McCorquodale v. Baranti Dev., (2015) 369 B.C.A.C. 255 (CA)

• Judge: Donald, Harris and Goepel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 26, 2015
• Jurisdiction: British Columbia
• Citations: (2015), 369 B.C.A.C. 255 (CA);2015 BCCA 133

McCorquodale v. Baranti Dev. (2015), 369 B.C.A.C. 255 (CA);

    634 W.A.C. 255

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. MR.061

Agatha Elaine McCorquodale and Heather Marie McKee (respondents/petitioners) v. Baranti Developments Ltd. (appellant/respondent) and Cowichan Valley Regional District and Gordon Bruce Pascoe (respondents/respondents)

(CA041650; 2015 BCCA 133)

Indexed As: McCorquodale et al. v. Baranti Developments Ltd. et al.

British Columbia Court of Appeal

Donald, Harris and Goepel, JJ.A.

March 26, 2015.

Summary:

The land at issue was originally owned as a 60 acre parcel by Dodds. In 1912, Dodds conveyed part of the land (Parcel A), retaining District Lot 80. Parcel A had no access. In 1919, Dodds granted an easement over District Lot 80 to provide access to Parcel A. In 1976, Baranti Developments Ltd. acquired Parcel A. In 2004, District Lot 80 was subdivided. A road was built that provided alternative access to Parcel A. Beginning in 2008, Baranti began to develop Parcel A, which was subdivided into five lots, A to E. Lots B, C and E were conveyed to the Cowichan Regional District. Lot B became a public park. Baranti subdivided Lot A into 16 bare land strata lots, each with the 1919 easement endorsed on the title. The lots were marketed on the basis that purchasers would be able to use the easement for quick and direct pedestrian access to the beach. The plaintiffs were the owners of a 10 acre parcel that was part of the original District Lot 80. They applied for an order to cancel the easement.

The British Columbia Supreme Court allowed the application on the basis that the easement had been granted only as far as it was necessary for access and was now obsolete. Baranti appealed.

The British Columbia Court of Appeal allowed the appeal. The chambers judge had erred in narrowing the grant. The easement continued to have a function and to benefit the dominant tenement. The use of the easement by walkers was clearly intended in its original purpose and it continued to have a purpose and function under current conditions. The easement was not obsolete. The order cancelling the easement was set aside.

Deeds and Documents - Topic 2523

Operation and interpretation - The property conveyed - Intention of grantor - See paragraphs 21 to 37.

Deeds and Documents - Topic 2564

Operation and interpretation - Interpretation - Generally - Effect of recitals - See paragraphs 25 to 28.

Real Property - Topic 7185

Easements, licences and prescriptive rights - Extinguishment of easements - General principles (incl. legislation) - See paragraphs 21 to 37.

Real Property - Topic 8603

Title - Removal of encumbrances by court order - Grounds - Interest or charge obsolete - See paragraphs 21 to 37.

Cases Noticed:

Community Marine Concepts Ltd. v. Strata Plan VIS1889, Owners, [2012] B.C.T.C. Uned. 1384; 2012 BCSC 1384, refd to. [para. 23].

Granfield v. Cowichan Valley (Regional District) (1996), 71 B.C.A.C. 81; 117 W.A.C. 81; 16 B.C.L.R.(3d) 382 (C.A.), refd to. [para. 23].

Robb v. Walker (2015), 369 B.C.A.C. 170; 634 W.A.C. 170; 2015 BCCA 117, refd to. [para. 25].

TDL Group Ltd. v. Harvey et al., [2001] B.C.T.C. 468; 2001 BCSC 468, refd to. [para. 26].

Moon, In re; Ex parte Dawes (1886), 17 Q.B.D. 275 (C.A.), refd to. [para. 26].

White v. Grand Hotel, Eastbourne, Ltd., [1913] 1 Ch. 113 (C.A.), refd to. [para. 29].

Williams v. James (1867), L.R. 2 C.P. 577, refd to. [para. 29].

Chivas v. Mysek, 1986 CarswellBC 1259 (C.A.), refd to. [para. 34].

Collinson et al. v. LaPlante et al. (1992), 20 B.C.A.C. 207; 35 W.A.C. 207; 98 D.L.R.(4th) 459; 73 B.C.L.R.(2d) 257 (C.A.), refd to. [para. 34].

Vandenberg v. Olson (2010), 288 B.C.A.C. 75; 488 W.A.C. 75; 2010 BCCA 204, refd to. [para. 34].

Authors and Works Noticed:

Armour, Douglas Edward, Armour on Real Property (2nd Ed. 1916), p. 21 [para. 29].

Goddard, John Leybourn, Gale on Easements (8th Ed. 1921), p. 342 [para. 29].

Counsel:

J.R. Fowler, for the appellant;

J.P. Millbank, for the respondent.

This appeal was heard at Victoria, B.C., on January 26, 2015, by Donald, Harris and Goepel, JJ.A., of the British Columbia Court of Appeal. On March 26, 2015, Harris, J.A., delivered the following judgment for the court.