Chisholm v. Snyder, (2014) 341 N.S.R.(2d) 141 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 22, 2013
• Jurisdiction: Nova Scotia
• Citations: (2014), 341 N.S.R.(2d) 141 (SC);2014 NSSC 36

Chisholm v. Snyder (2014), 341 N.S.R.(2d) 141 (SC);

    1081 A.P.R. 141

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. FE.006

William Patrick Chisholm (applicant) v. Glenn Douglas Snyder and Thelma E. Snyder (respondents)

(ANT. No. 405943; 2014 NSSC 36)

Indexed As: Chisholm v. Snyder

Nova Scotia Supreme Court

Stewart, J.

January 29, 2014.

Summary:

This application involved 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' 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 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.

Deeds and Documents - Topic 2706

Operation and interpretation - Reservations and exceptions - In deeds - This application involved 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' (the Snyders') predecessor in title - 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 held that "... the reservation ... reserves to Chisholm a right, in the nature of a profit à prendre, to enter from time to time upon the lands which were conveyed in the deed and to remove the hay or crops by mowing or harvesting, and to take it away and to improve the land. The extent of the right is addressed in the references to heirs and assigns, and the registration of the deed. A profit à prendre, as an incorporeal hereditament, runs with the servient land. It can be registered on the title under the land registration system. When registered, the profit runs with the land, and when the land is sold, the profit is transferred to the new landowner along with the title to the land. It gives Chisholm the right to enter the Snyders' land and take hay or crops from the land. Subject matters that are part of the land and capable of being owned. Although a profit is an interest in land, no specific property in the profit is given until it is taken. Therefore it is presumptively not exclusive to Chisholm, and no such intention is expressly stated. Chisholm's right is limited by the seasons, and only limited in the taking by the number of cuts capable per growing period. A profit can be for any length of time. It terminates at the end of the specified term if such appears in the deed; by surrender or merger, or when a court orders it terminated. None of these circumstances exist here." - See paragraphs 24 to 26.

Deeds and Documents - Topic 2706

Operation and interpretation - Reservations and exceptions - In deeds - This application involved 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' 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 issues as argued by the applicant were: (1) the nature of the reservation in the deed and whether it remained extant; (2) whether there was any basis for determining that it had expired or was limited in any way; and (3) the appropriate disposition - The respondents sought dismissal of the "void or voidable" "condition" given that (a) it was inconsistent and repugnant to the estate in fee simple created by the deed; (b) from inception it did not contain a time for termination; and (c) a reasonable amount of time had elapsed since its creation - They argued that it reflected a hay lease or licence revocable at will - Alternatively, 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 - Further, it did not confer an exclusive right on Chisholm to cut hay or other crops or improve the lands - They submitted that any rational interpretation would permit them to construct a family residence, shops, and a septic bed on the property, given that, when it was granted to Ida Durant, a dwelling existed on the property - Finally, they argued that, if the "restriction" was upheld, relief should be in the form of damages, not specific performance - The Nova Scotia Supreme Court held that the reservation stood and was neither voided nor terminated - As for rejecting Chisholm's application because the right was incapable of judicial control, many interests in land, such as easements, involved parties having to accommodate and cooperate with each other - The same was true here - The court granted an order providing for a declaration in the nature of a profit à prendre - See paragraphs 1 to 34.

Real Property - Topic 7260

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

Real Property - Topic 7262

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

Real Property - Topic 7263

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

Real Property - Topic 7264

Easements, licences and prescriptive rights - Profits à prendre - Ownership of subject matter of right - [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 ].

Real Property - Topic 7265

Easements - Licences and prescriptive rights - Profits à prendre - Termination (incl. revocation) - This application involved 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' (the Snyders') predecessor in title - 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 Snyders argued, inter alia, 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 Nova Scotia Supreme Court rejected the argument - The court stated that "Here, the language of the reservation does not state a purpose for removing the hay that would indicate appurtenancy to a dominant tenement, and no specific words limit what use can be made of the removed hay. The Chisholms, as owners of the profit both then and now, retained ownership interest in the abutting land, originally using the grant for hay for cattle fodder, as well as selling it as one would do with timber. If appurtenancy can be read into the reservation and if the benefit to the land of the owner of the profit is meant to include the use made of the land, i.e. wintering cattle in a barn, then both the barn and the cattle are gone. However, the hay continues to be sold. Chisholm and his predecessors never ceased getting the benefit of their right, and he continued by leasing his interest to Macintosh. If the profit appurtenant has been extinguished by the permanent alteration of the Chisholm tenement, since it is no longer a cattle farm, then removal of the hay is still held as a right in gross, unaffected by such circumstances. It is a right exercisable by Chisholm, the owner of it independently of his ownership of any land. The reservation is not rendered void or the profit extinguished due to alteration to the Chisholm lot." - See paragraphs 27 and 28.

Real Property - Topic 7266

Easements - Licences and prescriptive rights - Profits à prendre - Extent of - This application involved 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' (the Snyders') predecessor in title - 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 held that the reservation was a valid profit à prendre - The court held that, in practical terms, the right claimed by Chisholm was a substantial interference with the use of the land by the Snyders - The court determined what the reasonable ordinary use of the Synders' land as a residential or home property would be; an area that was both functional and recreational, with reservation rights not interfering with its permanency - See paragraphs 29 to 33.

Sale of Land - Topic 7408

Remedies - General - Specific performance - When available - [See second Deeds and Documents - Topic 2706 ].

Cases Noticed:

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, refd to. [para. 14].

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. 15].

Manitoba v. Senick (1982), 17 Man.R.(2d) 257 (C.A.), refd to. [para. 16].

Duke of Sutherland v. Heathcote, [1821] 1 Ch. 475, refd to. [para. 17].

Saulnier (Bankrupt), Re, [2008] 3 S.C.R. 166; 381 N.R. 1; 271 N.S.R.(2d) 1; 867 A.P.R. 1; 2008 SCC 58, refd to. [para. 19].

Malcolm, Re, [1947] O.J. No. 590, refd to. [para. 20].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 21].

Polstra v. Pierlot Family Farm Ltd. (2003), 227 Nfld. & P.E.I.R. 84; 677 A.P.R. 84; 2003 PESCAD 23, refd to. [para. 23].

Stephens v. Gulf Oil Canada Ltd. (1975), 11 O.R.(2d) 129 (C.A.), dist. [para. 23].

Imperial Oil Ltd. v. Young et al. (1998), 167 Nfld. & P.E.I.R. 280; 513 A.P.R. 280 (Nfld. C.A.), refd to. [para. 24].

Cameron v. Silverglen Farms Ltd. and George (1983), 58 N.S.R.(2d) 31; 123 A.P.R. 31 (C.A.), refd to. [para. 24].

Cherry v. Petch, [1948] O.W.N. 378, refd to. [para. 25].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006), pp. 8 to 10 [para. 20]; 17 to 29 [para. 29].

Leake, Stephen Martin, Digest of the Law of Uses and Profits of Land (1888), pp. 44 [para. 18]; 328 [para. 27]; 331 [paras. 17, 18]; 332 [para. 17]; 346 [para. 17]; 348 [para. 18]; 356, 357 [para. 27].

Meggary and Wade, The Law of Real Property (4th Ed.), p. 779 [para. 16].

Oppe, A.S., Wharton 's Law Lexicon (14th Ed. 1953), p. 467 [para. 19].

Counsel:

Donald Macdonald, for the applicant;

Daniel J. Macisaac, for the respondents.

This application was heard on July 22, 2013, by Stewart, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 29, 2014.