MacNeil v. MacNeil

MacNeil v. MacNeil Court Supreme Court Date 2014-05-09 Citation 2014 NSSC 171 Docket Syd 418332 Judge/Registrar/Adjudicator Edwards, Frank C. (Honourable Justice) Document Type Decision Decision Content Supreme Court of Nova Scotia Citation: MacNeil v. MacNeil, 2014 NSSC 171 Date: 2014-05-09 Docket: Syd. No. 418332 Registry: Sydney Between: Timothy Paul MacNeil, Virginia Susan MacNeil, Russell Baker, Mary Jennifer Baker, Gordon MacNeil, Sheila MacNeil, Dan Angus MacNeil and Marion Gale MacNeil Applicants v. Terrence MacNeil and Anne MacNeil Respondents Judge: The Honourable Justice Frank Edwards Heard: March 25, April 9, 10, 11, 14, 15, 1 22, 24, 25, and May 1, 2014, in Sydney, Nova Scotia Written Decision: May 9, 2014 Counsel: Robert Sampson, Q.C. and Jennifer Anderson, for the Applicants Darren Morgan, for the Respondents Mark V. Rieksts, for the Registrar General, Land Titles, Intervenor CONTENTS Paragraphs INTRODUCTION 1-7 I. The Prescriptive Easements 8-82 Baker’s Use of Pathway to Point 8-31 Sheila and Gordon’s Use of Pathway to Point 32-41 Dan and Gale’s Use of Pathway to Point 42-58 Tim’s Garage Property #754 59-63 Tim’s Cottage Property #770 and 904 64-67 Butch Property – Use of Pathway to Point #747 68-82 II. The Three Deeded Rights of Way 83-109 Background 83-96 Surveyor Attwood 97-110 III. The Events of 1990 – 2013 111-141 The 1993 Confrontation 113-117 “Behind my Back” Offers 118-119 The Culverts 120-123 The Whirlybird 124-126 The 2006 Eruption 127-132 Opening the Old Road 133-135 The Trailer Pad 136-138 Tim Shares the Blame 139-141 IV. Scope of the Easements 142-148 Injunction: Both sides need restraint 145-147 No Easement for Public at Large 148 V. Nuisance 149-151 VI. Registrar General, Land Titles 152 VII. Costs 153-155 By the Court: [1] Introduction: This is an Application for an Order confirming the existence and scope of easements (both deeded and prescriptive) across PID 15590326 (“#326”), (“the Property”), which allow access to an area known locally as “the Point” via an established pathway (“the pathway”). The Applicants also seek an injunction against any activities to block or otherwise impede access to or use of the pathway and the Point, and an Order against the Respondents in nuisance. [2] The Application sought an Order pertaining to consent for “stick wharves”, but I have decided to recommend (by way of a copy of this decision) to the Department of Natural Resources that no stick wharves should be permitted at the Point. In my view, the area is too small for a wharf. The builder of the wharf would therefore dominate an unfair share of the available beach area. Given the recent history of wharves at the Point, their installation by anyone would inevitably result in conflict and ill feeling. [3] The Property was originally owned by Archie MacDonald (Archie). In the late 1960’s and early 1970’s, Archie conveyed cottage lots to various persons. Those lots are now owned by the Applicants. The Property includes all of the available water frontage for the Applicants on Benacadie Pond. The Applicants have to cross the Property to get to the Point. They have done so via the pathway. The area of the Point (approx. 100’ x 150’) is the only desirable beach area in the vicinity. [4] The Applicant, Timothy MacNeil (dob August 31, 1961) (“Tim”), is the twin brother of the Respondent Terrence MacNeil (“Terry”). In 1990, Archie died leaving the property to his niece, Bernadette Heinekamp (“Bernadette”). Bernadette was a resident of Ontario until she died in 2012. Her known visits to the area were in 1993, 1995 and 2009. [5] In 1993, Tim alienated Bernadette while clearing land for his cottage. At the same time, Terry began a friendship with Bernadette which resulted in his having control and ultimately ownership of the Property. [6] In the early 1970’s, a new highway was built leaving the abandoned old highway running between the Applicants’ properties and the Property. The Applicants all had driveway access from the new highway. The Property did not. By the time Bernadette got the Property in 1990, the old road had grown-in to an extent that made it barely passable with a vehicle. The use, misuse, and reconstruction of the old road, together with the use and misuse of the pathway and the Point, led to bitter conflict between Terry and Tim. The other Applicants were unavoidably drawn into this conflict which resulted in the present litigation. [7] This Application was initially scheduled for three days. On February 11, 2014, I dealt with objections to the contents of the Affidavits. I then heard 10 days of evidence (commencing March 25, 2014) and one day of submissions concluding on May 1, 2014. I also viewed the scene on April 30, 2014 (not included in the 10 days). I. The Prescriptive Easements [8] Baker’s Use of Pathway to Point: Jennifer (Fletcher) Baker (“Jennifer”) (dob March 21, 1963) is the daughter of Alexander Petrie (“Alexander”). Alexander acquired #796 (throughout, for ease of reference, I use only the last three digits of the PID number) from Archie by deed dated October 17, 1969. Alexander conveyed the property to Jennifer and her husband Russell by deed dated June 9, 1988. [9] Russell and Jennifer began dating in 1979 and were married in 1987. Jennifer recalls her father building the cottage (which she and Russell now use) shortly after he acquired the property. She says that, as children, she and her brothers and sisters spent their summers there and regularly spent time at the Point, “… sunning, playing in the sand, and swimming.” [p.35(e)]. They always used the pathway to access the Point. [10] Jennifer and Russell have continued to use the cottage and access the Point in the same manner every summer since they acquired the property. Jennifer says they did so “openly, notoriously and continuously and as of right.” [p.46]. Jennifer insists that “… at no time prior to on or about 2006, did we receive any formal or written directions from him (Terry) or anyone else relating to our continued use of the Point.” [p.77] [11] William Kenneth Brake (“Ken”) acquired the adjacent lot #762 also in 1969. In his rebuttal affidavit at para.6(a), Ken states in response to para.23 of Anne’s affidavit: Alexander Petrie and his family would attend at their bungalow in Benacadie Pond on numerous occasions each summer, including weekends and “miner’s vacation”. Generally, our family would go to Benacadie Pond during the week while, from what I recall, the Petrie family would be there on weekends. Often when we were leaving Benacadie Pond, the Petries would be arriving and vice versa. In more recent times, the Petrie family bungalow has been used by Alexander Petrie’s children, in particular his daughter, Jennifer, and her husband, Russell Baker. [12] The Respondents dispute Jennifer and Ken’s evidence. They maintain that the Baker/Fletcher property was used very sporadically before the early 1990’s. [13] Erma Williams (dob June 16, 1954) is the daughter of Patrick Brake (“Patrick”). Patrick purchased #754 from Archie in 1969. Ken Brake’s lot (#762) lies between Patrick’s lot and the Baker/Fletcher lot. Erma would have been 15 years old in 1969. She says her father built a cottage shortly after acquiring the land. She and her mother and siblings would stay at the cottage “full time from mid-May to mid-October”. She continued this practice after she was married. [14] In para.18 Erma states: “That as far as I can remember since at least 1969, Alexander Petrie very seldom if ever spent any time at his property.” [15] In response, Jennifer and Russell filed a Rebuttal Affidavit wherein para.8(a) reads as follows: When Jennifer was growing up, the Petrie family attended at Benacadie Pond on “miner’s vacation” and some weekends each year. On or about the 1980s, the Petrie property mainly began to be used by Russell, Jennifer, their family and guests. From approximately June to October each year, Russell and Jennifer generally spend most weekends as well as summer vacations at the cottage in Benacadie Pond. Russell has one month vacation every year. He has spent his entire vacation in Benacadie Pond each year since our daughter, Michelle, was born in 1994. [16] In her evidence before me, Erma maintained that para.8(a) was not accurate, that Alexander Petrie seldom used the bungalow, “sometimes a few days on the Miner’s vacation and not every year – there very sporadically.” In cross-examination, Erma stated that “(Alexander) built a cottage buy only used it occasionally – but there during two week Miner’s vacation.” That is a long way from her original claim that Alexander “seldom if ever, spent any time at his property.” [17] Erma was promoted by Respondents’ Counsel as a disinterested witness with no stake in the outcome of this litigation. In the material sense, that is true. However, I had the impression that she favored Terry’s side in this dispute and that may have affected her memory. Erma eventually became the owner of Patrick’s property (by deed from her mother in 1999). She sold it to Terry and Anne in April 2002. [18] In the context of all the evidence, I prefer Jennifer’s evidence to that of Erma. There is some evidence of ill will between Erma and the Applicants Sheila and Gordon (see Erma paras.49-54, also paras.70-71). This reinforces my view that she may have been overly sympathetic to Terry’s point of view. As I will note later, Terry is an overbearing personality. I have no doubt but that he would have used his powers of persuasion to get Erma to remember things in his favor (e.g. as discussed later, when remembering the exact location of a deeded right-of-way). [19] Terry also questioned Alexander’s use of his property. On cross-examination he did concede that between 1970 and 1980 (Alexander) and his kids used the Point from time to time. He also stated that the Fletchers were avid golfers who therefore did not spend much time at their cottage. [20] I am satisfied that, beginning in 1970, Alexander and his family began using his cottage on a yearly basis, usually and primarily during the Miner’s vacation in late July or early August. They would also have done so on some summer weekends. As Applicants’ Counsel noted, the raison d’etre for having a cottage would be to access the beach and enjoy the usual beach activities. I am satisfied that Alexander and his family regularly accessed the beach (the Point) via the pathway. They did so openly, notoriously and continuously without obtaining permission from anyone. Russell and Jennifer have done the same since they acquired Alexander’s property. [21] To gain prescriptive rights under the doctrine of Lost Modern Grant, an applicant must again establish use of another’s land that is open, notorious, continuous and without permission for a period of 20 years. Upon proof of this, the Court is empowered to presume a grant of easement has been made but was lost. [22] In Nickerson v. Hatfield, 2013 NSSC 133 para.47, Coady, J. quoted with approval from Charles MacIntosh’s text, Nova Scotia Real Property Practice Manual at page 7-21, stating as follows: The [doctrine of lost modern grants] is a judge created theory which presumes that if actual enjoyment has been shown for 20 years, an actual grant had been made when the enjoyment began, but the deed granting the easement has since been lost. [23] Under the doctrine of Lost Modern Grant, the 20 year period need not be immediately next to the action. Instead, the use can fall during any 20 year period, so long as the qualities of use during those 20 years satisfy the requirements of a prescriptive easement (Nickerson v. Hatfield, supra para.46). [24] Use of the Point by the Applicants and their predecessors in title constitutes continuous use, even though the use was and, for the most part, remains seasonal in nature. [25] In Gilfoy v. Westhaver, 1989 CanLII 1494 (NSSC), Tidman, J. discussed summer use and held that a period of use is not defeated simply by virtue of the use being seasonal in nature. He cited with approval Bower et al v. John Etherington Ltd. et al (1996), 53 DLR 2d 332 (NSSCTD), noting that, if an easement is used and enjoyed only during summer months, prescription may still be established because consistent use from summer to summer is distinguishable from occasional or sporadic use by a trespasser. He stated: . . . a right-of-way by prescription may be established even though there were substantial periods in each year when no use was made of it, but such lack of use was explainable consistently with continued casual enjoyment of the right and in such a way as not to make the actual user merely the occasional act of a trespasser. Such is the case here where the use of the right is consistent with continued actual enjoyment of the right as and when access to the plaintiffs' property was required or the property usually enjoyed. [26] In Mason v. Partridge, 2005 NSCA 144, the main issue on appeal was whether Partridge had granted permission to Mason to use an old logging road to cross over Partridge’s land. The Court of Appeal found the trial judge committed an error in law by not considering the difference between acquiescence and permission. At paragraph 30 -31, quoting Gale on Easements, the Court of Appeal called acquiescence the “foundation of prescription” and defined it as “passive toleration” that may be inferred from an owner’s actions. Acquiescence is not implied permission; instead acquiescence is acceptance of actions known to the property owner. [27] The Court of Appeal went on to hold the burden of proving acquiescence falls to the claimant seeking prescriptive rights. Upon proof the true owner acquiesced to the use of his property, the burden shifts to the owner to establish some positive act of permission. At paragraph 45, the Court stated as follows: In my view, the judge also erred in another respect of his approach to the evidence about “permission.” […] once there is proof of acquiescence in acts of user which are of such a character as to support a claim of right, the claimant has established that the acts were as of right unless the owner points to some “positive acts” on his or her part which either expressly or impliedly grant permission. [28] At paragraph 51, the Court of Appeal further held the trial judge had erred in law by failing to recognize he could “infer from use of lands to which an owner acquiesces that such use was ‘as of right’ and sufficient to support a claim of prescription”. On the facts, the Court ordered an easement in favour of Mason’s property over the lands of Partridge. [29] By joining the Applicants and their predecessors in title at the Point, Archibald MacDonald acquiesced to their use of his land and, thus, their use was as of right. Joining the families on the shore does not constitute a positive act of permission. Archibald MacDonald committed no positive acts to expressly or impliedly grant permission. He simply allowed the Applicants and their predecessors in title to use the Point. In so doing, he acquiesced to their presence and such acquiescence does not constitute permission. [30] Bernadette Heinekamp assumed ownership of the Property upon the death of Archibald MacDonald on or about 1990. Despite her conflict with Tim in 1993, Bernadette took no steps to restrict Tim’s, or any of the Applicants’, use of the Point until 2000 at the earliest. Even then, when Terry became her agent, there were no steps taken to restrict the Applicants’ use of the Point until 2006 or possibly as late as 2008. As noted, the prescriptive easements had all crystallized by the mid 1990’s. Like Archie before her, I am satisfied that Bernadette was well aware of the Applicants’ use of the Point. Like Archie, she simply acquiesced to their use. [31] Under the doctrine of Lost Modern Grant, a prescriptive easement to use the pathway to the Point in favor of #796 would therefore have crystallized no later than 1995. [32] Sheila and Gordon’s use of the Pathway to Point: Sheila (Brake) MacNeil (“Sheila”) (dob August 23, 1966) is the daughter of William Kenneth Brake (“Ken”). Ken acquired #762 from Archie by deed dated September 12, 1969. Ken conveyed the property to Sheila and her husband Gordon by deed dated May 14, 2002. [33] Ken put a trailer on the property in 1969 or 1970. He and his family used the property each year and accessed the Point via the pathway for beach related activities. Sheila confirms Ken’s evidence in this regard. Both deny ever getting permission from anyone to use the pathway to get to the Point. [34] Sheila and Gordon began dating in 1990 and married in 1994. They have two boys aged 16 and 17. Sheila and Gordon got a larger trailer and used it every year. They regularly used the pathway to the Point. They deny that anyone ever gave them permission to do so. [35] Again both Terry and Erma discount the use Ken made of his property. In para.53 Erma states: THAT there would be some consecutive years that my uncle Ken Brake and/or his family would not attend on his property except to check on his trailer and land during the entire summer, while in other years my uncle Ken Brake and/or his family would only spend a single night or so in the trailer for the while summer; [36] In his rebuttal affidavit at para.8(j), Ken replies: 8(j) Paragraph 53 – This is not accurate. Generally, my family would go to Benacadie Pond during the week, while, my brother, Patrick Brake, and his family would use his bungalow on weekends. [37] Terry says he did not see Sheila swimming at the Point until the late 1990’s. Until then he insists that she swam in front of their own property. [38] I believe Sheila and Ken. Aside from the general frailty of Terry and Erma’s evidence (discussed elsewhere), I am satisfied that it would not make sense to swim on the shore in front of Ken’s property when the highly desirable sandy beach Point was only a stone’s throw