5087 and 5091 Kitchener Street.
Sincerely,
[Signed] Ross S. Angiers
[13] The Storms’
side of the story was put forward partly through the affidavit of Mr.
Balice. He says the problems began when Mr. Kaminskas started to park on
the encroachment part of the driveway, rather than on his own side.
From the perspective of Mr. Balice and the Storms’ daughter, if Mr.
Kaminskas were to park on “his” side, they would allow him to use the
disputed portion of the driveway to get in and out of his car on the
driver’s side. They wish to use the driveway to put out their garbage and
to have access to their back yard. When Mr. Kaminskas parks in the centre
of the driveway, they are unable to do so.
[14] Mr. Balice
says that he did not know of the letter from Mr. Angiers to Mr. Kaminskas,
cited above. As the application judge noted, however, neither he nor Mr.
Storm specifically deny the conversation with Mr. Angiers concerning the
use of the driveway and shaking hands on it. Nor do they specifically
deny knowing about the claimed easement, either from the surveys or from
the visual appearance and use of the property.
[15] The
application was heard and determined on the basis of the affidavit
evidence filed. No one was cross-examined.
III. THE GROUNDS OF APPEAL
[16] The
appellants make two principal submissions.
[17] They argue,
first, that the application judge erred in the manner in which she
calculated the time required for a prescriptive easement claim pursuant to
the Real Property Limitations Act, R.S.O. 1990, c. L.15, ss.
31 and
32. The application judge determined that Mr. Kaminskas had
established an absolute 40-year right that crystallized before the 1991
letter was provided and, therefore, that the letter of permission could
not defeat what was already an absolute prescriptive easement. The
appellants submit, however, that the relevant time period for a
prescriptive easement under the Act is “the period next before some action
wherein the claim … was or is brought into question”, i.e. from the date
of the commencement of the application in these proceedings. The 1991
letter of permission therefore operates to defeat the prescriptive right,
they say.
[18] Secondly,
the appellants submit there were insufficient facts before the court to
enable the application judge to find a prescriptive easement and Mr.
Kaminskas failed to meet his burden of proof in that respect.
[19] I agree with
the appellants’ submission that Mr. Kaminskas’ claim under statute is
defeated by the written consent provided to him by the Angiers in 1991.
Further, the evidence failed to establish that the user was “as of
right”.
IV. LAW & ANALYSIS
The Applicable
Principles
Methods of
Acquisition of Easements by Prescription
[20] In law,
there are three ways in which an easement may be acquired by prescription:
a) prescription at
common law;
b) prescription by
the doctrine of lost modern grant; and
c) prescription by
statute (Real Property Limitations Act).
[21] Prescription
at common law is no longer relevant. It requires use of the disputed
right since “time immemorial.” Time immemorial, for purposes of the
period of legal memory is defined as the year 1189, the beginning of the
reign of King Richard I. Obviously, a prescriptive right at common law is
somewhat difficult to prove in modern times, particularly in Canada. It
has been said that prescription by common law cannot exist here because
there is no legal memory on which to found it: see A.H. Oosterhoff & W.B.
Rayner, 2d ed. Anger and Honsberger: Law of Real Property, vol. 2
(Aurora, Ont.: Canada Law Book Inc., 1985), at p. 936, citing Abell
v. Village of Woodbridge and County of York (1917), 39 O.L.R. 382 (H.C.),
rev’d on other grounds 45 O.L.R. 79 (S.C. App. Div.).
[22] The doctrine
of lost modern grant, on the other hand, “is alive” and – as Cory J.A.
noted, drily, in Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.),
at p. 382 – “if not well is at least surviving in the province of
Ontario.” This doctrine was developed in common law jurisprudence to
overcome the inconvenience of the common law rule (where the right could
be defeated if it could be proven that the right claimed did not exist at
any point in time within legal memory). Under the doctrine of lost modern
grant, the courts will presume that there must have been a grant made
sometime, but that the grant had been lost. Uninterrupted user as of
right at any point in time will create the prescriptive right under this
doctrine, provided it was for at least 20 years.
[23] Cory J.A.
described the doctrine of lost modern grant in Henderson v. Volk,
at pp. 382-383:
The doctrine
indicates that where there has been upwards of 20 years uninterrupted
enjoyment of an easement and such enjoyment has all the necessary
qualities to fulfil the requirements of prescription, then apart from some
aspects such as incapacity that might vitiate its operation but which do
not concern us here, the law will adopt the legal fiction that such a
grant was made despite the absence of any direct evidence that it was in
fact made.
It should be emphasized that the nature of
the enjoyment necessary to establish an easement under the doctrine of
lost modern grant is exactly the same as that required to establish an
easement by prescription under the Limitations Act. Thus, the
claimant must demonstrate a use and enjoyment of the right-of-way under a
claim of right which was continuous, uninterrupted, open and peaceful for
a period of 20 years. However, in the case of the doctrine of lost modern
grant, it does not have to be the 20-year period immediately preceding the
bringing of an action.
As well, the enjoyment must not be
permissive. That is to say, it cannot be a user of the right-of-way
enjoyed from time to time at the will and pleasure of the owner of the
property over which the easement is sought to be established. [Citations
omitted.]
See also Rose v.
Krieser (In Trust)
2002 CanLII 44894 (ON C.A.), (2002), 58 O.R. (3d) 641 (C.A.).
[24] As the years
passed, the doctrine of lost modern grant was found to be more and more
unsatisfactory, because it called upon juries to presume the existence of
a lost grant as a fact, even where they did not believe it existed. The
English Prescription Act 1832, 2 & 3 Will. 4, c. 71, may have been
enacted, at least in part, to overcome this problem.
Its preamble states that it was enacted to prevent common law claims from
being defeated by evidence of the commencement of user after 1189 (the
very rationale for the development of the doctrine of lost modern grant).
Sections 31 and 32 of the Ontario Real Property Limitations Act
echo the language of the 1832 legislation.
[25] The wording
of these sections is tortuous at best.
Stripped to their essentials, for purposes of this appeal, they read as
follows:
Right of way,
easement, etc.
31. No claim
that may be made lawfully at the common law, by … prescription or grant,
to any way or other easement … when the way … has been actually enjoyed by
any person claiming right thereto without interruption for the full period
of twenty years shall be defeated or destroyed by showing only that the
way … was first enjoyed at any time prior to the period of twenty years,
but, nevertheless the claim may be defeated in any other way by which it
is now liable to be defeated, and where the way … has been so enjoyed for
the full period of forty years, the right thereto shall be deemed absolute
and indefeasible, unless it appears that it was enjoyed by some consent or
agreement expressly given or made for that purpose by deed or writing.
How period to
be calculated, and what acts deemed an interruption
32. Each of the respective periods of years
mentioned in [section] 31 shall be deemed and taken to be the period next
before some action wherein the claim … to which such period relates was or
is brought into question, and no act or other matter shall be deemed an
interruption within the meaning of those sections, unless the same has
been submitted to or acquiesced in for one year after the person
interrupted has had notice thereof, and of the person making or
authorizing the same to be made.
[26] Sections 31
and 32 do not displace the right to establish a prescriptive easement
based on the doctrine of lost modern grant, which continues to exist in
this province: Henderson v. Volk, at p. 382; MacRae v. Levy
(2005), 28 R.P.R. (4th) 291 (Ont. S.C.), at para. 59; Graeme Mew, The
Law of Limitations, 2d ed. (Markham, Ont.: LexisNexis Canada Inc.,
2004), at p. 237. Moreover, the nature of the enjoyment necessary to
establish a prescriptive easement under the doctrine of lost modern grant
is precisely the same as that required for a prescriptive easement under
the statute: Henderson v. Volk.
