Depew v. Wilkes

Depew v. Wilkes

Where a prescriptive easement has been established, a trial judge may not impose an equitable proprietary estoppel remedy (including recurring licence fees) unless there is a finding that asserting the strict legal right would be unconscionable; on these facts prescriptive easements for parking (and the pier) were sustained and licence fees for them were set aside, while equitable estoppel remedies were upheld only where unconscionable conduct or encouragement and detriment supported them (well and concrete blocks).

Citation
C35690
Parties
Respondent (plaintiff): Llewellyn Ernest Depew; Respondent (plaintiff): Doris Louise Depew; Appellant (defendant): Harry Wilkes; Appellant (defendant): Gerald Allan Atkinson; Appellant (defendant): Daisy Elizabeth Crawford; Appellant (defendant): Julie Jacqueline Wise; Appellant (defendant): John Pimentel
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
31 July 2002
Procedural Posture
Civil Appeal From Trial Judgment / Appeal and Cross Appeal From Trial Judgment and Costs
Outcome
Appeal allowed in part. Licence fees for parking and pier set aside; prescriptive easement for parking upheld; equitable easements for the well and concrete blocks upheld; appellants awarded costs of trial on a partial indemnity basis and costs of appeal and cross-appeal on a partial indemnity basis with appeal...
Legal Topics
Prescriptive Easement, Proprietary Estoppel, Adverse Possession, Limitations Period, License Fees, Easements of Necessity
Source Language
English
Property Law Equity Costs Prescriptive Easement Proprietary Estoppel Adverse Possession Limitations Period License Fees +1 more

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Parties

Llewellyn Ernest Depew

Respondent (plaintiff)

Doris Louise Depew

Respondent (plaintiff)

Harry Wilkes

Appellant (defendant)

Gerald Allan Atkinson

Appellant (defendant)

Daisy Elizabeth Crawford

Appellant (defendant)

Julie Jacqueline Wise

Appellant (defendant)

John Pimentel

Appellant (defendant)

Procedural Posture

Civil Appeal From Trial Judgment / Appeal and Cross Appeal From Trial Judgment and Costs

Legal Issues

  1. 1 Whether trial judge erred in applying equitable proprietary estoppel after finding prescriptive easements
  2. 2 Whether parking on Lot 13 satisfied requirements for a prescriptive easement
  3. 3 Whether pier use qualified as a prescriptive easement

Ratio Decidendi

Where a prescriptive easement has been established, a trial judge may not impose an equitable proprietary estoppel remedy (including recurring licence fees) unless there is a finding that asserting the strict legal right would be unconscionable; on these facts prescriptive easements for parking (and the pier) were sustained and licence fees for them were set aside, while equitable estoppel remedies were upheld only where unconscionable conduct or encouragement and detriment supported them (well and concrete blocks).

Court Disposition

Appeal allowed in part. Licence fees for parking and pier set aside; prescriptive easement for parking upheld; equitable easements for the well and concrete blocks upheld; appellants awarded costs of trial on a partial indemnity basis and costs of appeal and cross-appeal on a partial indemnity basis with appeal...

Orders

  • Paragraph 4 of trial judgment varied to remove reference to equitable easements by estoppel (parking)
  • Paragraph 5 of trial judgment struck out (parking licence fee removed)