away. And there was ready access by way of the nearby and well established pathway. [39] As an aside, I should deal with another issue raised by Erma. Her paras.70 and 71 read: 70. THAT one such example of this (of Bernadette giving directions) was an occasion when the Applicant Sheila MacNeil became owner of my uncle Ken Brake’s property, wherein she and/or her husband Gordon MacNeil started digging up the old roadway, which was the only access Bernadette had to the subject property, and also leaving personal belongings on the subject property; 71. THAT I was present and heard Bernadette tell the Applicant Sheila and Gordon MacNeil to refrain from digging up the old roadway and to remove their personal belongings from the subject property; [40] This confrontation is denied by Sheila. But, even if it did happen, it has nothing to do with Sheila and Gordon’s continued use of the pathway. This incident is supposed to have occurred in the mid 1990’s. Sheila and Gordon continued to use the pathway as they had done before without interruption by anyone until at least 2006. [41] As stated above regarding the Bakers, I am satisfied that Ken and then then Sheila and Gordon used the pathway and Point for more than 20 consecutive years openly, notoriously and continuously without permission. I am satisfied that a prescriptive easement in favor of #762 crystallized no later than 1995. [42] Dan and Gale’s Use of Pathway to Point: Dan was born in Benacadie West in 1939, he is 74 years old. Just before the recommencement of this hearing on April 9, 2013, Dan suffered a stroke. This made his attendance to be cross-examined on his affidavit impossible. [43] Gale testified on April 17, 2014. At that time I asked her about Dan’s condition. Gale advised that Dan was in no condition to testify at that time but might be in a couple of weeks depending on what the doctors said. At that time, I was reluctant to extend this matter further but, more importantly, I did not want to pressure an elderly gentleman with a serious medical problem to testify. I therefore opted to admit Dan’s affidavit under the principled exception to the hearsay rule. [44] In R. v. Khelawon, 2006 SCC 57, the Court considered whether certain statements were sufficiently necessary and reliable to be admitted under the principled exception to the hearsay rule. The Court discussed factors to be considered when determining whether a hearsay statement is sufficiently reliable to be admissible. At paragraph 4, Charron, J. stated as follows: [4] . . . all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. (Emphasis added) [45] At paragraphs 61-63, the Court went on to state as follows: [61] Since the central underlying concern is the inability to test hearsay evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. As some courts and commentators have expressly noted, the reliability requirement is usually met in two different ways: . . . [62] One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form. Wigmore explained it this way: There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. [— 1420, p. 154] [63] Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination . . . (Emphasis added) [46] In R v. Hart, 1999 NSCA 45, Cromwell, J.A. (as he then was), set out a (non-exhaustive) list of factors to consider when assessing whether reliability of a hearsay statement under the principled approach. At page 22 of the decision, Justice Cromwell stated as follows: . . . reliability has been considered as relating to the circumstances in which the statement was made which tend to assure its trustworthiness. Without attempting an exhaustive list of such circumstances, relevant considerations include whether the statement was made on oath, whether it is made in the presence of the trier of fact (R. v. B.(K.G.), supra), whether the maker had any motive to falsity, whether the story is one that the witness could imagine if the events had not occurred (R. v. Khan, supra), and whether, in all the known circumstances, the statement could reasonably have been expected to have changed significantly had the declarant testified and been cross-examined (R. v. Smith, [1992] 2 S.C.R. 915). (Emphasis added) [47] I will keep the lack of cross-examination in mind as I assess the weight I will give to various portions of Dan’s affidavit. Much of Dan’s affidavit is confirmed by other affiants. Unlike the others, he is able to offer evidence regarding use of the Point by the general public. I will ignore that portion of his affidavit. [48] As noted, Dan was born in Benacadie West in 1939. The old homestead, still occupied by his brother Charles, is almost directly across the pond from the Point. Dan moved to Ontario in 1957. In 1989, Dan purchased #812 from John O’Brien. He says he resided on the property each summer from 1989 to 2012 when he and Gale moved there permanently. John O’Brien had purchased #812 from Archie in 1973 and had built a substantial cottage on the property soon thereafter. [49] In paragraph 35(h), Dan says in part that the pathway was “… as far back as I can remember, always identifiable and well beaten from previous continuous use…” and in paragraph 36(i): “The said pathway was the only way I used to access the beach area of the Point.” [50] In addition to #812, Dan and Gale own two adjacent lots, #838 and 820. Properties 812 and 820 have deeded easements to Benacadie Pond which I will consider in a separate section of this decision. The location of the deeded easement for #820 is one of the more contentious issues in this lawsuit. At this time, however, I am considering only whether Dan and Gale have a prescriptive easement to access the Point via the pathway. [51] The three lots owned by Dan/Gale are on the eastern side of the new highway (constructed in the early 1970’s). The most direct access to the pathway is to cross the new highway to Tim’s cottage property, then cross Tim’s property to the old highway, and cross the old highway to the pathway. Tim testified that before he cleared his property in the early 1990’s, there was a clearly visible path across his property (consistent with the use described by Dan/Gale). [52] Gale testified that, beginning in 1990, she and her family (they have three children) have attended the cottage every summer and went to the Point almost every day (her more so than Dan). She confirms Dan’s para.35(s) that such use was “open, continuous and, until recently, without interruption. Like all the other Applicants, they deny that anyone ever gave them permission to use the Point. [53] Dan and Gale received the lawyer’s letter dated April 9, 2008 advising them that they had Bernadette’s permission for walking access to the beach. At that date, Dan and Gale would have had 17-18 years occupation. I must therefore determine whether there is sufficient evidence of use by the previous owner, O’Brien, to crystalize a prescriptive easement sometime prior to 2008. [54] The evidence of O’Brien’s use is conflicting. Terry and Erma claim that the O’Briens were intermittent users of their property and did not go to the Point. [55] Jennifer says that she recalls that O’Brien and his family in the 1970’s and 1980’s regularly accessed the Point via the pathway for beach activities (see paras.62 and 65). In cross-examination, Jennifer insisted that she could not recall a summer (during the stated period) when the O’Briens were not on the beach. I believe her. Sheila says the same (see paras.64 and 67). And Tim at paras.85 and 88, gives the same evidence. [56] I am aware of Respondents’ Counsel’s suggestion that the evidence of O’Brien’s usage is frail. However, in the context of all the evidence, I am satisfied that sufficient use by the O’Briens to start the prescription meter running is a reasonable inference I can make. I believe Sheila, Jennifer and Tim on this aspect of their evidence. [57] As well, I consider the context. In the 1970’s and 1980’s, I have already found that the Petries and the Ken Brakes were accessing the Point via the pathway. As I will be explaining, I am satisfied that the Patrick Brakes and the Butch MacNeils were doing the same thing. Keep in mind that the Point was the only sandy beach area in the vicinity. I accept Tim’s evidence that there was a well-worn path across what is now his cottage property before he cleared it. I doubt whether Dan/Gale had just established that path in one or two seasons. [58] In that context, in 1973 O’Brien has just built a new cottage. Where would he and his family go to the beach and how would they get there? The answer is obvious and inescapable. The O’Briens would have used the same route later used by Dan/Gale. There is no evidence the O’Briens ever got permission or that their use of the pathway was interrupted. I am therefore satisfied that a prescriptive easement in favor of #812 would have crystallized no later than 1993. As noted, this prescriptive easement goes across Tim’s cottage property. Tim/Virginia and Dan/Gale should have a formal easement agreement prepared in order to forestall any confusion or conflict in the future. [59] Tim’s Garage Property #754: This is the former Patrick Brake property which lies between the “Butch” MacNeil property (#747) - now Terry’s, and the Ken Brake property (#762) – now Sheila/Gordon’s. The chain of title is as follows: Archie to Patrick Brake (1969); then to Grace Brake (1980); then to Gordon and Erma Williams (1999); then to Terry (2002) and finally to Tim and Virginia (2004). [60] As noted previously, Erma Williams is Patrick Brake’s daughter. When her father got the property in 1969, Erma was 15 years old. Erma testified for the Respondents and, as I have also noted, she is obviously sympathetic to Terry’s position. As noted, there is evidence of friction between Erma and Sheila (see for example paras.49-52). [61] There is no doubt but that the Patrick Brake family utilized and accessed the Point in the same manner as the other cottage owners. Erma attempts to minimize that usage by noting that the Point was not safe for younger children and they swam in front of the cottage (paras.26-28). But in para.39 she states: That as teenagers and adults, those who had cottages in the area would walk down the old roadway, cross over the path in single file as the pathway was only wide enough for one (1) person to walk down at a time, and swim at the Point. [62] As noted, Erma had sworn that she was there every year from May to October from the time her father built the cottage (1970) until she sold the property to Terry in 2002. She maintained that they only accessed the Point with permission from Archie and later, Bernadette. I simply do not believe that. She may have confused acquiescence with consent or believed in her own mind that Archie/Bernadette could prevent access at any time. But I am sure that her family, like the families of the other cottage owners, went to and from the Point via the pathway, openly, continuously, and without interruption or permission (see also Jennifer para.58 and Sheila paras.56 and 57). There is nothing in the evidence to suggest that Archie would have treated Patrick Brake any differently than the other cottage owners. [63] In the result, I am satisfied that a prescriptive easement to use the pathway to the Point in favor of #754 would have crystallized no later than 1995 and probably as early as 1990. [64] Tim’s Cottage Property #770 and 904: Tim’s cottage property comprises two adjacent lots, Numbers 770 and 904. The deed to the former contains a written access to Benacadie Pond which I will discuss separately later. At this time, I will deal only with the prescriptive easement issue. [65] I will be brief. Archie conveyed 770 to Earl Currie in 1969; then Currie to Dennis MacIntyre in 1980; then to Tim in 1992. Tim got 904 directly from Archie in 1989. There is no evidence of use by Currie or MacIntyre, or Archie prior to 1989. The earliest the clock can start for Tim is 1989 and therefore the earliest crystallization date would be 2009. [66] There is some confusion regarding the lawyer’s letter of April 9, 2008. On page 12 of their pretrial brief, the Applicants say that Tim/Virginia did not receive this letter. In para.100 of his affidavit, Tim acknowledges that he did receive it (he exhibits a copy of same as Tab L). [67] I am satisfied that Tim did receive the letter (or at least was aware of its contents) shortly after April 9, 2008. The twenty-year prescription period (1989-2009) was therefore broken before any prescriptive rights crystallized. [68] Butch Property – Use of Pathway to Point #747: The prescriptive issue on this property is somewhat moot as it now belongs to the Respondent, Terry. Terry also now owns the Property and therefore has no need for an easement to get to the Point. But it is probably worth a brief look in order to demonstrate the consistency of use by all the cottage owners going back to the early 1970’s. [69] As noted elsewhere, Archie deeded the #747 to John A. MacNeil (“Butch”) on October 17, 1969 (Terry Ex.12). Terry testified that Archie in fact had permitted Butch to build the cottage on 747 in the 1950’s. This was replaced by a new cottage in 1974. From the 1950’s onward, Butch’s family, including his wife Effie, daughters Florie and Thelma, and twin sons, Terrence and Timothy, used the property during the summer months. They all regularly accessed the Point by using the pathway (see Tim paras.36-44). [70] Terry says they used the pathway with Archie’s permission. Tim says no permission was ever given. Their older sister, Thelma (dob August 17, 1956) provided a rebuttal affidavit. Thelma says that until this dispute arose she did not know that the pathway was on Archie’s land, she thought it was public property (see para.6k). Thelma thus was not aware of Archie giving anyone permission to use the Point. [71] Butch died in 1977. The family, especially Terry and Tim, continued to use the cottage (and the pathway and Point) every year. Effie died in 1989. Members of the family continued to use the property every year. [72] Terry attempted to introduce voluminous hearsay evidence to support his position. I struck many paragraphs from Terry’s original affidavit where he attempted to introduce alleged conversations he had had with Archie (deceased 1990), or conversations with his father Butch (deceased 1977) or mother Effie (deceased 1989). In the latter, Terry wanted the Court to accept what Butch or Effie had said Archie had said (double hearsay). [73] One incident Terry was particularly keen to tell about was a mid-1970’s tree cutting incident. (In fact, I had to caution Counsel for attempting to elicit this evidence through Erma after I had ruled it inadmissible.) The bottom line was that Terry’s mother allegedly told him that Archie was so upset about the incident that Archie threatened to ban everybody from using the Point (Terry, paras.73-79). [74] Erma recalls the same incident (paras.32-35) which she says she heard about first hand from Archie. Erma does not mention Archie’s alleged threat to ban everyone from using the Point. Erma says Archie “reminded the (Fletcher) family of his rules with respect to the subject property, which included not removing any live trees.” (Para34) [75] This is all such blatantly inadmissible hearsay that nothing further need be said. There is no independent indicia of reliability beyond what Erma says a deceased person said (or Terry, what a deceased person says another deceased person said). [76] I recognize the difficulty a person in Terry’s position faces. To be as fair as possible, I did allow some hearsay exceptions where the deceased Bernadette allegedly made statements to several of the Applicants. Her 1993 conversation with Tim and her Tim Horton’s meeting with Russell are examples. What Erma says she heard Bernadette tell Gordon and Sheila (para.71) or what she heard Archie tell Ken Brake (para.46) are further examples. [77] The foregoing conversations were either denied or remembered differently when those involved were cross-examined. In the end, it was not helpful evidence. In the same vein, I could have admitted (but did not) Terry’s evidence that Bernadette told him she had given Russell permission to moor his boat off the Point (Terry paras.269-271) and offered her money to build a wharf (para.289) which I did allow. In his rebuttal affidavit (para.5q), Russell acknowledges that he moored his boat with Bernadette’s permission. [78] Getting permission to moor a boat or build a wharf at the Point is not the same as getting permission to use the pathway to go to the Point to swim or sunbathe. Russell and Jennifer have satisfied me that they have a prescriptive right to go to the Point for normal beach activity. Independent of that right, Russell acknowledges that he needed permission to moor his boat there. That is not inconsistent with his prescriptive right to be there. [79] The Respondents would have a legitimate complaint if I were to find that the scope of the prescriptive easement included the right to moor a boat or build a wharf. But, as I stated during final submissions, I was not leaning that way. In fact, I can now say that the scope of the prescriptive easements (or the deeded easements) does not include the right to moor a boat or build a wharf. The first wharves did not appear until the 1990’s. Crystallization was therefore not possible before 2008. [80] I did allow Terry to say what Bernadette had told him where there was some external indicia of reliability (e.g. the 2000 and 2006 notices – Terry’s Exhibits 42 and 23 respectively). As I have now found that the prescriptive easements had crystallized between the early to mid 1990’s, much of that evidence is ultimately moot on the easement issue. [81] In the end, there is no pre-2006 admissible evidence that I believe on the alleged granting of permission by Archie or Bernadette to use the pathway and Point. Even if I had admitted some or all of the tendered hearsay (and double hearsay), I would have no basis to accept it as true. In fact, the weight of the admissible evidence is that the hearsay evidence is not true. At most, Archie and Bernadette acquiesced in the use of the pathway and Point by the present Applicants and their predecessors in title. Acquiescence is not consent. There is no evidence of any letters or written notices by Archie or Bernadette prior to 2000. There is no direct evidence from any living person that he/she was present when Archie or Bernadette restricted access to the Point. [82] Under the doctrine of Lost Modern Grant, a prescriptive easement to use the pathway to the Point in favor of #747, the “Butch” property, would therefore have crystallized no later than 1990. II. The Three Deeded Rights of Way Background: [83] 1. Tim’s Cottage Property “770” contains the following right-of-way (Row): Together with the use in common of a right-of-way with rights of ingress and egress to the Benacadie Pond over the Old Benacadie Road. (Tim para.21) [84] Back Title to Tim’s Cottage Property “770” 1. June 9, 1969: Archibald MacDonald to Earl Currie; 2. August 11, 1980: Earl Currie to Dennis MacIntyre; 3. April 22, 1992: Dennis MacIntyre to Tim and Virginia. See Ex17(c) [85] 2. Dan’s Property “820” contains the following ROW: “Together with a right-of-way in common with the Grantor and in common with other persons given a similar right to pass over the lands of the Grantor located to the North the lands herein described, which lands are bounded on the North by the shores of Benacadie Pond and lie to the North of the highway referred to above.” Back Title to Dan’s “820” 1. September 28, 1972: Archibald MacDonald to John Rostek; 2. April 22, 1993: John Rostek to Terrence MacNeil; 3. October 4, 1994: Terrence MacNeil to Dan and Gale. [86] 3. Dan’s Property “812” contains the following ROW. “Together with a right-of-way in common with others, 10’ wide over lands of Archie MacDonald running from the said Castle Bay – Pipe Cove Highway to the Shores of Benacadie Pond and being the North Easter 10’ of the lands owned by Archie MacDonald and lying to the southwest lands owned by John Butch MacNeil.” [87] Back Title to Dan’s Property “812” 1. June 12, 1973: Archibald MacDonald to John O’Brien; 2. October 25, 1989: John O’Brien to Dan and Gale. [88] On June 9, 1969, Archie conveyed #770 to Earl Currie with the right of way/easement: Together with the use in common of a right-of-way with rights of ingress and egress to the Benacadie Pond over the Old Benacadie Road. [89] A month before, in May 1969, Archie had conveyed #754 to Patrick Brake; on September 1969, #762 to Kenneth Brake; on October 7, 1969, #796 to Alexander Petrie and #747 to John A. MacNeil (Butch, Tim and Terry’s father). [90] By the end of 1969, therefore, Archie had conveyed what he owned on the eastern side of the Old Benacadie Road except for #318 (conveyed to Terry on April 20, 1989. (For clarity, see the Property Online Map, Ex.D in Dan’s affidavit or also Exh.D in Tim’s affidavit.) Of course, Archie still retained all of the Property #326 on the west side of the Old Benacadie Road. [91] The point is that by 1972 (when Archie conveyed #820 to John Rostek, and 1973 when Archie conveyed #812 to John O’Brien), Archie no longer had the ability to grant an easement directly to the pathway. By that time, Archie had sold everything between #820 and #812 and the pathway except “… the lands of the Grantor located to the North (of #820 and 812).” [92] In the #820 easement, Archie did the next best thing by allowing the Grantee the right to “pass over” Archie’s remaining property presumably to get to the pond. For ease of reference, I will repeat the exact wording of the #820 easement: Together with a right-of-way in common with the Grantor and in common with other persons given a similar right to pass over the lands of the Grantor located to the North the lands herein described, which lands are bounded on the North by the shores of Benacadie Pond and lie to the North of the highway referred to above. [93] Note that Archie does not say directly that the Grantee can “pass over” his land to get to the pond but that is his obvious intent. Nor does he specify exactly where the pond can be accessed. But he does say that the right-of-way is “in common with the Grantor and in common with other persons given a similar right.” [94] At that stage, the only other person with a written easement was Earl Currie the Grantee in 1969. I am satisfied that “other persons” would include members of Earl Currie’s family and his invited guests, or “other persons” might refer to others to whom Archie had verbally given permission to cross his property. For ease of reference, I repeat Currie’s (#770’s) easement: Together with the use in common of a right-0f-way with rights of ingress and egress to the Benacadie Pond over the Old Benacadie Road. [95] By 1969, I am satisfied that the pathway to the Point was well established [see for example Dan’s Affidavit para.35(h)]. The pathway is almost directly in front of #770. The pathway leads to the only desirable beach and swimming area in the vicinity. There is no other logical conclusion but that Archie intended to give Currie (and thus his present successor-in-title, Tim) an easement to use the path to the Point. Implicit with that easement is the right to use the Point for swimming and normal beach activities. This also applies to the prescriptive easements I have already found to exist. [96] In view of the foregoing, the only most likely interpretation of the #820 easement is that Archie intended to give the Grantee (Rostek) the right to pass over Archie’s remaining property (which is north of what he had deeded to Rostek) to access the Old Benacadie Road. Rostek (and his successor Dan) could then proceed south (a very short walk) along the old road to the pathway and thence to the Point. [97] Surveyor Attwood and the Deeded Easements: The #812 easement reads as follows: Together with a right-of-way in common with others, 10’ wide over lands of Archie MacDonald running from the said Castle Bay – Pipe Cove Highway to the Shores of Benacadie Pond and being the North Easter 10’ of the lands owned by Archie MacDonald and lying to the southwest lands owned by John Butch MacNeil. [98] The Respondents called surveyor David Attwood (“Attwood”) whose revised plan is dated October 15, 2012 (Terry Ex.D). Attwood did his field survey between May 14 and July 3, 2009. On Detail A of the plan, Attwood shows the location of the #812 easement. The Applicants acknowledge that the #812 easement can be plotted as Attwood has done. They disagree that this location is reflective of Archie’s intention in the context of all the evidence. [99] On April 30, 2014, I spent approximately 1.5 hours on the Applicants’ and Respondents’ properties. During the view, one of the places I took particular note of was the alleged 10 foot right-of-way depicted in Detail A of the Attwood plan. I believe both parties would agree that there is no indication that this ROW was ever used. In its present state, it is unusable (and unrecognizable as a pathway) as it proceeds along a ditched area interrupted by various growths of bushes and large, loose rocks. Respondents’ Counsel, during final submissions, indicated that, if I accept the location as that of the #812 easement, the Respondents would undertake to make the ROW passable. [100] As well, the record of this proceeding will not disclose any evidence that anyone ever used this ROW. The reason is obvious. The ROW accesses Benacadie Pond in an area totally unsuited for swimming or beach activity. I suppose one could build a wharf (if a Natural Resources permit is obtained) but that would be inconsistent with “… a right-of-way in common with others …”. [101] Further, there is no beach area between the small embankment and the edge of the water. The tidal fluctuation in the area is minimal (Counsel agreed – less than 10 inches), so it is not a question of my having viewed the area at high tide. It is therefore not possible to use the ROW to access a shore where one could then walk southward several hundred feet to the Point. One would have to go out in the water and walk to the Point. [102] Despite the wording of the written easement, it is inconceivable that this is the ROW Archie intended. The Respondents attempted to introduce hearsay evidence through Erma on this issue. In para.36 of her affidavit, Erma says that Archie showed her and her father the location of the ROW he had given to various other landowners. In para.37, she references detail A in the Attwood plan as being the location Archie showed her. [103] Here, Erma’s evidence illustrates two points: (a) why inadmissible hearsay should be jettisoned and (b) why Erma’s evidence is not credible. Unless she was shown the Attwood survey pins, neither Erma nor anyone else would be able to identify that specific area as a ROW location. Furthermore, Erma’s father died on May 30, 1980 (Erma para.58). Erma is therefore claiming to have a vivid recollection of an innocuous non-event that occurred over 30 years ago. I do not believe her. (Not surprisingly, Terry gives the same evidence in paras. 70 and 71 about Archie pointing the ROW out to Butch and Terry.) [104] Attwood gave expert opinion evidence that all three deeded easements refer to the same ROW depicted in Detail A of his plan. He threads together the wording in #812: “… in common with others …” with that in #820: “… in common with other persons given a similar right …” and that in #770: “… the use in common …”. He says the wording in #820 and #770 appear to be referencing the 10 foot right-of-way in #812. [105] Of course, the #812 easement was not in existence when the #770 and #820 easements were written (#812 in 1973; #770 in 1969; and #820 in 1972). Attwood was cross-examined on that point but said it did not change his opinion. [106] Attwood’s literal interpretation has some initial attraction. However, Attwood does not account for the use of the words “in common” in the #770 easement, at the time that easement was written. Attwood uses that wording to tie this easement to the two later written easements. Clearly, when the #770 easement was written in 1969, “in common” had to refer to persons then using a right-of-way without written permission as there were no other written ROWs until three years later. The only ROW (unwritten) in use in 1969 was the pathway to the Point. “In common” therefore refers to the use of that pathway. [107] The #770 and #820 easements refer to the pathway to the Point. The wording of the #812 easement is inexplicable. One possibility is that there could have been a miscommunication between Archie and the person who drafted the easement. In any event, I am sure that in 1973, Archie did not intend to give John O’Brien a dead-end access to Benacadie Pond while giving others access to the Point. As with the #820 easement, I am satisfied that the #812 easement gave John O’Brien (and therefore Dan/Gale) an easement over #318 to the Old Benacadie Road, and from there via the pathway to the Point. [108] In interpreting the three ROWs, I have kept in mind the principles of easement reviewed by Rosinski, J. in Shea v. Bowser, 2011 N.S.S.C. 450 citing The Law of Real Property by Anger and Honsberger: The nature and extent of the right-of-way created by an express grant depends on the proper construction of the language of the instrument creating it [citing Knock v. Fouillard 2007 NSCA 27 (2007) 252 NSR (2d) 298 (CA)]. The following rules apply in interpreting the instrument: 1. The grant must be construed in the light of the situation of the property and surrounding circumstances, in order to ascertain and give effect to the intention of the parties. 2. If the language of the grant is clear and free from doubt, such language is not the subject of interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant. 3. The past behaviour of the parties in connection with the use of the right-of-way may be regarded as a practical construction of the use of the way. 4. In case of doubt, construction should be in favour of the grantee. While Shea v. Bowser was overturned (2013 NSCA 18) these principles were not disturbed. [109] In interpreting the #812 easement, I have undoubtedly tortured the second principle. But, in this particular circumstance, I suggest that that principle has been subsumed by due attention to the other three principles. In practical terms, it probably does not matter since Dan already has his right-of-way courtesy of the #820 easement, as well as his prescriptive easement across Tim’s cottage property. [110] Dan should probably forego the right his #812 and #820 easements give him to cross what is now Terry’s #318 property. Should Dan wish to use those easements, he can simply access the old road where its northern end intersects the new highway and proceed southward to the pathway. In the interests of peace, that would be my recommendation. III. The Events of 1990 – 2013 [111] In addition to seeking confirmation of the existence and scope of their easements, the Applicants are also seeking an injunction and an order against the Respondents in nuisance. It is therefore necessary for me to examine the evidence of what occurred between 1990 and 2013. [112] Archie died in 1990 leaving the Property to his niece, Bernadette. Bernadette lived in Ontario but did visit the property on at least three occasions, 1993, 1995 and 2009. [113] The 1993 Confrontation: There is some evidence of friction between Terry and Tim after their mother’s death in 1989. The Butch property was left to all four siblings and that caused some tension. The ball really started rolling in 1993 when Tim started clearing land (#770) in preparation for the building of his cottage. It is clear from the aerial photos that Tim’s clearing significantly encroached on the Property just south of the pathway to the Point. [114] When Bernadette saw what had been done, she was understandably upset. Bernadette heard that “one of the twins” was responsible and went to see Terry. This was Terry’s first meeting with Bernadette. He told her that the clearing had been done by Tim. Bernadette went to Tim’s house that night to confront him. [115] Tim’s evidence about this meeting is not credible. Tim insists that Bernadette was upset about the placement of his survey pins on the eastern side of the old road. He minimizes any alleged encroachment on the Heinekamp property and insists that that was not what she was upset about. I am satisfied that Tim is not being forthright. I am satisfied that Bernadette probably warned him to stay off her property, that is, that she would not tolerate any further encroachment. [116] On the other hand, I am satisfied that Bernadette did not tell Tim to stop using the pathway or that, if there was further encroachment, she would withdraw her permission for Tim to use the pathway. That is what the Respondents appeared to be urging me to find. If so, there is no evidence to support their position and lots of evidence to support the opposite conclusion. Tim continued to use the pathway with no evidence of interruption by or on behalf of Bernadette until 2000 at the earliest. [117] The momentous outcome of this 1993 confrontation was Bernadette’s ever-lasting dislike of Tim and the beginning of her enduring faith and trust in Terry. [118] “Behind My Back” Offers: It would appear that the die was irrevocably cast two years later when, in 1995, Terry offered Bernadette $35,000.00 to buy her property. She declined. Terry told Tim of the declined offer. Terry says that, afterward, Bernadette told him that Tim had offered her $50,000.00 (denied by Tim). Terry says he could not believe Tim would go “behind my back” and that relations between them have been strained ever since. [119] Tim does admit that he offered Bernadette $75,000.00 in 2005 and $100,000.00 in 2012. Both offers were declined. In cross-examination, Tim says that relations were so bad between he and Terry by 2005, he would have paid any amount “to be rid of him.” [120] The Culverts: In the summer of 1998, Terry discovered that culverts had been dug out of the old roadway, thus preventing anyone from using the roadway. In the early 1970’s, a new roadway had been constructed. Tim’s Exhibit F is a 1975 aerial photo of the area in which both the new and old highway can be seen. The Property is that running between the western (left) side of the Old Highway and the eastern shore of Benacadie Pond. The construction of the new highway meant that the only access to the Property from the new highway was via the old road. The excavation of the culverts effectively blocked that access. [121] Terry did not say it directly, but he obviously suspected Tim was the culprit. Tim had both the means and the motive. In any event, Terry dutifully advised Bernadette and also the Department of Transportation. Needless to say, this incident did not endear Tim to Bernadette but Terry’s stocks certainly went up. [122] In July 2000, Bernadette sent Terry the following notice for delivery to the Applicants: I, Bernadette Heinekamp hereby give Terry McNeil the temporary right to oversee the care and maintenance to the property and road access of the land at Benacadie Pond. Mr. Terry McNeil may also reserve the right to say who may or may not use the land at anytime until further notice from the Land Owner. The Land Owner reserves the right to revoke these rights given to Terry McNeil at anytime. The Land Owner reserves all rights and matters concerning the sale and final say concerning the property. (signed) Bernadette Heinekamp July 3, 2000 Bernadette Heinekamp Land Owner of Land at Benacadie Pond For any inquiries call (416) 267-2912 [123] The Bakers acknowledge its receipt (para.76). The others do not recall getting a copy but acknowledge awareness of its contents. There is no evidence that Terry did anything between 2000-2006 to interrupt use of the pathway. [124] The Whirlybird: In 2002, there was a major confrontation between Tim and Terry about a piece of playground equipment (the “whirlybird”) that Tim had placed on the old road. This is the first clear demonstration of the fact that, by 2002, Terry had lost all perspective. By now Terry relished his role as the protector of Bernadette’s property and would use any opportunity to get the upper hand on Tim. It is difficult not to suspect that Terry’s devotion to Bernadette had a lot to do with his own interests. As he bragged to his sister Thelma in an angry June 22, 2010 email referencing his easement from Bernadette: “… my family has something no one else does, a deed to the Point and the shoreline …” (see Ex.25). [125] In her rebuttal affidavit, Thelma describes the moment “when Terry saw the whirly-bird” (he blew up in anger (literally shaking). He told Anne to “get those kids back in the truck, we are leaving right now!” [126] The whirlybird had been placed off centre on the old road in front of Tim’s cottage property near his boundary with the Baker property. As such, its obstruction of Bernadette’s access was minimal to none. The only person who could take issue with it was Terry. I have no doubt but that Terry would have exaggerated its impact to Bernadette. Terry reported the matter to the then area manager of the Department of Transportation. That person, demonstrating some common sense, saw it as no big deal. Five years later, there was a new district manager. Terry got his way. On May 18, 2007, the Department ordered the whirlybird removed (Terry Ex.60). [127] The 2006 Eruption: In 2005, Tim constructed a stick wharf on the Point. Tim moored his boat on one side; Russell had his boat on the other side (Terry para.97). Terry reported the matter to Bernadette. The following spring, June 2006, Bernadette had Terry serve the following notice on the Applicants: June 28, 2006 To whom it may concern, I want the land that belongs to me going back to SWIMMING ONLY, NO BOATS! At the end of the summer please remove all things from the beach including the raft and put it on your own land. Please stop removing sand from the beach. I have asked Terry MacNeil if he would see that this is carried out. I hope thin(gs) will change in the future. Have a great summer. Thank you, Bernadette Heinekamp (signed) Bernadette Heinekamp [128] Terry caused a major ruckus one afternoon when he attempted to serve Sheila and Jennifer who were seated on Jennifer’s deck. Tim had no right to install the wharf the previous season without Bernadette’s permission (not to mention a government permit) but Terry’s reaction was highly disproportionate. By now, Terry’s behavior resembled that of a schoolyard bully. Terry is an intense, tightly-wound physically-imposing individual who, in full flight, must be very intimidating. I am satisfied that he could have found a less-confrontational method of getting the notices to the Applicants. [129] After that encounter, Tim said the Applicants were in panic mode. It was then that they sent the following to Bernadette (Dan and Gale are not signatories): We, the undersigned, our heirs, executors, administrators, successors and assigns, hereby certify that we have not and will not be making a claim against the lands of Bernadette Heinekamp, situate at Benacadie Pond, Cape Breton County, Nova Scotia, under the Grandfather Clause or Squatters’ Rights. (signed) Tim MacNeil Virginia MacNeil Russell Baker Jennifer Baker Gordon MacNeil Sheila MacNeil [130] I am satisfied that this was a genuine, if poorly worded, attempt by the Applicants to keep the peace or, as Tim put it, “to get us through the season.” [131] Also, in the summer of 2006, Terry, on Bernadette’s behalf, posted private property signs on the Heinekamp property facing the Applicants’ properties. The signs were later removed by persons unknown. [132] On April 9, 2008, Bernadette’s lawyer sent a letter to the Applicants which read in part: This is to confirm that I have been retained by Ms. Bernadette Heinekamp with respect to property at Benacadie N.S. which is more particularly described as PID No. 15590326 (highlighted yellow on attached property online map). Consistent with my clients ownership of the property in question any unauthorized entry upon the land or possession of the same is unacceptable. In this regard any acts of possession or control over the property included but not limited to cutting down trees, excavating, cutting of grass, depositing of any personal property on her property will not be tolerated. My client is prepared to continue to permit you walking access to the beach for the sole purpose of swimming. It must be appreciated however, that Mrs. Heinekamp’s position in this regard is discretionary and she reserves the right to withdraw this permission at any time. [133] Opening the Old Road: In January 2009, Terry and Bernadette applied to the Department of Transportation to open the old roadway. This was reasonable since, as mentioned, the old road provided the only access to the Heinekamp property from the new road. As well, it gave Terry another access to his properties on the old road (he already had access from the new highway). On June 7, 2010, Transportation issued the permit. [134] Terry carried out the necessary upgrading work which included some ditching and backfilling. Without getting into unnecessary detail, I am satisfied that Terry had the ditching done deeper than was necessary, especially in front of Tim’s property. This resulted in predictable confrontation between Terry and Tim. Without a permit, Tim tried to install his own drainage. After Terry’s report, Transportation staff stopped Tim and did some remedial drainage work themselves. Then Tim got his own permit to ameliorate the slope from the side of the old road to the path. [135] In short, I am satisfied that Terry used his permit to cause as much aggravation as he could for the Applicants. In October, 2010, Transportation confirmed that the permitted work had been satisfactorily completed. Terry had spent $20,000.00 but reaped a huge benefit. Bernadette gave him an easement over her property to the Point (Terry Ex.11). Terry also testified that Bernadette told him he would have first chance to buy the property if she ever decided to sell it. [136] The Trailer Pad: The most egregious manoeuvre by Terry involved his construction of a trailer pad at the entrance to the pathway. Terry innocently explains that this was all with Bernadette’s approval. I have no doubt that this and other provocative acts carried out by Terry were also inspired and instigated by Terry. Bernadette probably went along with Terry based upon his undoubtedly distorted account of what the Applicants were up to. [137] The trailer pad would have seen a trailer parked directly in front of Tim’s cottage. It would also have made access to and from the pathway decidedly uncomfortable for all the Applicants. In July 2011, Terry advertised the site for rent on Kijiji. Fortunately, there were no takers. In cross-examination, Terry stated that the purpose was to show the Applicants who was in charge. In the meantime, Terry was careful to look out for Terry. He cut a second pathway to the Point (with Bernadette’s approval) so the installation of a trailer would therefore not have affected Terry. [138] Around this time, Terry also planted a line of saplings for the stated purpose of re-establishing the tree line Tim had removed almost 20 years earlier. He also planted saplings on the pathway (guarded by mounds of rocks) to re-establish the pathway to its original width. Of course, this was all done with Bernadette’s approval. Again, I have no doubt that Terry’s primary objective was to irritate the Applicants, in particular, his brother Tim. [139] Tim Shares the Blame: Tim has to share a good measure of the blame for the escalation of the conflict in this case. As noted, he started in 1993 with indiscriminate bulldozing over the Heinekamp property line. I am also satisfied that it was probably Tim who in 1998 dug up the culverts in the Old Road. (Incidentally, Gordon and Sheila did some unauthorized drainage excavation on the Old Road in 1995 that drew the ire of both Terry and Bernadette.) I am satisfied that it was Tim who gradually and wrongly widened the pathway so he could drive a machine to the water (for example, to launch the swimming raft). As noted, he also built a stick wharf at the Point without permission from anyone. [140] In 2012, Tim placed a large metal lift wharf on the Point (see Photo – Terry Ex.30). Tim had to know, given all that had gone on in the previous decade, that this was tantamount to a declaration of war. In any event, it was not long after that that the lawyers got