Characteristics of Prescriptive Easements
[27] To establish
a prescriptive easement of either kind, the user must first meet the four
essential characteristics of an easement at common law, namely:
a) there must
be a dominant and servient tenement;
b) an easement
must accommodate the dominant tenement;
c) the dominant
and servient owners must be different persons; and
d) a right must
be capable of forming the subject matter of a grant.
[28] In addition,
for an easement to be created by prescription, the user of the alleged
right (for the applicable time period) must be shown to have been (i)
continuous, and (ii) “as of right”.
[29] Here, there
is no real issue that the proclaimed easement meets the four essential
criteria of an easement at common law, or that the use of the driveway by
Mr. Kaminskas and his predecessors was continuous. The appeal hinges on
whether the user was “as of right”.
[30] User “as of
right” means that the use has been uninterrupted, open, peaceful and
without permission for the relevant period of time. It is often described
using the Latin maxim nec vi, nec clam, nec precario (i.e., without
force, without secrecy, and without “precario”). “Precario” in this sense
is taken to mean “[t]hat which depends not on right, but on the will of
another person”: Burrows v. Lang, [1901] 2 Ch. 502, at p. 510,
cited in Jonathan Gaunt Q.C. & Paul Morgan Q.C., Gale on Easements,
17th ed. (London: Sweet & Maxwell Ltd., 2002), at para. 4-82. Nec
precario, therefore, means “without permission.”
Differences between Prescriptive Easements under Statute and Lost Modern
Grant
[31] There are
three important differences between a prescriptive easement arising by
statute and a prescriptive easement arising by lost modern grant,
however. First, in order to establish a prescriptive right by statute, it
is necessary for the user to have been continuous, uninterrupted, open,
peaceful and without permission for a period of 20 or 40 years immediately
preceding the commencement of the action or assertion of the claim – in
the language of s. 32, during the 20 or 40-year “period next before
some action wherein the claim … to which such period relates was or is
brought into question” (emphasis added). For the right to accrue under
the doctrine of lost modern grant, however, the requisite user need not be
for the period “next before” the action, but may exist during any
uninterrupted 20-year period or longer.
[32] While the
“next before” requirement may give rise to unfairness in some
circumstances, there are policy reasons founded in the need to promote
certainty and stability in conveyancing law that support its existence.
As the authors of a leading text, Robert Megarry & William Wade, The
Law of Real Property, 6th ed. by Charles Harpum (London: Sweet &
Maxwell Ltd., 2000), observe, at p. 1138, footnote 76:
It should be
noted that, for all its shortcomings, prescription under the
Prescription Act 1832 is, from a conveyancing point of view,
preferable to prescription by lost modern grant. Because it has to be
exercised without interruption “next before some suit or action”, it may
be easier for any purchaser of the servient tenement to discover. If an
easement has been acquired by lost modern grant … [a] purchaser may be
bound by it even though he could not have discovered its existence.
[33] In addition,
the “next before” requirement under the legislation confines the courts
review to a relatively recent period of time, when the evidence will be
easier to obtain and evaluate, and therefore may be preferable to the lost
modern grant regime for that reason: see U.K., “Easements, Covenants and
Profits à Prendre”, The Law Commission Consultation Paper No. 186, (2008),
at p. 80, para. 4.213.
[34] Secondly, a
statutory claim to a prescriptive easement based on 40-years’ user can be
defeated by permission only where that permission was given in writing.
This is established by the closing words of s. 31, which, for convenience,
I repeat:
[W]here the way
… has been so enjoyed for the full period of forty years, the right
thereto shall be deemed absolute and indefeasible, unless it appears that
it was enjoyed by some consent or agreement expressly given or made for
that purpose by deed or writing.
[35] Under the
statute, a 40-year right will not be considered permissive (“precario”)
unless it is enjoyed by written permission. However, claims to a
prescriptive right based on the doctrine of lost modern grant (or with
respect to the statutory right based on 20 years’ user) can be defeated by
consent or permission, whether written or oral.
