Macdonald v. Ferdais

Macdonald v. Ferdais

The deed reserved a right of way that, on the evidence, manifested an apparent servitude by open and continuous use visible on the ground; because the servitude was apparent registration was not required and the servitude is enforceable against the current owner of lot 369 in favor of lot 370. The substantive finding of an apparent servitude and the sufficiency of evidence outweighed procedural irregularities, and the appeal was dismissed.

Citation
(1893) 22 SCR 260
Parties
Intervenant/appellant: Lawrence G. Macdonald; Defendant/appellant: William Cully; Plaintiff/respondent: Francois alias Francis Ferdais
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 May 1893
Procedural Posture
Action Confessoire (servitude/right of Way) / On Appeal to the Supreme Court of Canada (final Judgment)
Outcome
Appeal dismissed with costs; judgment of the Court of Queen's Bench and Superior Court affirmed.
Legal Topics
Servitude, Right of Way, Registration of Servitudes, Apparent Vs Non Apparent Servitude, Procedure on Intervention/warranty
Source Language
English
Property Law Servitude Right of Way Registration of Servitudes Apparent Vs Non Apparent Servitude Procedure on Intervention/warranty

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Parties

Lawrence G. Macdonald

Intervenant/appellant

William Cully

Defendant/appellant

Francois alias Francis Ferdais

Plaintiff/respondent

Procedural Posture

Action Confessoire (servitude/right of Way) / On Appeal to the Supreme Court of Canada (final Judgment)

Legal Issues

  1. 1 Whether the deed of April 2, 1860 created a real servitude benefiting lot 370 or merely a personal right to the vendor
  2. 2 Whether the servitude was apparent such that registration was not required under 44 & 45 Vict. c.16 ss.5-6 and Art.1508 C.C.
  3. 3 Whether evidence of an open road was sufficient to establish an apparent servitude

Ratio Decidendi

The deed reserved a right of way that, on the evidence, manifested an apparent servitude by open and continuous use visible on the ground; because the servitude was apparent registration was not required and the servitude is enforceable against the current owner of lot 369 in favor of lot 370. The substantive finding of an apparent servitude and the sufficiency of evidence outweighed procedural irregularities, and the appeal was dismissed.

Court Disposition

Appeal dismissed with costs; judgment of the Court of Queen's Bench and Superior Court affirmed.

Orders

  • Lot no. 369 declared subject to a servitude/right of way in favour of lot no. 370
  • Appellants jointly and severally condemned to pay twenty-five dollars damages to the respondent