AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:
The Ontario Superior Court of
Justice ruled on a case where the duties surrounding easements and who
has the obligation to maintain an easement were at issue. An easement is a legal right to use another
person’s land for a specified purpose and must have four characteristics to be
effective. There must be a dominant and a servient tenement – the “dominant”
land is benefitted by the “servient” land over which the easement applies; the
easement must “accommodate” the dominant tenement in that it is reasonably
necessary for the enjoyment of that land; the owners of the dominant and
servient tenements must be different persons (you can’t have an easement over
your own land); and a right over land cannot amount to an easement unless it is
capable of forming the subject-matter of a grant (for instance, the right can’t
be vague or uncertain). Case law has established that where an easement is
created by express grant, the nature and extent of the easement should be
determined based on the language of the instrument that created it, taking into
account the circumstances at the time the easement is created.
In the recent court decision, the
“dominant” owner was found to have no positive obligation to repair and
maintain a drain located on the “servient” owner’s land. The servient land was
located adjacent to the Highway 401 corridor.
In 1959, the owner of the servient land, part of a farm, had granted the
Province an easement for the installation of a drainage system. The drain was properly installed but, as the
years went by, the drain deteriorated and caused the farm property to retain
water. The servient owner experienced crop
loss and had to undertake significant repairs to the drain at a cost of roughly
$60,000. The servient owner sued the
Province (and later the Municipality that took over the easement) to recover
his losses. After the Plaintiff passed
away, his estate carried on the action and asked the Court to grant summary
judgment (a decision made by the court without a full trial) against the
Municipality.
After repairing the drainage
system, the Plaintiff had contacted the Province and the Municipality to inform
them of the problems in hopes of having the repair costs covered. The Municipality
informed the Plaintiff that it only had the right to maintain the drain and not
an obligation to do so. Hearing this
news caused the Plaintiff to write a letter to the Mayor of the Municipality
setting out the background behind the drainage easement. The Municipality did not respond to the letter
or take responsibility for the repair costs, which led to the Plaintiff commencing
his action.
The Plaintiff’s claims
included requests for a declaration that the Municipality is liable for the continuing
maintenance of the drain, reimbursement of the costs to repair and replace the
drain, and damages for the loss of
crops. The Court considered several issues in deciding the claim, including the
applicable test for summary judgment, the nature of the easement, whether the Municipality
had a positive obligation to repair the drain, and whether the Municipality was
liable to the Plaintiff for the cost of the drain repair and/or the crop loss and
in what amount(s).
In considering what the nature
of the easement was, the Court determined that both the original easement (originally
granted to the Province) and the transferred easement (as transferred from the
Province to the Municipality) are valid in law.
The Highway 401 corridor was considered to be the dominant tenement and
the Plaintiff’s property was the servient tenement; the original easement and
the transferred easement accommodated the drainage of the highway (reasonably
necessary for the use of the highway); the owners of the dominant and servient
tenements were different persons; and, the right to build and maintain a tile
drain on a strip of the property was a right capable of forming the subject
matter of a grant. Having concluded that
the easements are valid, the Court then addressed the Plaintiff’s claim that the
Municipality had a positive duty to repair and maintain the drain and cover the
costs incurred. The Court ruled against
the Plaintiff based on its interpretation of the easement.
The Court referenced the legal
principles established by the Supreme Court of Canada in a 2014 decision that stated
evidence should be examined by considering the mutual and objective intention
of the parties. When it comes to easements,
the words of the grant must be interpreted in an ordinary and grammatical
meaning that aligns with the circumstances of the parties involved at the time
the easement was created. The Court
found in this case that the original easement was silent with regard to any
obligation to repair. While in some
cases, the party enjoying the use of the easement will be liable for repairs,
that was not the case in this scenario.
Absent express
language in the grant of the easement, the “dominant owner” (the person
benefitting from the easement) does not have an obligation pursuant to the
grant of easement to keep the easement in proper condition. However, that
doesn’t necessarily leave the “servient” owner (whose land is subject to the
easement) without a remedy. Where the dominant owner acts negligently or
commits a nuisance, they can still be held liable for repair costs and
damages. In this case, the Plaintiff’s
estate was permitted to continue with a claim for damages based on the law of
nuisance.
Read the decision at: 2024 ONSC 2811 (CanLII).