Canada Cement Co. v. Fitzgerald

Canada Cement Co. v. Fitzgerald

Majority held the reservation of a right of passage for cattle to water included protection of the existing means of access to water at Dry Lake; cutting away the bank without providing a suitable alternative unlawfully interfered with and impaired the easement, so the plaintiff's easement was enforceable and the defendant must provide a suitable way or pay damages.

Citation
(1916) 53 SCR 263
Parties
Defendant/appellant: Canada Cement Company; Plaintiff/respondent: John Joseph Fitzgerald
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 May 1916
Procedural Posture
Civil Appeal (property/easement) / On Appeal to the Supreme Court of Canada From the Appellate Division of the Supreme Court of Ontario
Outcome
Appeal dismissed with costs
Legal Topics
Easement, Right of Way, Conveyance Interpretation, Reserved Rights, Changed Conditions, Damages
Source Language
English
Property Law Easement Right of Way Conveyance Interpretation Reserved Rights Changed Conditions Damages

Case Brief

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Parties

Canada Cement Company

Defendant/appellant

John Joseph Fitzgerald

Plaintiff/respondent

Procedural Posture

Civil Appeal (property/easement) / On Appeal to the Supreme Court of Canada From the Appellate Division of the Supreme Court of Ontario

Legal Issues

  1. 1 Whether a reservation 'the right to pass over for cattle ... for water going to and from Dry Lake' includes a right to the existing watering place and its bank
  2. 2 Whether the grantees' failure to execute the conveyance defeats or voids the reserved right
  3. 3 Whether excavation (mining/marl digging) that removes the bank and renders former access unsafe unlawfully extinguishes or impairs the easement

Ratio Decidendi

Majority held the reservation of a right of passage for cattle to water included protection of the existing means of access to water at Dry Lake; cutting away the bank without providing a suitable alternative unlawfully interfered with and impaired the easement, so the plaintiff's easement was enforceable and the defendant must provide a suitable way or pay damages.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs
  • Declaration that plaintiff is entitled to a right of passage for cattle to and from Dry Lake for watering