Grant v. Lowres

2016 BCSC 1654 Grant v. Lowres

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Grant v. Lowres, 2016 BCSC 1654 Date: 20160907 Docket: 143795 Registry: Victoria Between: Robert Bradley Grant and Maureen Anne Grant Plaintiffs And Doreen Susan Lowres and The Owners, Strata Plan No. VIS3901 Defendants Before: The Honourable Mr. Justice Jenkins Reasons for Judgment on Summary Trial Counsel for the Plaintiffs: K.R. Doerksen J. Lee Counsel for the Defendants: L.R. LeBlanc E. Skey Place and Date of Hearing: Victoria, B.C. May 11, 2016 Place and Date of Judgment: Victoria, B.C. September 7, 2016 [1] The plaintiffs claim to be entitled to an easement by express grant over lands owned by the defendant Strata Corporation which land is in part adjacent to two lots owned by the plaintiffs and located on Cumberland Road in Victoria. The defendants do not dispute the plaintiffs hold a valid easement, however, they submit that the proper interpretation of the terms of the easement and the circumstances of these parties lead to the conclusion the plaintiffs seek "excessive use" of the easement beyond its intended purpose. More particularly, the defendants submit that use of the easement for vehicular traffic and use by non-owners, who in this case would be users of the garage on Lot 5 or the dominant tenement, are not permitted under the terms of the easement. [2] The application before the court is for a summary trial

under R. 9-7 of the Supreme Court Civil Rules. No exception has been taken by the defendants to the appropriateness of a summary trial in this case and I agree I am able on the evidence before me to find the necessary facts and fairly adjudicate the issue. [3] An explanation of this dispute will necessarily involve reference to a plan of the area in question which I have attached as Schedule "A" to these reasons for judgment and I will refer to the same on occasion in these reasons. Many photographs of the area have also been included in the evidence which have been of great assistance to me in understanding the details of this unfortunate dispute. Factual Background [4] The easement in question is registered against a portion of the common property of Strata Plan VIS3901 and the easternmost 12 feet of Strata Lot 1. The defendant Ms. Lowres is the owner of Strata Lot 1 in Strata Plan VIS3901. A lengthy portion of the westerly side of the easement immediately abuts Strata Lot 1 such that if the defendant Ms. Lowres is to step out of her ground floor door, she would be on the easement. On the attached Schedule "A" the location of Ms. Lowres' residence is noted on Strata Lot 1 as the "dwelling". The entire length of the easement is the hash marked area running generally north and south from Reynolds Road in the north to Lot 1 towards the south. [5] The plaintiffs own properties

known as 3938 and 3940 Cumberland Road which are legally described as Lots 4 and 5 of Plan 4916 on Schedule "A". They have owned and resided in the residence on Lot 5, i.e. 3938 Cumberland Road, since 2003. The Grants purchased Lot 4 of Plan 4916, i.e. 3940 Cumberland Road, in 2009. Mrs. Grant's mother resided in the basement suite and a tenant resided upstairs in the house located on Lot 4. [6] The land over which Strata Plan VIS3918 is registered is commonly known as "Gait Lane" and was built in 1995. The defendant, Ms. Lowres, purchased Strata Lot 1 of Gait Lane in April of 2011. There are four strata lots in Gait Lane, however, only Strata Lot 1 is immediately adjacent to the easement. The defendant Owners are the registered owners of the common property of Gait Lane indicated as "Common Property" in Schedule "A" which is primarily a paved access road and parking area for the residents of Gait Lane. [7] The easement came into existence in 1940 when a prior owner of the Gait Lane lands granted a right of way over a strip of land twelve feet wide over the eastern edge of what is now the Common Property and Strata Lot 1 of Gait Lane. The easement was registered in the Victoria Land Title Office. The grantor of the easement was a Mr. Cambrey and the grantees were Mr. and Mrs. Schram who at that time owned property which now includes Lots 4 and 5, i.e. the lands owned by the