[36] Finally, it
is noteworthy that the 40-year concept is a creature of the statutory
prescriptive right. It has no application to the doctrine of lost modern
grant, which requires only an appropriate user of 20 years or more without
permission.
Application of the
Principles to this Case
[37] In light of
the foregoing review of the principles underlying prescriptive easements,
it is apparent where the dilemma for Mr. Kaminskas arises. His claim
under statute is defeated by the written consent provided to him by the
Angiers in 1991, less than twenty years “next before” the commencement of
his application. It is also defeated by the permission – by inference, an
oral permission – that Mr. Angiers says he and his wife “had always given”
to the owners of the Kaminskas property, whether the claim is based on
statute or on the doctrine of lost modern grant.
The
Application Judge’s Reasons
[38] The
application judge rejected the argument “that ‘consent’ or ‘permission’
somehow operated to remove what [she found] to be an easement since at
least 1950 and, accordingly, [was] now a prescriptive easement.” She went
on to say (at para. 25):
In any event, from 1950 until 2006, Mr.
Angiers makes it clear that the neighbours have used as a right the
driveway that encroaches on his lands. I agree that the words used in
1991 were “permission” and “mutual driveway”, however, as indicated, Mr.
Angiers would not be in a position in 1991 to grant permission to anyone
having acknowledged and accepted the use of the property by the
predecessors in title and the fact that the use pre-dated his occupation
of his property. In this regard, I quote from the case of Rose v.
Krieser
2002 CanLII 44894 (ON C.A.), (2002), 58 O.R. (3d) 641 (Ont. C.A.) in
which the Court of Appeal considers s. 31:
Examined in
context, it is apparent that the closing words of s. 31 relating to the 40
year time period are to be read in contrast with the preceding part of the
section dealing with the 20 year time period. The words “consent or
agreement expressly given or made for that purpose by deed or writing” in
relation to the 40 year time period relate to the common law defence of
permission given by deed or writing, and clarify that the defence of
permission does not apply in full measure to the 40 year period.
Rather, the defence is limited to written permission with
respect to the 40 year period.
Moreover, it is
clear, in my view, that the words “consent or agreement expressly given or
made for that purpose by deed or writing” cannot apply to a use
as of right given by deed or writing. The very foundation of the law
of prescription is the presumption that the use originated with a grant of
the right claimed. Proof of a written agreement granting the right
simply displaces prescription; it does not constitute a defence of the
claim. On the other hand, permission negatives a claimant’s
assertion that his use was “as of right” and constitutes a real defence to
the claim.
Here, I find that the use was a right. The
rights accrued 40 years prior to the 1991 letter without “permission.” I
find it was not a mere acquiescence; it was acceptance and the use of the
term permission does not erase that right. [Emphasis in original.]
[39] These
findings appear to have been based on a prescriptive easement by statute –
the application judge earlier cites the relevant law as being centred in
ss. 31 and 32 of the Real Property Limitations Act, and makes no
reference to the doctrine of lost modern grant – and to have been founded
on the notion that prescriptive title had been acquired before the
letter of 1991 was provided.
[40] This may be
a fair result, if the application judge were exercising a discretionary or
equitable jurisdiction in making her decision. Respectfully, the
foregoing passage from her reasons discloses a number of misconceptions of
the evidence and of the law. I do not see how her conclusion can be born
out on the record, given the law described above and the uncontested
evidence of Mr. Angiers.
Error in
how Time was Calculated under the Act
[41] Insofar as
the application judge purported to find a prescriptive easement by
statute, she failed to apply the “next before” time parameters of s. 32.
I agree with the appellants’ submissions in this regard. Even if Mr.
Angier’s evidence is explained away as acceptance, rather than permission,
throughout the period between 1950 and 1991, the 1991 letter granting Mr.
