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The court dismissed a summary-trial easement claim, holding the grant was a right of way for access and that the defendants’ works did not substantially interfere.
The court held that locked gates on a statutory right of way substantially interfered with TimberWest’s access and ordered 076 to keep them open as needed.
The court awarded damages for interference with an easement, including lost rental income and loss of amenity, and found the defendants’ conduct warranted special costs.
The court held that a 1940 12-foot right of way permitted vehicular and authorized tenant use, and granted declarations and an injunction against obstructions.
The appeal is dismissed because the trial judge's factual findings that the right-of-way was intended for pedestrian use and his assessments of damages are supported by the record and not vitiated by any palpable and overriding error; therefore appellate interference is not justified.
Source excerpt
The court found an express 30 foot right of way (easement) exists over Lot 1 along the entire southwestern boundary from Whynacht Point Road to the shore for the benefit of Lot 2 (not exclusive to Betts), the defendants substantially interfered with that easement by radical regrading and obstructions which made prior access impracticable, and accordingly plaintiffs are entitled to a permanent injunction, restoration of the right of way and damages; the defendants' counterclaim succeeded only to the extent of $100 for trespass by Mr. Betts.
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