plaintiffs and also other adjacent lands. The easement includes the following operative words on page 2: NOW THIS INDENTURE WITNESSETH that in consideration of the premises and in consideration of the sum of One Dollar ($1.00) of lawful money of Canada now paid by the Grantees to the Grantor . . . . . he, the Grantor, DOTH HEREBY GRANT, CONVEY AND ASSURE unto the Grantees as joint tenants and to the successive owners of the said Easterly 190 feet of Lot 21, of Section 32, Victoria District, Map 721 . . . . . and their respective heirs and assigns in common with the right of all other persons who now have or may hereafter have the right to use the said right of way, as appertaining to their respective land and premises as before mentioned and described ALL AND SINGULAR a right of way over a strip of land twelve (12) feet in width adjoining or adjacent to the Westerly boundary of the said Easterly 190 feet of Lot 21 . . . . . TO HOLD the said right of way and the easement thereby created UNTO the Grantees as joint tenants and the successive owners, forever as appurtenant to the Grantee's lands and the successive owners of same in common with all other persons who have or may hereafter have a legal right to use the same. SO that the right and title to the said right of way and the full and complete and uninterrupted use thereof shall run with the above described lands and with the

title thereto forever. [Emphasis added.] [8] As registered owners of Lots 4 and 5, the plaintiffs are successors in title of the easement. [9] An affidavit was filed in this matter by Suzanne Flannigan, who with her husband, owned Lot 5 from 1991 to 2003 when they sold Lot 5 to the plaintiffs. Ms. Flannigan deposed regarding the prior use of the easement by her and her family. Her affidavit included the following statements: 2. We were the third owners of 3938 Cumberland Road. As part of our investigations prior to the purchase of 3938 Cumberland Road, we became aware that as owners of 3938 Cumberland Road we would enjoy an easement ("the "Easement") over the property to the rear of 3938 Cumberland Road. This was important to us because there was a garage located at the back of the property, the only access to which would be over the Easement area. [10] The garage mentioned was built on Lot 5 by a previous owner in 1983 with access facing the easement. That garage remains in place today. [11] Ms. Flannigan also deposed of constant use of the easement during the time she and her husband owned Lot 5, both by Ms. Flannigan and by tenants. On occasion, they rented out the garage to someone who owned a tire business and used the garage to store tires which involved regular vehicular access over the easement. She also deposed that their children regularly used to traverse the easement on their bicycles. [12] The affidavit of Robert Bradley Grant of July 3, 2015, describes activity in and around the easement after they purchased Lot 5 in 2003: 15. As can be seen from Exhibit "H", the dwelling on Strata Lot 1 was built precisely to the westernmost edge of the Easement area, leaving no land on Strata Lot 1 to the east of the dwelling not encumbered by the Easement.

16. When we first purchased 3938 Cumberland Road, there was already a tenant in place for the garage located at the back of the lot, Kenton Dryburgh ("Kenton"). Kenton paid monthly rent in the amount of $250.00 for the use of the garage at that time. Kenton drove up and down the Easement area daily, and used the garage for shop and storage. When using the garage, he parked his vehicle outside the garage, on our property.

17. From the time the Plaintiffs purchased 3938 Cumberland Road in 2003 we used the Easement on a regular basis. Our children took that route to and from school for the first five years we were here and walked up the lane daily with their friends on their way to school, at lunch time, after school, and in the evenings as well as riding their bikes over the Easement area. We frequently took our vehicle or a rented truck through the Easement area to haul away brush from our property and had no issues with the owner of Strata Lot 1 at that time. In fact, we had an amicable relationship. Frequently I would do work on the Easement area to maintain it, keeping the weeds down, trimming back the bushes and so forth.

18. For the first five or so years after the Plaintiffs owned 3938 Cumberland Road, there were absolutely no issues regarding our use of the Easement area. On a recurring but infrequent basis, tenants of the then owner of Strata Lot 1 would park in the Easement area, at the southern end of the Easement area adjacent to the house on Strata Lot 1. Because this did not impede our access to 3938 Cumberland Road, or Kenton's access to the garage, we chose not to make an issue of it. Because in these years parking was generally unregulated at the Gait Lane development, and some of the strata lot owners had tenants, there were a lot of cars parking on the Common Property. From time to time tenants would park in the Easement area blocking Kenton's access, but Kenton was able to deal with the problem in a diplomatic way and all parties were reasonable. During this period I never had occasion to speak with the owner of Strata Lot 1 as a result of serious interference with our use of the Easement area.

19. In 2008 I was contacted by a woman whose name I do not recall, but who I understood to be the President of the strata council at the time. She advised me that the strata wanted to create two parking spots on the Easement area adjacent to the strata mail boxes (shown in Exhibit "I"). We agreed that the strata corporation could use the space immediately adjacent to the mail boxes for parking, but would not use the next space over (to the south) so that our access to the Easement area was not impeded. For this to work, it was necessary that we be permitted to access the southern half of the Easement area by driving over a portion of the Common Property where the Easement area jogs. In effect, we allowed the strata corporation to use part of the Easement area as a parking stall provided that they allowed us to traverse the Common Property in the area of the "jog" in the Easement. This was a workable and reasonable arrangement. Someone from the strata corporation put up a "no parking" sign where it was agreed parking would not be permitted. I repaired it once or twice but it eventually deteriorated to the point that it was unusable and fell over and was forgotten.

20. On August 6, 2009 the Plaintiffs purchased 3940 Cumberland Road. This lot also backs on to the Easement. The house became Maureen's mother's home. She lived in the basement suite and we had tenants residing upstairs.

21. In the spring of 2011 I noticed a group touring Strata Lot 1. It transpired that the group included the Defendant Lowres and her realtor. I introduced myself to the Defendant Lowres and brought the Easement to her attention. It was clear to me from her comments that she already knew about the Easement. I explained to her that my garage was rented and that the tenant came and went regularly throughout the week. Neither the Defendant Lowres, nor the others she was with, expressed any concern about this.

22. The Defendant Lowres purchased Strata Lot 1 on April 28, 2011.

23. On several occasions I moved their gardening supplies out of the way and I asked her to refrain from leaving planting pots, bricks, garbage cans etc. in the Easement area.

24. I did regular maintenance on the Easement area and at one point hired a teenager to help me remove weeds and cut back the bushes. I put considerable personal effort into making the Easement area look presentable and did much more than I considered was necessary for simply access purposes.

26. In the fall of 2011 the Defendant Lowres enclosed a small area of the Easement outside of the basement suite in which she planted grass. She told me that it was so that her downstairs tenant could have a little garden area of her own for her dogs. I told her that this would be okay, so long as it wasn't permanent and left enough room for vehicles to manoeuvre in and out of our garage. My agreement with the Defendant Lowres caused some friction between I and Maureen and Kenton wasn't happy either, but I wanted to be a good neighbour.

27. In December of 2011 Kenton stopped renting the garage after approximately ten years of regular, more or less daily coming and going along the Easement to the garage.

28. In February of 2012 I listed the garage for rent on Craigslist. I turned down a number of requests to use it as a shop space because I did not want to rent to a tenant who might create noise and/or shop odours which would impact upon the Defendant Lowres. In April of 2012 we rented the garage to Dennis Lavallee for a monthly rent of $350.00. Attached to my Affidavit as Exhibit "J" is a true copy of the rental agreement we signed at that time.

29. Sometime in the spring of 2012 the Defendant Lowres expanded the enclosure I had previously agreed to over the Easement area by adding landscaping ties that were fastened to the ground with rebar, making the structure more permanent. She also added an iron arbour and patio furniture. At a later point (I do not recall exactly when) the enclosure was enlarged further and the arch of her fence crossed our property line. This was subsequently reduced in size when the controversy between us began in earnest in 2013. . . . . . .

31. The defendant Lowres had placed a large flower pot at the corner of the driveway located on the Common Property, which impeded access to the Easement area. I spoke to the Defendant Lowres on or about April 20, 2013 asking her to please move the flower pot. She stated that she would not relent and did not want anyone using the Easement. Attached to my Affidavit as Exhibit "L" is a photograph I took in April of 2013 looking northwards along the Easement area showing where the flower pot had been placed at the edge of the driveway, and showing the Defendant Lowres' vehicle parked on the Easement area blocking access.

32. Also commencing at about this time (April/May of 2013) the Defendant Lowres began parking her vehicle beyond the edge of the Common Property area, so that her vehicles often "over hung" over the Easement area. Attached to my Affidavit and marked as Exhibit "M" is a photograph I took in May of 2013 demonstrating this. . . . . .

35. Attached to my Affidavit and marked collectively as Exhibit "P" are a series of six photographs that I took in June of 2013 showing the manner in which the Defendant Lowres was parking her vehicle so as to impede access to the Easement area, and showing the extent to which she had enclosed a portion of the Easement area inside lattice work erected by her. . . . . .

37. Attached to my Affidavit and marked as Exhibit "R" is a true copy of a letter sent by our counsel, Kelly Doerksen, to the Defendant Lowres on December 13, 2013.

38. Attached to my Affidavit and marked as Exhibit "S" is a true copy of a letter sent by our counsel, Kelly Doerksen, to the Defendant Owners on December 13, 2013. [Each of the letters marked Exhibits "R" and "S" included a demand that both defendants remove all items placed and built on the easement or Right of Way] 39. Attached to my Affidavit and marked as Exhibit "T" is a copy of the email notification I received from Dennis. [This email was notice that the tenant wished not to deal with Ms. Lowres and sought a rent reduction due to inconvenience of dealing with Ms. Lowres which was eventually agreed upon.] . . . . .

43. In August 2014 we returned from holidays to discover that the Defendant Lowres had continued to build over the Easement area. There was now a much larger and higher fence. Sections of the driveway over the Easement area had been dug up and plants and top soil put in. Attached to my Affidavit and collectively marked as Exhibit "W" are a series of nine photographs showing the extent of the changes to the Easement area as of September 2014. . . . . .

45. In April, 2015 the Defendant Lowres further expanded the area of the Easement she had enclosed by lattice fence. Attached to my Affidavit and marked collectively as Exhibit "X" are a series of seven photographs taken by me from April 27-29, 2015 showing the extent of the current interference with our access over the Easement area. The Defendant Lowres has completely blocked off any access to the garage by vehicle, leaving a small area between two fir trees where a pedestrian might access the garage over the Easement area. [13] The plaintiff Maureen Grant made an affidavit dated May 2, 2016, in which she deposed, inter alia: 3. In response to paragraphs 19 and 31 of the Lowres affidavit, the plantings and mailbox located on the common property of the strata corporation, and in the easement area, as shown in Exhibit "I" to the Affidavit #1 sworn by Robert Bradley Grant do affect our use of the easement. They were not an issue when we were permitted to drive over a small portion of the common area at the "jog" in the easement, but since that permission was revoked they do impede our ability to fully utilize the easement area for vehicle traffic.

4. In particular, we would be able to negotiate the "jog" in the easement with little difficulty, were it not for the presence of the plantings, mailbox, etc. shown in Exhibit "I" to the Affidavit #1 of Robert Bradley Grant. [14] Dennis Lavallee, who is mentioned in Mr. Grant's first affidavit as the renter of the garage located at the rear of 3938 Cumberland Road, i.e. Lot 5, from the plaintiffs for the period April 2012 to January 2015, filed an affidavit sworn April 29, 2016, in which he deposed: 3. I rented the garage for a variety of purposes. I had an older car that I stored there under cover, and the garage was perfect for that use. In addition, I distributed newspapers and commercial flyers and stored materials in that connection in the garage.

4. Attached to my affidavit as Exhibit "B" is an email string exchanged between me and Robert Grant between April 18 and 21, 2013 . . . When the Defendant Lowres first started placing flower pots at what she believed to be the edge of her property, this created difficulties for me as I was used to backing my vehicle down the easement area to the garage to load and unload boxes. Even with the flower pots placed at the edge of the Lowres property line, I could have negotiated the jog in the easement were it not for the presence of the mailboxes, hose reels, etc. along the fence. In any event, I did not want to create disturbance and agreed with Robert Grant to make the situation work with the presence of the new flower pots on one edge of the easement area and the mailbox etc. on the other side of the easement.

5. In May of 2013 I had another discussion with the Defendant Lowres. I believed that we had worked out an accommodation whereby she gave her telephone number and asked that I call her if I wanted to use by vehicle to access the garage. . . . . .

6. The "accommodation" did not last long. . . . On that occasion [a confrontation with Ms. Lowres of June 28, 2013] the easement area was blocked to vehicle traffic by the Defendant Lowres and I had no means of unloading boxes of materials from my truck to the garage except to park my vehicle and carry each box by hand from the vehicle to the garage. . . . . . Mr. Lavallee eventually terminated his lease for the garage and deposed in para. 9 "I would not have terminated the rental agreement when I did, if it were not for the interference with my access to the garage by the Defendant Lowres." [15] Regarding the easement and in response to the use the plaintiffs have put it to, Ms. Lowres deposes in her brief affidavit made February 15, 2016, that: 19. The dimensions of the easement do not reasonably permit a vehicle to transverse within the Easement area without trespassing on the common property of the Strata [Corporation] and/or Strata Lot 1. She attempts to illustrate, through sketches with various measurements, that neither a 2015 Ford F150 pickup truck nor a specific 1940 Oldsmobile pickup truck could transverse in the easement without travelling in part over the "jog" in the easement, but acknowledges a smaller vehicle could travel the easement without travelling over property consisting of Strata Lot 1 or the common property of Gait Lane. [16] Ms. Lowres then corroborates

these estimates, further deposing: 30. I have witnessed guests of the respondents accessing the garage by vehicle and by foot. The vehicles are unable to drive on the easement without trespassing onto the common property and/or Strata Lot 1. They are unable to transverse the 90 degree angles of the easement area and trespass onto my property and the Strata common property. At times, the Respondents' guests have parked their vehicles on the Easement area, on the common property and on my property. Further, guests of the Respondents send cabs to my property that part outside of the Easement area. [17] In specific response to the affidavit of Mr. Grant, she denies any agreement on the part of the strata corporation as alleged by Mr. Grant in para. 19 of his affidavit quoted above when Mr. Grant agreed the strata corporation could use "space immediately adjacent to the mail boxes for parking . . . . .". In further response, in a second para. 31, she deposes: 31. . . . . . I have not provided any consent to the plaintiffs or their tenants to use a portion of Strata Lot 1, and I was not advised of such an arrangement by the seller or the strata corporation, if one existed. [18] Also, Ms. Lowres deposed, and it is not disputed, that there was vehicle access to both 3938 and 3940 Cumberland Road from the front of those addresses, i.e. off of Cumberland Road and, in para. 24 of her

affidavit stated: 24. On July 6, 1983 as well after the registration of Easement 95306, a Building Permit was issued for a garage to be constructed on Lot 5 by the then owner, W. Sutter. The Building Permit was appended to Ms. Lowres's affidavit, presumably to indicate the garage was built in compliance with local by-laws. It is also readily apparent that the garage was built with the garage door facing the easement. [19] Based upon all of the affidavit material including email exchanges between the parties it is apparent that Ms. Lowres has, since purchasing Strata Lot 1 in 2011, aggressively and repeatedly attempted to restrict use of the easement by the plaintiffs and their tenants by erecting structures and placing plants and trees on and around the easement. [20] The defendants have filed a further affidavit of Jean Irene Lymbery. Ms. Lymbery and her husband purchased property at 3934 Cumberland Road in 1952 and moved into that address. 3934 Cumberland Road is Lot 1 of Plan 8744 which is located at the very southern end of the easement as depicted on Schedule "A" to these reasons. In her affidavit, Ms. Lymbery deposes as to how pedestrians would traverse over her property and continue on down the easement to access Reynolds Road to the north. [21] Ms. Lymbery also deposed at para. 8 of her affidavit that between 1952 and 1993 she did not see any: . . . . . vehicle usage