Kaminskas consent to use the driveway for parking broke any prior
period of open and uninterrupted use without permission. And it did so
within the 20 year period immediately preceding the commencement of the
application, which is sufficient to prevent the right from crystallizing
under the Act.
The User
was Not “As of Right”
[42] Mr. Angiers
evidence does not make it clear, however, – or, indeed, even suggest –
that his neighbours had used the driveway “as a right”. His evidence is
that they used it at all times with his and his wife’s permission. Mr.
Angiers – who would know – was not cross-examined on his affidavit. He
did not say he and his wife “acquiesced” in their neighbours’ use of the
driveway (a state of affairs that would justify the finding of a
prescriptive easement, other factors being equal). His evidence was
unequivocal: “My wife, Harriet Angiers and I had always given
permission to the previous and present owners of 5087 Kitchener Street
… to the use of this single car driveway and the said encroachment”
(emphasis added).
[43] Further, the
application judge’s comment that Mr. Angiers “would not be in a position
in 1991 to grant permission to anyone having acknowledged and accepted the
use of the property by the predecessors in title and the fact that the use
pre-dated his occupation of his property” is based on the same
misconception of the evidence. Mr. Angiers did not say he “acknowledged
and accepted the use of the property”. He said they gave permission for
the use.
[44] The legal
premise that the prescriptive right had already crystallized before the
1991 letter of consent was provided is also mistaken. The application
judge focused on the point that permission can only defeat the 40 year
period if it is evidenced in writing. This is apparent from her quotation
from Rose v. Krieser and from her own statement that “[t]he rights
accrued 40 years prior to the 1991 letter without ‘permission’.”
[45] Her
reasoning appears to have pursued the following logic. Mr. Kaminskas and
his predecessors in title had used the driveway since at least 1950, and
perhaps before that time. There was at least 40 years user before 1991 and
the rights had “accrued” by that time. Mr. Angiers was therefore not in a
position to give “permission” by the date of the letter and the letter
was, in effect, meaningless. Oral consent is not capable of defeating a
40 year prescriptive right. The use before 1991 was therefore without
permission.
[46] This logic
does not get Mr. Kaminskas to where he needs to be, however. The 40
years’ user was founded upon the Angiers’ permission.
Doctrine
of Lost Modern Grant
[47] Finally, the
doctrine of lost modern grant – not alluded to by the application judge,
but raised on appeal – does not assist Mr. Kaminskas either. Although
permission can defeat a 40 year period of user for purposes of a
prescriptive easement by statute only if evidenced in writing, oral
permission is sufficient to defeat a prescriptive easement by lost modern
grant. Here, the evidence is that the Angiers at all times gave
permission to the use of the driveway for parking. It is not said whether
that permission was oral or written, but since the 1991 letter is the only
reference on the record to consent in writing, it is a reasonable
inference that, prior to the letter, the ongoing permission was oral. In
any event, a prescriptive right by lost modern grant cannot be established
if the user was by permission, whether written or oral – it can only arise
where the user is “as of right”.
[48] This result
may seem unfair to Mr. Kaminskas. It is apparent that he and his
predecessors in title have had the continuous, open, uninterrupted,
peaceful and exclusive use of the driveway for purposes of parking over a
period of at least 56 years before the commencement of these proceedings.
Everyone was in agreement, except for the current occupants and owners of
the Storm property. But it is also apparent that this user was with the
permission of the predecessors in title to the Storms. And permission
defeats a prescriptive easement.
V. DISPOSITION
[49] For the
foregoing reasons, I would allow the appeal, set aside the judgment below,
and dismiss the application.
[50] The
appellants are entitled to their costs here and below. Costs of the
appeal are fixed in the amount of $5,000, as agreed by counsel.
“R.A. Blair
J.A.”
“I agree M.
Rosenberg J.A.”
“I agree K.
Feldman J.A.”
RELEASED: April 20, 2009
PDF Format
