Lemay v. Hardy

Lemay v. Hardy

Majority: Where adjacent proprietors have used a lane in common for more than thirty years, without interruption and animo domini, and titles are lost, that long common use gives rise to a presumption of co-ownership of the lane and entitles the proprietor so possessing to an action to restrain obstructions; accordingly the Court of King's Bench judgment ordering defendants to cease obstructing the lane is affirmed. (Mignault J. dissenting: servitude cannot be acquired by prescription and action not maintainable without title.)

Citation
(1922) 64 SCR 222
Parties
Defendant Appellants: Laurent Lemay and others; Plaintiff Respondent: Dame Emelie (Emilie) Hardy
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
17 June 1922
Procedural Posture
Appeal to Supreme Court of Canada; Action Possessoire (possession Based Property Action) / Final Judgment on Appeal
Outcome
Appeal dismissed with costs; judgment of the Court of King's Bench affirmed; Mignault J. dissenting.
Legal Topics
Right of Passage, Common Use and Co Ownership, Obstruction of Access, Presumption of Ownership From Possession, Acquisition of Servitude by Prescription
Source Language
English
Property Law Civil Procedure Real Servitudes Prescription (acquisitive) Right of Passage Common Use and Co Ownership Obstruction of Access Presumption of Ownership From Possession +1 more

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Parties

Laurent Lemay and others

Defendant Appellants

Dame Emelie (Emilie) Hardy

Plaintiff Respondent

Procedural Posture

Appeal to Supreme Court of Canada; Action Possessoire (possession Based Property Action) / Final Judgment on Appeal

Legal Issues

  1. 1 Whether uninterrupted possession and use of a lane by adjacent proprietors for more than thirty years without title gives rise to a presumption of co-ownership of the lane
  2. 2 Whether a servitude (right of passage) can be acquired by prescription without documentary title
  3. 3 Whether an action possessoire can be maintained by a party claiming a servitude without title

Ratio Decidendi

Majority: Where adjacent proprietors have used a lane in common for more than thirty years, without interruption and animo domini, and titles are lost, that long common use gives rise to a presumption of co-ownership of the lane and entitles the proprietor so possessing to an action to restrain obstructions; accordingly the Court of King's Bench judgment ordering defendants to cease obstructing the lane is affirmed. (Mignault J. dissenting: servitude cannot be acquired by prescription and action not maintainable without title.)

Court Disposition

Appeal dismissed with costs; judgment of the Court of King's Bench affirmed; Mignault J. dissenting.

Orders

  • Appeal dismissed with costs
  • Judgment of the Court of King's Bench (Q.R. 32 K.B. 311) affirmed