Luloff & Luloff v. Kaiser & Nauman

Luloff & Luloff v. Kaiser & Nauman

The court allowed the appeal in part: it confirmed the respondents' entitlement to a prescriptive easement but held the easement must be confined to the width of the land actually used; the 66 foot declaration exceeded the use shown in evidence, so the judgment was varied to require a survey of the existing roadway...

Source-derived case information.

Citation
C36580
Parties
Plaintiff/respondent: Delbert Luloff; Plaintiff/respondent: Ruby Luloff; Defendant/appellant: George Kaiser; Defendant/appellant: Elizabeth Nauman
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
18 June 2002
Procedural Posture
Civil / Appeal
Outcome
Appeal allowed in part; paragraph 1 of the trial judgment varied and matter remitted for survey and confirmation by trial judge.
Legal Topics
Prescriptive Easement, Right of Way, Survey, Costs
Source Language
english
Property Law Easements Real Property Civil Procedure Prescriptive Easement Right of Way Survey Costs

Source-derived case record

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Parties

Delbert Luloff

Plaintiff/respondent

Ruby Luloff

Plaintiff/respondent

George Kaiser

Defendant/appellant

Elizabeth Nauman

Defendant/appellant

Procedural Posture

Civil / Appeal

Legal Issues

  1. 1 Whether respondents had acquired a prescriptive easement
  2. 2 Whether the trial judge erred in declaring an easement width greater than the width actually used
  3. 3 Whether the declaration should be confined to land actually used during the prescriptive period

Ratio Decidendi

The court allowed the appeal in part: it confirmed the respondents' entitlement to a prescriptive easement but held the easement must be confined to the width of the land actually used; the 66 foot declaration exceeded the use shown in evidence, so the judgment was varied to require a survey of the existing roadway (at plaintiffs' expense) and confirmation by the trial judge to define the boundaries.

Court Disposition

Appeal allowed in part; paragraph 1 of the trial judgment varied and matter remitted for survey and confirmation by trial judge.

Orders

  • There shall issue a declaration that the plaintiffs are entitled to a prescriptive easement in the nature of a right-of-way in perpetuity for persons and vehicles over part of Lot 24, Concession 5 in the Township of Brudenell in the County of Renfrew for purposes of ingress and egress to and from Lot 23. The...
  • No interference with the trial judge's costs award.