over the Pathway other than usage by the owners of 1187 Reynolds Road (the parent parcel of what is now the Gait Lane strata) of their driveway which in part encompassed the Pathway. The Pathway was not used by either 3938 Cumberland Road or 3940 Cumberland Road for vehicle traffic in this time period (1952-1993). [22] Ms. Lymbery also deposed as to her understanding of the use intended for the easement or "Pathway" which evidence is inadmissible hearsay. [23] Finally, from my observation of the plan, i.e. Schedule "A" and the aerial photograph of the neighbourhood it would be very unlikely that if vehicles were using the easement she would be able to see such vehicles from her home. I conclude by finding the evidence contained in Ms. Lymbery's affidavit is not helpful to the court. [24] An affidavit made February 16, 2016, by Joe Milkowski, who was president of the strata corporation between 2000 and 2013, also denied any agreement regarding parking spots on the easement or granting permission to access the easement by vehicle. Analysis and Discussion Interpretation of the Easement [25] In Avanti Mining Inc. v. Kitsault Resort Ltd. 2010 BCSC 1181, Mr. Justice Joyce states: 61. From the foregoing review of the authorities, I would distil the following principles that I think should govern my interpretation of the meaning and scope of the Right of Way: . . . . . .

2. The following principles that apply to the construction of a contract also apply to the interpretation of the Right of Way: (a) the intention of the parties is to be determined by looking first to the plain and ordinary meaning of the words used, in the context of the whole of a contract and in a manner that does not render one part of the contract ineffective. (b) The words must be read in the context of the surrounding circumstances when the contract was made, including facts known to both parties but not negotiations or evidence of subjective intent. (c) The standard is an objective one. (d) If the words of the instrument are unambiguous that is the end of the matter. If there is ambiguity or if the plain language leads to an absurdity, a result that both parties could not have intended, then regard may be had to extrinsic evidence to assist in determining the parties' intent. (e) Evidence of context or surrounding circumstances must not be allowed to overwhelm the plain language of the document. 0746727 B.C. Ltd. v. Cushman & Wakefield LePage Inc; Water Street Pictures Ltd. v. Forefront Releasing Inc.

3. Thus, with regard to an easement in particular, the wording of the instrument creating the Right of Way should govern its interpretation unless (a) there is an ambiguity in the wording or (b) the surrounding circumstances demonstrate that both parties could not have intended a particular use of the easement that is apparently authorized by the wording of the document. Granfield 4. The use to which the easement is intended to be put at the time of the grant is not a surrounding circumstance which shows a common intention of the parties that the easement was not to be put to any other use. . . . . . [26] The defendants relied predominantly on the portion of Granfield v. Cowichan Valley (Regional District) (1996), 16 B.C.L.R. (3d) 382, 71 B.C.A.C. 81, quoted above, arguing that the surrounding circumstances , including the historical evidence lead to a conclusion that vehicle traffic could not have been an intended use of the easement. [27] The first question, however, is whether there is ambiguity in the wording of the easement in the case at bar. Put another way, "Is it possible to construe the plain meaning of the easement by its wording"? The words used in 1940 when the easement was granted may well be more traditional than the words that would likely be used in the 21st century, however, the meaning is essentially as follows: · the Grantor, DOTH HEREBY GRANT, CONVEY AND

ASSURE unto the Grantees as joint tenants and to the successive owners of the [now Strata Corporation / Lowres property] . . ALL AND SINGULAR a right of way over a strip of land twelve (12) feet in width adjoining or adjacent to the Westerly boundary of [the Grant property]. . . . . . · TO HOLD the said right of way and the easement thereby created UNTO the Grantees as joint tenants and the successive owners, forever as appurtenant to the Grantee's lands and the successive owners of same in common with all other persons who may have or may hereafter have a legal right to use the same. · SO that the right and title to the said right of way and the full and complete and uninterrupted use thereof shall run with the above described lands and with the title thereto forever. [28] "Appurtenant" is defined in The Oxford English Dictionary, 12th ed, as "belonging" and so the wording above states the easement is granted to the grantees and their successors (the Grants) as "belonging" to the Grant property. [29] The final section summarized above refers to "uninterrupted use" which would mean uninterrupted by the grantor or his successors, i.e. the strata corporation or Ms. Lowres. There is no wording in the easement restricting the use of the easement which could only be taken as meaning such use would be "at the grantee's pleasure". The grantees were thus intended by the above wording

to have absolute uninterrupted use of the easement. [30] If I am incorrect in the above interpretation and the words are found to be ambiguous, then the analysis would involve an investigation of whether the "surrounding circumstances demonstrate that both parties could not have intended a particular use of the easement that is authorized by the wording of the document" as the defendants urge (see Granfield) [31] In that case, we do not know the circumstances that existed in 1940 when the easement was granted. The particular use at the time of the grant is not necessarily determinative of the issue: Avanti at para.

61. However, it is open to the court to take judicial notice of the fact that automobiles were in use in and around 1940 in the Victoria area and it could easily be found that the parties intended for the use of automobiles on an easement 12 feet in width. If the easement was intended to be limited to use as a footpath, or any particular means of transport, it would have been a very simple matter for the parties to the easement to say so, as was stated in the defendants' examples of 443038 B.C. Ltd. v. Suraj Imports Ltd., 2004 BCSC 307, Robb v. Walker, 2015 BCCA 117, etc. did. Here they did not. It is thus quite feasible that both parties could have intended the use of automobiles on the easement. Further, without such "limiting terms", extrinsic evidence like that the defendant tried to adduce cannot be used to argue for a different agreement than the one recorded: Hillside Farms Ltd. v. British Columbia Hydro & Power Authority, [1977] 3 W.W.R. 749. [32] Also, and with further regard to the surrounding circumstances, I note the decision of Viehbeck v. Pook, 2012 NSSC 48, which discussed the width of an easement in connection with its intended use. The court concluded at para. 94: 94. When you also consider the fact that the Beach ROW was fifteen to twenty feet wide and had, in the past, been used by vehicles, it makes the intention of the parties even clearer. The final

indication arises out of the conveyance of the individual lots themselves. These included a conveyance of a twenty foot driveway over the Clark property, as well as Lots 1 to 4, which is the same width as was used for the Beach ROW. Clearly vehicles were intended to travel over this twenty foot driveway. These deeds also included a conveyance of a four foot right-of-way along the shore front which obviously would have been for pedestrian use only. In my view, if the Beach ROW was to have been limited to pedestrian use, it would have similarly been restricted in width to something in the vicinity of four feet. [See also Lafontaine v. University of British Columbia, 2012 BCSC 805 at para. 59] Similarly, in the case at bar, if the easement had been intended as a pedestrian pathway, it would have been in the range of 4-6 feet in width. The 12 feet granted thus suggests a wider purpose. [33] Further, the defendants take exception to use of the easement by tenants of the Grants and generally use of the easement by anyone other than the current owners. The evidence discloses use of the easement by persons walking through to Reynolds Road, to the Grants' children bicycling on the easement and by tenants of the garage. The easement was and is "appurtenant" to or "belonging" to the Grant property and by the wording of the easement those persons, so long as they were authorized by the

Grants or successors to them to use the easement, would not be excluded from using the easement by the plain wording of the easement. Effectively, the Grants and those authorized by them have unfettered use of the easement, whether by foot, horseback, horse and carriage, automobile or bicycle. [34] I do not find the authorities cited by the defendants regarding who may use the easement to be particularly applicable or helpful including the reference by Madam Justice Southin in Granfield to an "excessive user" using the easement "beyond his grant" since there are no limitations to the grant in the case at bar and the other cases where specific types of users and vehicles were permitted transit since the grant in this case permitted unfettered use. It is apparent from all of the evidence that Ms. Lowres, and to a lesser extent the defendant strata corporation, have interfered with the plaintiffs' right of passage over and use of the easement by erecting structures, placing plants and trees and other objects on the easement to interfere with and impede the plaintiff's use of the easement. [35] I will add that the fact that the easement is immediately adjacent to the Lowres residence creates a difficult situation for everyone involved. It would appear to have been an oversight on the part of the authorities to have allowed construction of the Lowres residence with no setback from

the easement which had been registered against title to the property which now includes the Gait Lane development. A dispute was bound to erupt at some point in time in that the owner of Lot 1 would inevitably on occasion be required to pass over the easement area. Cooperation and compromise was needed to head off any conflict and the manner in which Ms. Lowres in particular gradually took over the easement by placing plants, fencing and various chattels on the property knowing of the easement only tended to exacerbate the dispute. Appropriate Remedy [36] Having determined the plaintiffs' rights to use the easement and in light of the history of this dispute, injunctive relief is the appropriate remedy (see Schoof v. British Columbia (Medical Services Commission), 2010 BCCA 396). Ms. Lowres may be inconvenienced by the easement as it is granted and the placement of her home, but she purchased the land with full knowledge of the easement and I cannot say her respecting the plaintiff's rights will unreasonably impede her use of her property (Vandenberg v. Olsen, 2009 BCSC 1302, aff'd 2010 BCCA 204). Conclusion [37] Having found the defendants have unlawfully interfered with the plaintiff's easement, the plaintiffs are entitled to the following relief: 1) A declaration that the plaintiffs are entitled to an Easement over that portion of lands legally described as: Parcel Identifier: 023-322-012 Legal Description: Strata Lot 1, Section 32, Victoria District, Strata Plan VIS3901 together with an interest in the common property in proportion to the unit entitlement of the Strata Lot as shown on Form 1 The common property of the Owners, Strata Plan VIS 3901as shown on Strata Plan VIS 3901 as Easement 95306G (the "Easement Area").

2) A declaration that the defendants Doreen Susan Lowres and The Owners, Strata Plan VIS3901, and each of them, have wrongfully interfered with the right of the plaintiffs to enjoy the full and complete and uninterrupted use of the Easement Area.

3) A final injunction that the defendant Doreen Susan Lowres and the defendant The Owners, Strata Plan VIS3901, by themselves, or by their respective agents, servants, employees, directors, tenants, invitees of otherwise be restrained from interfering with the full and complete and uninterrupted use of the Easement Area as a right of access to the Plaintiffs' properties legally described as: Parcel Identifier: 006-046-827 Legal Description: Lot 5, Section 32, Victoria District, Plan 4916 Parcel Identifier: 006-046-797 Legal Description: Lot 4, Section 32, Victoria District, Plan 4916 by the plaintiffs and their invitees, save and except only for the purpose of removing structures and items as ordered in order 4 below.

4) An order that the defendants Doreen Susan Lowres and The Owners, Strata Plan VIS3901 do forthwith, and at their expense, remove any and all structures, articles or other items that may reasonably interfere with the ability of the plaintiffs to exercise their full and complete and uninterrupted right of way over the Easement Area, including but not restricted to the following: Plants, trees, hose reels, garage cans, mailboxes, landscaping ties, lattice fence work, gates, patio blocks, barbeques, tables, chairs, garden plots, planters, fence posts and the curb located on the easement 5) An order that in the event either of the defendants Doreen Susan Lowres or The Owners, Strata Plan VIS3901 fail to remove any and all of the structures, articles or other items as aforesaid within seven days of the date of this order, the plaintiffs have leave to remove such obstructions at the cost of the defendant on whose property such obstructions are located.

6) Upon the plaintiffs removing any obstructions pursuant to paragraph 5, their expenses so incurred are to be ascertained before the district registrar of the Victoria Registry of the court. In that event the plaintiffs' taxable costs and disbursements associated with the hearing before the district registrar shall be assessed as special costs payable by the defendant on whose property the obstructions were located, and such costs shall be added to the expenses incurred by the plaintiffs as determined by the district registrar. [38] The plaintiffs seek an assessment of the damages for the interference with their free and uninterrupted use and right of access over the easement. [39] I will receive submissions in writing on the assessment of the plaintiffs' damages for interference with their free and uninterrupted use and right of access over the easement. Submissions are to be submitted in writing no later than September 30, 2016. [40] The plaintiffs have been substantially successful and are entitled to their costs. I will also receive submissions in writing on the appropriate scale of costs no later than September 30, 2016. "Jenkins J." Schedule "A"