involved and the lines were drawn. In May of 2013, Terry erected a gate at the entrance to the pathway. The gate was promptly destroyed by persons unknown. Terry replaced the gate with a large trailer chained to a tree. [141] In August 2013, the present application came before the Court. IV. Scope of the Easements: [142] In Viehbeck v. Pook, 2012 NSSC 48, the Court considered whether an express grant of easement allowed for use of same by motor vehicles. The area at issue was a 20 foot-wide road to a beach. Moir, J. ultimately held the grant did contemplate use by motor vehicles. In the course of his decision, he commented on the principles to be used in determining the scope of easement created by express grant. At paragraphs 71-79, he stated as follows: [71] The determination of the scope of an easement created by express grant will start with a consideration of the words used in the deed of grant; however, the analysis will frequently not end at that point unless those words expressly address the point in issue. It is frequently necessary to consider the circumstances surrounding the grant in order to ascertain the intention of the parties. … [79] …the nature of the use that can be made of a right-of-way starts with a consideration of the express language of the grant. If that inquiry does not satisfactorily resolve the question before the court then it is necessary to look further. This can include a consideration of the historic use of the easement, the physical conditions which existed at the time of the grant, the purpose for which the easement was granted and the subsequent conduct of the parties. (Emphasis added) [143] Viehbek was concerned with the interpretation of the scope of a written easement. But the approach to interpreting an unclear written easement and an unwritten prescriptive easement would obviously overlap. [144] In this case, the purpose and mode of use of both the deeded and prescriptive easements is the same. I am satisfied all Archie ever intended was that the deeded easements provide a walking path to the Point. Similarly, I am satisfied on the evidence that the prescriptive easements established only a walking path to the Point. Archie’s acquiescence undoubtedly would have come to a sudden halt if anyone had tried to widen the path to make it passable for vehicles. [145] Injunction: Both sides need restraint: The Applicants have asked for an injunction against activities to block or impede their easements. I am satisfied that an injunction is neither necessary nor appropriate. As I note below under Nuisance, Terry’s conduct was motivated by his genuine belief that he had a legal right to do what he did. Now that he knows that the Applicants have legally recognized easements, I am confident that he will refrain from disruptive conduct in the future. If I am wrong, there are other ways to hold him legally accountable. [146] As I have explained, the fault was not all Terry’s. Tim’s unauthorized expansion of the pathway and use of the Point were major contributing factors to this conflict. That being said, I am satisfied that clearly defined rules to be incorporated in the final Order, and applicable to both sides in this dispute, is the way to go. Hopefully, these rules will reduce the possibility for future conflict: - The pathway should be clearly defined – i.e. Respondents may insert posts perpendicular to path no higher than 6 feet (pressure treated 4x4 or 6x6) – so that vehicles wider than 4 feet cannot get through. (Cannot be done between June 15 and September 15 of any year.) - Repondents may also put in two straight lines of posts – one line on each side of and parallel to path – so that 4 foot pathway remains clearly defined – installation and associated preparation (e.g. digging post holes) (cannot be done between June 15 and September 15 of any year). - Parties (excluding Tim and Terry) may keep grass mowed in pathway; lawnmower to be only machine permitted on pathway or Point. - Placement of raft – subject to Department of Natural Resources permit – but cannot be launched via pathway or stored at Point; and must be moored at least 70 feet from the Point. - Usable area of Point to be defined at Applicants’ expense in accordance with Pope plan dated July 8, 2000 (approx.. 90x150 feet). - Point can be used for all normal beach activities including (and without restricting generality of foregoing) swimming; sunbathing; lawn chairs, loungers, etc. permitted but must be removed each day; all garbage to be removed daily. - Bonfires/campfires not permitted; no overnight camping – no wharves or boat lifts within 150 feet of defined Point area. - Boats, jet skis, or other watercraft can land but not be beached for more than 2 hours in any 24 hour period, and only in area which is minimally intrusive to others using Point. - The Applicants and Respondents, their families, and invited guests may use and access the Point. No number limit on such use. No one has the right to police such use. - Nuisance – I recommend that the Department of Transportation advise that the old road may only be graded once in the spring (before June 15) and once in the fall (after September 15) of each year. - The Respondents will not attempt to re-establish a tree line or place any other visual obstruction on the Applicant Timothy MacNeil’s view plane. - Nothing in this decision affects the rights of First Nations people to use the area as they have traditionally done. [147] I invite Counsel to suggest clarification of these conditions or suggest further conditions for consideration. These comments may accompany their briefs on costs scheduled below. I would like to encourage Counsel to try to get an agreed set of rules to govern both parties’ future use of the Point. [148] No Easement for Public at Large: I would confirm that, as I indicated during final submissions, I am not satisfied that the evidence establishes a prescriptive easement for access to the Point by the general public. While there is some evidence of occasional use by the public, it falls short of meeting the 20 year open, notorious and continuous requirement. V. Nuisance: [149] I am dismissing this claim. Terry’s actions were disproportionate and undoubtedly upsetting for the Applicants. His actions were substantial and unreasonable. However, I am satisfied that Terry believed he had a legal right to do what he did. I am satisfied that between 2000 and 2012 he had the owner’s (Bernadette’s) approval for all his actions. I have my doubts about his methods of obtaining that approval (I referenced them elsewhere), but I do not doubt that he had it. [150] Although I have found that the easements had crystallized before the alleged nuisance, that fact was not clear to any of the parties. With regard to the deeded easements, Tim (or Dan) had no certainty that those easements applied to the pathway. Terry had reason to believe otherwise, especially after Attwood came on the scene in 2009. [151] If Terry were to repeat such actions (or any acts of nuisance) now that the easements have been defined, he could be held to account in a contempt or nuisance action. Terry’s over-reaction to Tim’s ill-considered actions spawned this litigation. For that Terry will shoulder additional legal costs. He will also live with the consequences of losing the case I am sure he was convinced he would win. Hopefully, all parties will now have the good sense to adopt a “live and let live” attitude toward their neighbors. VI. The Registrar General, Land Titles (“Registrar”): [152] I granted the Registrar intervenor status in this matter. Accordingly, the final Order in this matter should contain a clause requiring the Applicants to take appropriate measures under the Land Registration Act to correct the Parcel Register. VII. Costs: [153] Terry (Anne) and Tim (Virginia) will each have to pay their own legal bills. The other Applicants were unavoidably drawn into the battle between the two brothers. They had no choice but to get involved in this lawsuit. While they did not get everything they sought, they are successful litigants. As such, they are entitled to their costs from the Respondents with reasonable disbursements to be taxed by me. [154] I therefore need to know what legal fees each of the Applicants incurred. (I will treat each husband/wife duo as one unit.) If the arrangement was that they would split the total legal bill four ways, I need to know the total (I want an itemized copy of the bill). If each unit was to be billed separately, I need to see the legal bill for each unit (including Tim/Virginia’s). [155] On that basis, I am inviting Applicants’ Counsel to make a written submission on costs (party/party) within 10 days of receipt of this decision. Respondents’ Counsel will reply in writing in 7 days after receipt of the Applicants’ submission. The Applicants can make a brief written response within 3 days of receipt of the Respondents’ submission. Edwards, J.