Mitrovic v. Ostojic

Mitrovic v. Ostojic

Respondents established a prescriptive easement by virtue of uninterrupted, open and undisturbed use from 1982 until obstruction in 2006; the 1984 agreement had been breached and was not operative at the time of sale; no quitclaim was required given the passage of time; the indemnity retained from sale proceeds did not deprive respondents of costs awarded, and the appeal was dismissed except to the extent required to vary relief to conform with the court's orders.

Citation
2008 ONCA 144
Parties
Applicant/respondent: Ethel Mitrovic; Applicant/respondent: Violet Jane Van Duynhoven; Respondent/appellant: Walter Ostojic
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
29 February 2008
Procedural Posture
Civil / Appeal to Court of Appeal for Ontario From Order of Superior Court of Justice Dated June 4, 2007
Outcome
Appeal dismissed except to the extent necessary to vary the relief granted to comply with this court's order
Legal Topics
Prescriptive Easement, Quitclaim, Consent to Use, Costs Indemnity, Breach of Agreement
Source Language
English
Property Law Easements Civil Procedure Prescriptive Easement Quitclaim Consent to Use Costs Indemnity Breach of Agreement

Case Brief

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Parties

Ethel Mitrovic

Applicant/respondent

Violet Jane Van Duynhoven

Applicant/respondent

Walter Ostojic

Respondent/appellant

Procedural Posture

Civil / Appeal to Court of Appeal for Ontario From Order of Superior Court of Justice Dated June 4, 2007

Legal Issues

  1. 1 Whether respondents established a prescriptive right of way based on long use
  2. 2 Whether a quitclaim was required from the respondents to the appellant
  3. 3 Whether the 1984 agreement was operative at time of sale

Ratio Decidendi

Respondents established a prescriptive easement by virtue of uninterrupted, open and undisturbed use from 1982 until obstruction in 2006; the 1984 agreement had been breached and was not operative at the time of sale; no quitclaim was required given the passage of time; the indemnity retained from sale proceeds did not deprive respondents of costs awarded, and the appeal was dismissed except to the extent required to vary relief to conform with the court's orders.

Court Disposition

Appeal dismissed except to the extent necessary to vary the relief granted to comply with this court's order

Orders

  • Respondents declared entitled to the easement and granted the orders requested in paras. 1(f) and 1(g) of their Notice of Application
  • Quitclaim from respondents to appellant is not required