Murphy v. Murphy, (2016) 379 Nfld. & P.E.I.R. 327 (NLTD(G))

• Judge: Hall, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: December 15, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2016), 379 Nfld. & P.E.I.R. 327 (NLTD(G))

Murphy v. Murphy (2016), 379 Nfld. & P.E.I.R. 327 (NLTD(G));

    1176 A.P.R. 327

MLB headnote and full text

Temp. Cite: [2016] Nfld. & P.E.I.R. TBEd. FE.008

John Murphy (first applicant) and Sharon Murphy (second applicant) v. Keith Murphy (respondent)

(201501G2614; 2016 NLTD(G) 27)

Indexed As: Murphy v. Murphy

Newfoundland and Labrador Supreme Court

Trial Division (General)

Hall, J.

February 11, 2016.

Summary:

The applicants applied for an order declaring that the respondent had no legal rights to any portion of a certain parcel of land (the subject property). The applicants had conveyed a parcel of land adjacent to the subject property to the respondent in 1996. They submitted that no right-of-way was granted or conveyed to the respondent over or across the subject property in order for him to gain access to the parcel of land conveyed to him. The respondent claimed that he had a right-of-way across the southern portion of the subject property of the applicants and had used this area as a driveway to gain access to his property and had parked vehicles on this area.

The Newfoundland and Labrador Supreme Court, Trial Division (General), declared that the respondent had no legal rights to any portion of the subject property and had no right to access, travel over or in any way use any portion of the subject property.

Real Property - Topic 7040

Easements, licences and prescriptive rights - Creation by implication of law - Right of way created by reference to a plan - [See Real Property - Topic 7080 ].

Real Property - Topic 7068

Easements, licences and prescriptive rights - Creation by prescription - Bars - Permission - [See Real Property - Topic 7080 ].

Real Property - Topic 7080

Easements, licences and prescriptive rights - Rights of way - Way of necessity - General - The applicants applied for an order declaring that the respondent (their son) had no legal rights to any portion of a certain parcel of land (the subject property) - The applicants had conveyed a parcel of land adjacent to the subject property to the respondent in 1996 - They submitted that no right-of-way was granted or conveyed to the respondent over or across the subject property in order for him to gain access to the parcel of land conveyed to him - The respondent claimed that he had a right-of-way across the southern portion of the subject property and had used this area as a driveway to gain access to his property and had parked vehicles on this area - The respondent asserted that the plan attached to the deed from his parents depicted an easement area passing over the subject property from the Southern Shore Highway and allowing him access to his property - The Newfoundland and Labrador Supreme Court, Trial Division (General), declared that the respondent had no legal rights to any portion of the subject property and had no right to access, travel over or in any way use any portion of the subject property - The court was satisfied from the evidence of Vallis (a surveyor) that he never intended the "sketch" attached to the deed to the respondent to be the final work product and that he merely prepared that sketch in accordance with the respondent's instructions in order that the respondent would have something to present to his father for his final approval - The written description attached to the deed did not contain any words to indicate that the conveyance was also to include any form of easement from the Southern Shore Highway to the boundary of the respondent's property - No easement in favour of the respondent arose by reason of s. 3(1) of the Conveyancing Act - There could also be no implication of a right of way of necessity as the respondent had access to his property from an existing entry driveway from Williams Lane, a public road - Finally, nothing done would give an easement over the subject property by prescription - Any usage of a driveway from the Southern Shore Highway to the respondent's property over the subject property was given by permission for a period of time and could be terminated when the applicants wished to sell their property.

Counsel:

P. Paul Burgess, for the applicants;

Keith Murphy, on his own behalf.

This application was heard on September 30 and December 15, 2015, at St. John's, N.L., before Hall, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on February 11, 2016.