McClellan v. Powassan Lumber Co.
The easement was extinguished by the unity of ownership in 1891 and, because the later conveyances contained no express or implied reservation of the right of way, the easement was not revived; accordingly the plaintiff had no enforceable right to the road and the appeal was dismissed.
Source-derived case information.
- Citation
- (1909) 42 SCR 249
- Parties
- Appellant: McClellan; Respondent: Powassan Lumber Co.
- Court
- Supreme Court of Canada
- Jurisdiction
- Canada
- Judgment Date
- 19 May 1909
- Procedural Posture
- Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario; Final Appellate Judgment
- Outcome
- Appeal dismissed with costs
- Legal Topics
- Private Way, Unity of Ownership, Extinguishment of Easement, Reservation in Conveyance, Revival of Easement
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
McClellan
Appellant
Powassan Lumber Co.
Respondent
Procedural Posture
Appeal / Appeal to the Supreme Court of Canada From the Court of Appeal for Ontario; Final Appellate Judgment
Legal Issues
- 1 Whether an easement used as a private way was extinguished by unity of ownership in 1891
- 2 Whether subsequent severance and conveyance without an express or implied reservation revived or preserved the easement
- 3 Whether historical use alone can establish a continuing right of way after unity of ownership
Ratio Decidendi
The easement was extinguished by the unity of ownership in 1891 and, because the later conveyances contained no express or implied reservation of the right of way, the easement was not revived; accordingly the plaintiff had no enforceable right to the road and the appeal was dismissed.
Court Disposition
Appeal dismissed with costs
Orders
- Appeal dismissed with costs
Full Case Text
Judgment text and source record
1 paragraphs
McClellan v. Powassan Lumber Co. Collection Supreme Court Judgments Date 1909-05-19 Report (1909) 42 SCR 249 Judges Fitzpatrick, Charles; Davies, Louis Henry; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander On appeal from Ontario Subjects Property law Decision Content Supreme Court of Canada McClellan v. Powassan Lumber Co., (1909) 42 S.C.R. 249 Date: 1909-05-19 McClellan and Powassan Lumber Co. 1909: May 19. Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ. Easement—Private way—Unity of ownership—Subsequent severance—Revival of easement—Reservation. APPEAL from a decision of the Court of Appeal for Ontario[1], affirming the judgment of a Divisional Court[2], which set aside the verdict for plaintiff at the trial and dismissed the action. In 1891 two parcels of land, on one of which was a grist mill and the other a saw mill, theretofore owned by different persons, became vested in one owner who, in 1894, conveyed away to defendants’ (respondents’) predecessors in title both parcels except certain lots including that on which stood the grist mill which was afterwards conveyed to the plaintiff. A road from the highway over a part of the saw mill property had been used for access to the grist mill from the time it was built, but was obstructed by the defendants in 1906, and an action was brought for an injunction to restrain them from continuing such obstruction and for damages. The plaintiff succeeded at the trial, but the judgment in his favour was reversed by the Divisional Court, which held that the easement was extinguished by the unity of ownership in 1891, and that, as the subsequent conveyances contained no reservation, express or implied, of the right to use the road, the plaintiff could not recover. This judgment was affirmed by the Court of Appeal. After hearing counsel for both parties the Supreme Court of Canada dismissed the appeal for the reasons given by the courts below. Appeal dismissed with costs.[3] Laidlaw K.C. for the appellant. Armour K.C. and McCurry for the respondents. [1] 17 Ont. L.R. 32. [2] 15 Ont. L.R. 67. [3] Leave to appeal to the Judicial Committee of the Privy Council granted 29th June, 1909.