Gormley v. Hoyt, (1982) 43 N.B.R.(2d) 75 (CA)

• Judge: Hughes, C.J.N.B., Ryan and Angers, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 15, 1982
• Jurisdiction: New Brunswick
• Citations: (1982), 43 N.B.R.(2d) 75 (CA)

Gormley v. Hoyt (1982), 43 N.B.R.(2d) 75 (CA);

    43 R.N.-B.(2e) 75; 113 A.P.R. 75

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Gormley v. Hoyt

(No. 120/82/CA)

Indexed As: Gormley v. Hoyt

Répertorié: Gormley v. Hoyt

New Brunswick Court of Appeal

Hughes, C.J.N.B., Ryan and Angers, JJ.A.

November 2, 1982.

Summary:

Résumé:

The plaintiff was granted, by deed, a right-of-way for access to his cottage lot. The defendant successor in title of the original grantor of the right-of-way removed earth and gravel from the road used by the plaintiff as the right-of-way, to construct a new access road. The plaintiff brought an action alleging that the defendant interfered with his use of the right-of-way. The plaintiff sought a declaration that he was "the owner of the right-of-way", as well as general and special damages, exemplary and punitive damages and an injunction to restrain the defendant from blocking his easement.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision unreported in this series of reports, held that the plaintiff was entitled to a declaratory order that he had a right-of-way over the defendant's land. The court further awarded $100.00 general damages for interference with the easement and ordered the defendant to restore the original right-of-way, failing which the plaintiff would be entitled to $7,500.00 general damages. The court further ordered that the plaintiff was entitled, upon obtaining the consent of the other cottage owners, to relocate the entrance to the road to cause it to run in a straight line.

The defendant appealed. The plaintiff cross-appealed against the Trial Division's refusal to award exemplary and punitive damages and solicitor and client costs.

The New Brunswick Court of Appeal allowed the appeal in part and dismissed the cross-appeal. The court re-assessed the award of damages and set aside that portion of the judgment calling for the construction of a straight right-of-way.

Real Property - Topic 7077

Easements, licences and prescriptive rights - Rights-of-way - Extent of - The New Brunswick Court of Appeal stated that a right-of-way did not convey ownership of the property over which the right-of-way passed but merely a right of passage over the property - See paragraph 12.

Real Property - Topic 7220

Easements, licences and prescriptive rights - Interference or obstruction - Interference with right-of-way - The New Brunswick Court of Appeal held that the owner of the freehold over which a right-of-way passes has no right to remove rock, gravel etc. from the property, if such removal made the roadway less convenient for the holders of the right-of-way - The court also held that the property owner cannot obstruct reasonable access to persons having the right-of-way - See paragraph 14.

Real Property - Topic 7225

Easements, licences and prescriptive rights - Interference or obstruction - Damages - The owner of the freehold over which a right-of-way passed interfered with the rights of the holders of the right-of-way by obstructing access to the right-of-way - The New Brunswick Court of Appeal held that the holder of the right-of-way was entitled to damages, being the cost of restoring the road to its former condition, not the costs of constructing a new road - The court further awarded $100.00 general damages to the holder of the right-of-way for interference - See paragraphs 15; 18 to 20.

Real Property - Topic 7292

Easements, licences and prescriptive rights - Extent of right granted - Maintenance of right-of-way - The New Brunswick Court of Appeal held that the owner of a right-of- way, in the absence of an agreement with the owner of the land over which it passes, has the burden of maintaining the right-of-way, which includes the right to enter upon the right-of-way for the purpose of making it effective - See paragraph 14.

Real Property - Topic 7293

Easements, licences and prescriptive rights - Extent of right granted - Right to construct a road or path - The New Brunswick Court of Appeal held that the owner of a right-of-way easement has the right to make a road - The court referred to the general rule that courts will not direct the building or repair of a road, because the court cannot supervise the work - See paragraphs 14; 16.

Real Property - Topic 7296

Easements, licences and prescriptive rights - Extent of right granted - Location of road or path - A trial judge held that one holder of a right-of-way was entitled to relocate a right-of-way to give him and other right-of-way holders a straight access to their cottages - The New Brunswick Court of Appeal held that the court had no power to order relocation, because it would involve expropriation or confiscation of land, which was beyond the powers of the court - See paragraph 16.

Cases Noticed:

Dalhousie Land Company Limited v. Bearce (1933), 6 M.P.R. 399, refd to. [para. 14].

Attorney-General v. Staffordshire County Council, [1905] 1 Ch. 336, refd to. [para. 16].

Counsel:

John D. Townsend, for the appellant;

George A. McAllister, for the respondent.

This appeal was heard before HUGHES, C.J.N.B., RYAN and ANGERS, JJ.A., of the New Brunswick Court of Appeal, on October 15, 1982. The decision of the Court of Appeal was delivered by HUGHES, C.J.N.B., on November 2, 1982.

Please note that a French translation appears below the English language judgment.