Romkey v. Osborne

Romkey v. Osborne

Summary judgment was dismissed because the 1960 deed language is ambiguous as to the nature and extent of the easement (specifically whether the 12-foot strip permits a road and vehicular/commercial use and how it relates to the 20-foot pedestrian footpath), and there are genuine issues of mixed fact and law that must be resolved at trial; therefore Rule 13.04 criteria for summary disposition were not met.

Citation
2017 NSSC 290
Parties
Plaintiff as Respondent: Paul Romkey; Plaintiff as Respondent: Christine Romkey; Defendant as Applicant: Robert Osborne
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
9 November 2017
Procedural Posture
Civil Land Dispute (easement/trespass) / Motion for Summary Judgment Under Rule 13.04
Outcome
Motion for summary judgment dismissed
Legal Topics
Right of Way, Easement Interpretation, Summary Judgment, Tree Cutting/damages, Interim Injunctions
Source Language
English
Property Law Civil Procedure Easements Trespass Injunctions Right of Way Easement Interpretation Summary Judgment +2 more

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Parties

Paul Romkey

Plaintiff as Respondent

Christine Romkey

Plaintiff as Respondent

Robert Osborne

Defendant as Applicant

Procedural Posture

Civil Land Dispute (easement/trespass) / Motion for Summary Judgment Under Rule 13.04

Legal Issues

  1. 1 Whether summary judgment under Rule 13.04 is appropriate
  2. 2 Whether the 1960 deed granted a right to install a road to the shoreline
  3. 3 Whether the 12-foot right of way is adjacent to or encompassed within a 20-foot footpath right of way

Ratio Decidendi

Summary judgment was dismissed because the 1960 deed language is ambiguous as to the nature and extent of the easement (specifically whether the 12-foot strip permits a road and vehicular/commercial use and how it relates to the 20-foot pedestrian footpath), and there are genuine issues of mixed fact and law that must be resolved at trial; therefore Rule 13.04 criteria for summary disposition were not met.

Court Disposition

Motion for summary judgment dismissed

Orders

  • Summary judgment motion dismissed.
  • Costs awarded to the Romkeys.