Chisholm v. Snyder, 2015 NSCA 39

• Judge: Oland, Hamilton and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 21, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 39;(2015), 358 N.S.R.(2d) 251 (CA)

Chisholm v. Snyder (2015), 358 N.S.R.(2d) 251 (CA);

    1131 A.P.R. 251

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.046

Glenn Douglas Snyder and Thelma E. Snyder (appellants) v. William Patrick Chisholm (respondent)

(CA 425004; 2015 NSCA 39)

Indexed As: Chisholm v. Snyder

Nova Scotia Court of Appeal

Oland, Hamilton and Beveridge, JJ.A.

April 24, 2015.

Summary:

William Chisholm applied for the interpretation of a reservation of a hay/crop right in favour of "Gordon Chisholm, his heirs and assigns" in a 1960 deed from Gordon Chisholm to the respondents' (Snyders') predecessor in title Ida Durant. Some 2.7 acres of Gordon Chisholm's 150-acre farm was conveyed, along with a 100-year old farm house and barn (or its foundation).

The Nova Scotia Supreme Court, in a decision reported at 341 N.S.R.(2d) 141; 1081 A.P.R. 141, held that the reservation stood and was neither voided nor terminated. The court determined the extent of the reservation based on reasonableness and granted an order providing for a declaration in the nature of a profit à prendre. The Snyders appealed.

The Nova Scotia Court of Appeal allowed the appeal, set aside the order below and ordered William Chisholm to pay the Snyders the costs he was awarded below, plus $4,000 costs, inclusive of disbursements, on the appeal.

Deeds and Documents - Topic 2706

Operation and interpretation - Reservations and exceptions - In deeds - In 1960, Gordon Chisholm conveyed some 2.7 acres of his 150 acre farm, along with a 100 year old farm house and barn (or its foundation) to Durant, the Snyders predecessor in title - The deed from Gordon Chisholm to Durant contained the following reservation "... Reserving to the Conveyors the right to pasture any number of cattle at all times in the field described in the Schedule hereto; subject to the exceptions and reservations, the lands are conveyed ..." - The reservation was not mentioned in the deeds by Gordon Chisholm or subsequent owners of the Chisholm property - The Snyders argued that if a right in the nature of a profit à prendre existed, then the purpose for its creation had expired, in that Gordon Chisholm had lived on the adjacent property when the "condition" was created and "the land or hay or pasture" was needed, but now the "condition" no longer benefited the dominant tenement - The trial judge held that the reservation stood and was neither voided nor terminated - The Snyders appealed - The Nova Scotia Court of Appeal allowed the appeal - "[T]he reservation cannot be a valid profit appurtenant. Such a profit must benefit the dominant tenement to which it is annexed, and must be limited, either to a specific quantity, or by the needs of the dominant tenement ... Here, the reservation does not contain any wording which limits the right to take hay from the Durant lot, which would be the servient land. A profit appurtenant without limit or stint is unknown to the law. Even if a limit could be implied, the evidence is that for decades the hay which has been taken off that property did not benefit the Chisholm property, the dominant tenement. Since the early 1970's, except for the two years after the Snyders purchased the Durant lot and the matter became contentious, William Chisholm [Gordon Chisholm's successor in title] either sold the hay or allowed Mr. MacIntosh, for an annual fee, to grow and harvest it. ... [T]he right must benefit the land which is the dominant tenement, and not just add to the pleasure or profit of the owner of that land." - See paragraphs 16 to 41.

Deeds and Documents - Topic 2706

Operation and interpretation - Reservations and exceptions - In deeds - In 1960, Gordon Chisholm conveyed some 2.7 acres of his 150 acre farm, along with a 100 year old farm house and barn (or its foundation) to Durant - The deed from Gordon Chisholm contained the following reservation "... Reserving to the Conveyors the right to pasture any number of cattle at all times in the field described in the Schedule hereto; subject to the exceptions and reservations, the lands are conveyed" - The reservation was not mentioned in the deeds by Gordon Chisholm or subsequent owners of the Chisholm property - The Nova Scotia Court of Appeal held that the reservation in the Durant deed created a profit in gross where it was a right without limit and separate from any land owned by the profit holder - Since a profit was an interest in land, it had to be conveyed by deed to satisfy the Statute of Frauds, but none of the 1972 and 1998 deeds in the chain of title of the Chisholm lands from Gordon Chisholm to William Chisholm conveyed the right to enter upon and remove hay from the Durant lot - The 1998 deed merely excluded that lot from the description of the Chisholm lands - Further, s. 13(d) of the Conveyancing Act was not triggered to convey the profit as the defining feature of a profit in gross was that it is not appurtenant to a dominant tenement - Thus, such a profit would have no connection to the Chisholm property - Moreover, if the right was a profit in gross, who was its owner? - If not disposed of earlier, a profit in gross would pass under a will or, if none, according to the laws of intestacy - As a result, were he still living, Gordon Chisholm would be the owner of any such profit; since he was not, it might continue to exist as part of Gordon Chisholm's estate - However, no evidence connected it to his nephew, William Chisholm - See paragraphs 43 to 47.

Real Property - Topic 7260

Easements, licences and prescriptive rights - Profits à prendre - General - [See first Deeds and Documents - Topic 2706 ].

Real Property - Topic 7260

Easements, licences and prescriptive rights - Profits à prendre - General - The Nova Scotia Court of Appeal discussed the nature of profits à prendre and how they were created - The court discussed the profit à prendre appurtenant and the profit à prendre in gross in particular - See paragraphs 18 to 31.

Real Property - Topic 7262

Easements, licences and prescriptive rights - Profits à prendre - What constitutes - [See second Deeds and Documents - Topic 2706 and second Deeds and Documents - Topic 7260 ].

Real Property - Topic 7263

Easements, licences and prescriptive rights - Profits à prendre - Interpretation of agreement - [See first Deeds and Documents - Topic 2706 ].

Real Property - Topic 7265

Easements - Licences and prescriptive rights - Profits à prendre - Termination (incl. revocation) - [See first Deeds and Documents - Topic 2706 ].

Cases Noticed:

Queen (B.C.) v. Tener - see Tener and Tener v. British Columbia.

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, refd to. [para. 12].

Chain Lakes Logging Corp. v. Abitibi-Price Inc. (2005), 245 Nfld. & P.E.I.R. 147; 730 A.P.R. 147; 2005 NLCA 13, refd to. [para. 12].

Manitoba v. Senick (1982), 17 Man.R.(2d) 257 (C.A.), refd to. [para. 12].

Duke of Sutherland v. Heathcote, [1821] 1 Ch. 475, refd to. [para. 12].

Harris v. Lord Chesterfield - see Harris v. Lord Chesterfield.

Harris v. Lord Chesterfield, [1911] A.C. 623 (H.L.), affd. [1911] A.C. 623 (H.L.), refd to. [para. 16].

Anderson v. Bostock, [1976] Ch. 312, refd to. [para. 16].

Bettison v. Langton, [2000] Ch. 54; [1999] 2 All E.R. 367 (C.A.), affd. [2001] 3 All E.R. 417; [2002] 1 A.C. 27 (H.L.), refd to. [paras. 16, 27].

Statutes Noticed:

Conveyancing Act, R.S.N.S. 1989, c. 97, sect. 13(d) [para. 45].

Authors and Works Noticed:

Burn, E.H., Cheshire and Burn's Modern Law of Real Property (15th Ed. 1994), pp. 520 [para. 23]; 562 to 568 [para. 16].

Gaunt, J.R., and Morgan, P., Gale on Easements (19th Ed. 2012), pp. 1-143 [para. 21]; 1-143 to 1-147 [para. 16]; 1-145 [para. 24].

Halsbury's Laws of England (4th Ed.), vol. 14, paras. 248 [para. 31]; 249 [para. 29].

La Forest, Anne Warner, Anger & Honsberger: Law of Real Property (3rd Ed. 2014) (Looseleaf, updated December 2014), vol. 2, §§ 17:20:10 [para. 22]; 17:30 [paras. 18, 21]; 17:30.10 [para. 19].

Leake, Stephen Martin, Digest of the Law of Uses and Profits of Land (1888), generally [para. 12].

Megarry and Wade, The Law of Real Property (8th Ed. 2012), pp. 27-055 to 27-069 [para. 16]; 27-065 [para. 21]; 29-007 to 29-014 [para. 16].

Sinclair, Alan M., and McCallum, Margaret E., An Introduction to Real Property Law (5th Ed. 2005), p. 58 [para. 23].

Counsel:

Hector J. MacIsaac, for the appellants;

Donald L. Macdonald, for the respondent.

This appeal was heard in Halifax, N.S., on January 21, 2015, by Oland, Hamilton and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. Oland, J.A., delivered the following decision for the court on April 24, 2015.