Blankstein and Fages v. Walsh, (1988) 55 Man.R.(2d) 125 (QB)

• Judge: Dureault, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 03, 1988
• Jurisdiction: Manitoba
• Citations: (1988), 55 Man.R.(2d) 125 (QB)

Blankstein v. Walsh (1988), 55 Man.R.(2d) 125 (QB)

MLB headnote and full text

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

(Suit No. 85-01-06609)

Indexed As: Blankstein and Fages v. Walsh

Manitoba Court of Queen's Bench

Winnipeg Centre

Dureault, J.

November 3, 1988.

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 dismissed the action.

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 - See paragraphs 27 to 28.

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 Queen's Bench held 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 reason able notice - See paragraphs 24 to 40.

Cases Noticed:

Stall and Stall v. Yarosz and Yarosz (1964), 47 W.W.R.(N.S.) 113 (Man. C.A.), refd to. [para. 24].

Capar v. Wasylowski and Wasylowski (1983), 21 Man.R.(2d) 194 (Q.B.), refd to. [para. 24].

Ellenborough Park, In re, [1956] 1 Ch. 131, refd to. [para. 27].

Manitoba, Province of v. Senick and Senick (1982), 17 Man.R.(2d) 257, refd to. [para. 32].

Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al. (1968), 69 D.L.R.(2d) 195, refd to. [para. 36].

Murray v. Sullivan (1981), 35 Nfld. & P.E.I.R. 132; 99 A.P.R. 132, refd to. [para. 38].

Statutes Noticed:

Prescription Act (1832), 2-3 Wm. 4, c. 71, sect. 2 [para. 25].

Authors and Works Noticed:

Jackson, The Law of Easement and Profits, p. 115 [para. 29].

Gale, The Law of Easements (14th Ed.), pp. 30 [para. 39]; 177 [para. 37].

Counsel:

Douglas N. Abra and R.A.L. Nugent, Q.C., for the plaintiffs;

David Hill, for the defendant.

This case was heard before Dureault, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 3, 1988: