Barlow v. Cohen

Barlow v. Cohen

Appellant did not acquire title to a servitude over respondent's land. Article 556 does not authorize a purchaser of part of the dominant estate to use the vendor's retained land to exercise the servitude; the 1902 sale of the non‑contiguous portion without reference to the passage extinguished any prior servitude in favour of that part; and the later existence of a gate did not create a servitude by destination under art. 551. Therefore no servitude exists in favour of 1525 over 1529.

Citation
[1963] SCR 101
Parties
Appellant (plaintiff): Herve Barlow; Respondent (defendant): Harry Cohen
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
28 November 1962
Procedural Posture
Appeal; Action Confessoire (servitude Dispute) / Appeal to the Supreme Court of Canada From the Court of Queen's Bench, Appeal Side, Province of Quebec
Outcome
Appeal dismissed with costs
Legal Topics
Servitude, Right of Way, Servitude by Destination, Extinguishment of Servitude, Interpretation of Civil Code Arts. 549, 551, 556
Source Language
English
Property Law Civil Law Servitude Right of Way Servitude by Destination Extinguishment of Servitude Interpretation of Civil Code Arts. 549, 551, 556

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Parties

Herve Barlow

Appellant (plaintiff)

Harry Cohen

Respondent (defendant)

Procedural Posture

Appeal; Action Confessoire (servitude Dispute) / Appeal to the Supreme Court of Canada From the Court of Queen's Bench, Appeal Side, Province of Quebec

Legal Issues

  1. 1 Whether a servitude of passage over 1529 exists in favour of 1525
  2. 2 Whether sale of a portion of the dominant land non-contiguous to the servitude extinguished any prior servitude
  3. 3 Whether a servitude by destination was created by the historical existence of a gate

Ratio Decidendi

Appellant did not acquire title to a servitude over respondent's land. Article 556 does not authorize a purchaser of part of the dominant estate to use the vendor's retained land to exercise the servitude; the 1902 sale of the non‑contiguous portion without reference to the passage extinguished any prior servitude in favour of that part; and the later existence of a gate did not create a servitude by destination under art. 551. Therefore no servitude exists in favour of 1525 over 1529.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs.