Blankstein and Fages v. Walsh, (1989) 58 Man.R.(2d) 269 (CA)

• Judge: O'Sullivan, Twaddle and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 28, 1989
• Jurisdiction: Manitoba
• Citations: (1989), 58 Man.R.(2d) 269 (CA)

Blankstein v. Walsh (1989), 58 Man.R.(2d) 269 (CA)

MLB headnote and full text

Marjorie Blankstein, Melvin Sherwin Fages and Arlene Shirley Fages (plaintiffs/appellants) v. Meeka Walsh (defendant/respondent)

(Suit No. 46/89)

Indexed As: Blankstein and Fages v. Walsh

Manitoba Court of Appeal

O'Sullivan, Twaddle and Lyon, JJ.A.

April 28, 1989.

Summary:

For over 20 years, several summer cottage owners, or their predecessors in title, enjoyed the use of a neighbour's backyard as a right of way to the beach and as a playground. When a subsequent owner fenced off the area and denied them access, they brought an action, claiming an easement for a right of way over the land and an easement for the use of the land as a recreational area.

The Manitoba Court of Queen's Bench, in a decision reported 55 Man.R.(2d) 125, dismissed the action. The cottage owners appealed.

The Manitoba Court of Appeal dismissed the appeal.

Real Property - Topic 7003

Easements, licences and prescriptive rights - General principles - Uses which may constitute an easement - For over 20 years, several cottage owners used a neighbour's backyard as a common playground and access to the beach - The Manitoba Court of Queen's Bench stated that a right of way and use of property for recreational purposes could be easements - The Manitoba Court of Appeal affirmed the decision by dismissing an appeal by the cottage owners.

Real Property - Topic 7068

Easements, licences and prescriptive rights - Creation by prescription - Bars - Permission - For over 20 years, several cottage owners enjoyed "open, uninterrupted and unchallenged" use of a neighbour's backyard as a common playground and right of way to the beach - A subsequent owner fenced off the area and denied them access and use - The Manitoba Court of Appeal affirmed that there was no easement by prescription - There was a neighbourly act of allowing them the use of the property in common with the owner - This permission prevented the use from being converted into user "as of right" as required by the Prescription Act - The permission could be revoked at will upon reasonable notice.

Counsel:

R.A.L. Nugent, Q.C., for the appellants;

D.G. Hill, for the respondent.

This appeal was heard before O'Sullivan, Twaddle and Lyon, JJ.A., of the Manitoba Court of Appeal on April 28, 1989, when the following decision was delivered for the court by O'Sullivan, J.A.