Mason v. Morrow

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Citation: (1998), 114 O.A.C. 194 (CA)
• Date: 11 June 1998

Mason v. Morrow (1998), 114 O.A.C. 194 (CA)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JL.035

Leon David Mason (plaintiff/appellant) v. Daniel Wayne Morrow and Lynn Morrow (defendants/respondents)

(C25139)

Indexed As: Mason v. Morrow

Ontario Court of Appeal

Carthy, Labrosse, JJ.A., and Cullity, J.(ad hoc)

June 26, 1998.

Summary:

In 1957, certain lands were conveyed by deed. However, the deed contained a reser­vation for the Westerly 40 feet of the said lands between the road and the river. No plan of survey accompanied the deed. Forty years later, the successors in title were involved in a dispute as to the location of the boundary line between the properties for the portion of the land between the road and the river.

The Ontario Court (General Division), in a decision reported 6 O.T.C. 142, determined the location of the common boundary. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Real Property - Topic 7058

Easements, licences and prescriptive rights - Creation by prescription - Acts of use and enjoyment - The Ontario Court of Appeal affirmed that a plaintiff had not acquired a prescriptive right to use stairs located on the defendant's property - While the evidence was adequate to estab­lish 20 years' uninterrupted use to the owner's knowledge, it was insufficient to prove use "as of right", namely, use from which a reasonable person would infer that a right was being claimed or asserted - User permitted through good-neighbourli­ness, and enjoyed on that basis, was insuf­ficient to acquire an easement by prescrip­tion - See paragraphs 5, 6.

Real Property - Topic 7061

Easements, licences and prescriptive rights - Creation by prescription - Sufficiency of use - [See Real Property - Topic 7058 ].

Cases Noticed:

Henderson et al. v. Volk et al. (1982), 35 O.R.(2d) 379 (C.A.), refd to. [para. 5].

Counsel:

Harry R. Preston, for the appellant;

Colin E. Wright, for the respondent.

This appeal was heard on June 11, 1998, by Carthy, Labrosse, JJ.A., and Cullity, J.(ad hoc), of the Ontario Court of Appeal. The court released the following endorsement on June 26, 1998.