Thompson v. Simard

Thompson v. Simard

The appeal was dismissed because the Court held that the repeated formal references to the 1817 servitude, supplemented by the 1852 compromise and plan, established an apparent right of passage; a sale by a former unified owner that conveyed one lot subject to that servitude revived it; and apparent servitudes are not purged by sheriff's sale, entitling the respondent to the servitude.

Citation
(1908) 41 SCR 217
Parties
Appellant/defendant: Annie Barrett Thompson; Respondent/plaintiff: Arthur Simard
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
10 November 1908
Procedural Posture
Civil Appeal (property) / Appeal to the Supreme Court of Canada From Court of King's Bench, Appeal Side, Province of Quebec
Outcome
Appeal dismissed with costs; judgment of the Court of King's Bench affirmed.
Legal Topics
Servitude, Easement, Unity of Ownership, Extinction and Revival of Servitude, Sheriff's Sale, Apparent Servitude, Evidence of Lost Deed, Construction of Deed, Customary Law Vs Civil Code
Source Language
English
Property Law Servitude Easement Unity of Ownership Extinction and Revival of Servitude Sheriff's Sale Apparent Servitude Evidence of Lost Deed +2 more

Case Brief

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Parties

Annie Barrett Thompson

Appellant/defendant

Arthur Simard

Respondent/plaintiff

Procedural Posture

Civil Appeal (property) / Appeal to the Supreme Court of Canada From Court of King's Bench, Appeal Side, Province of Quebec

Legal Issues

  1. 1 Whether a deed of sale executed after unity of ownership that refers to an original servitude revives that servitude
  2. 2 Whether descriptions in a compromise and accompanying plan sufficiently identify an apparent servitude for title purposes
  3. 3 Whether an apparent servitude is purged by adjudication on a sheriff's sale under writ of execution

Ratio Decidendi

The appeal was dismissed because the Court held that the repeated formal references to the 1817 servitude, supplemented by the 1852 compromise and plan, established an apparent right of passage; a sale by a former unified owner that conveyed one lot subject to that servitude revived it; and apparent servitudes are not purged by sheriff's sale, entitling the respondent to the servitude.

Court Disposition

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

Orders

  • Appeal dismissed with costs.
  • Judgment of the Court of King's Bench, appeal side, affirmed.