Oostdale Farm et al. v. Oostvogels, (2016) 375 N.S.R.(2d) 61 (SC)

JudgeScaravelli, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateMay 31, 2016
JurisdictionNova Scotia
Citations(2016), 375 N.S.R.(2d) 61 (SC);2016 NSSC 146

Oostdale Farm v. Oostvogels (2016), 375 N.S.R.(2d) 61 (SC);

    1182 A.P.R. 61

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JN.010

Oostdale Farm and John Oostvogels (plaintiffs) v. Joseph Lawrence Oostvogels (defendant)

(Antigonish No. 358355; 2016 NSSC 146)

Indexed As: Oostdale Farm et al. v. Oostvogels

Nova Scotia Supreme Court

Scaravelli, J.

May 31, 2016.

Summary:

This action involved a property dispute between two brothers as a result of a subdivision of a lot of land from the family farm property. At issue was the size of the subdivided lot of land owned by the defendant and his use of a right of way over the farm property owned by the plaintiffs (one of the brothers and his farm). The parties disagreed about the location of the boundaries of the defendant's property. Further, the plaintiffs claimed that the defendant's use of the right of way to service his automotive repair business was not authorized by the grant of right of way.

The Nova Scotia Supreme Court found that the boundary lines marked by the fences as depicted in the plan of survey established the boundaries of the defendant's property. As a result, the plaintiffs' claim for a declaration that the boundaries of the defendant's property were as set out in the deed was dismissed. The court found that the defendant had changed the right of way from a private one to a public one and this went beyond what was reasonably contemplated by the parties when the property was subdivided. As a result, the plaintiffs were entitled to a mandatory injunction restraining the defendant from utilizing the right of way by the public for commercial purposes. The court awarded the plaintiffs $1 in damages.

Damage Awards - Topic 550

Torts - Injury to land and buildings - Trespass - [See first Real Property - Topic 7077 ].

Damages - Topic 1200

Nominal damages - General (incl. when available) - [See first Real Property - Topic 7077 ].

Real Property - Topic 4700

Title - Boundaries - Determination of boundaries - This action involved a property dispute between two brothers as a result of a 1987 subdivision of a lot of land from the family farm property - At issue, inter alia, was the size of the subdivided lot of land owned by the defendant - The parties disagreed about the location of the boundaries of the defendant's property - The defendant obtained title to his property through his father's Last Will and Testament - The description of the defendant's property originated with the 1988 deed from the Nova Scotia Farm Loan Board to the father - The parties agreed that there was a "latent ambiguity" in the 1988 deed, because the metes and bounds description set out in the deed, which referenced fence lines, did not correspond with the locations of the fence lines or the stated size of the lot (six acres) - A plan of survey and report tendered by the defendant confirmed that the northern boundary, which was stated as being 670 feet in the 1988 deed, was measured to be 927 feet along the fence line; the southern boundary was stated as being 735 feet in the 1988 deed, but it was measured at 1134 feet along the fence line - The Nova Scotia Supreme Court held that extrinsic evidence could be used to resolve the ambiguity - The court found that the fences as depicted in the plan of survey established the boundaries of the defendant's property - See paragraphs 11 to 23.

Real Property - Topic 4700

Title - Boundaries - Determination of boundaries - This action involved a property dispute between two brothers as a result of a 1987 subdivision of a lot of land from the family farm property - The parties agreed that there was a "latent ambiguity" in the 1988 deed, because the metes and bounds description set out in the deed, which referenced fence lines, did not correspond with the locations of the fence lines or the stated size of the lot (six acres) - The Nova Scotia Supreme Court stated that "In the event of ambiguity, the court should 'give most effect to those things about which men are least liable to mistake'. Hence the hierarchy of evidence, which sets the following order of priority: Natural boundaries; Original monuments, e.g. lines actually run and corners actually marked; Fences or possession that can reasonably be related back to the time of the original survey; and Measurements or 'metes and bounds'." - See paragraph 20.

Real Property - Topic 4724

Title - Boundaries - Rules of construction - Where document vague or contains latent ambiguity - [See both Real Property - Topic 4700 ].

Real Property - Topic 4930

Title - Boundaries - Evidence - Admissibility or weight of plan of survey - [See first Real Property - Topic 4700 ].

Real Property - Topic 4934

Title - Boundaries - Evidence - Extrinsic evidence - [See both Real Property - Topic 4700 ].

Real Property - Topic 7077

Easements, licences and prescriptive rights - Rights of way - Extent of (incl. interpretation) - This action involved a property dispute between two brothers as a result of a subdivision of a lot of land from the family farm property - At issue, inter alia, was the defendant's use of a right of way over the farm property owned by the plaintiffs (one of the brothers and his farm) - The plaintiffs claimed that the defendant's use of the right of way to service his automotive repair business was not authorized by the grant of right of way - The Nova Scotia Supreme Court held that "While the use of land can change over time, the change of use of this right of way created an unacceptable increase of traffic creating an over burden on the right of way." - The defendant changed the right of way from a private one to a public one and this went beyond what was reasonably contemplated by the parties when the property was subdivided - As a result, the plaintiffs were entitled to a mandatory injunction restraining the defendant from utilizing the right of way by the public for commercial purposes - The court awarded the plaintiffs $1 in damages where they had not shown that they had suffered any loss - See paragraphs 24 to 44.

Real Property - Topic 7077

Easements, licences and prescriptive rights - Rights of way - Extent of (incl. interpretation) - The Nova Scotia Supreme Court found that the words of the grant of an easement did not specify the right of way's purpose, beyond giving a right of access between the "Church Street Extension" and the defendant's property - It also did not specify the permitted scope or mode of use - Therefore, an examination of the surrounding circumstances was necessary - The court stated that "There are various factors that may form the analysis. 1. The past use of the right of the way and its use at the time of grant; 2. Why the right of way was created; 3. Physical characteristics of the right of way surrounding servient land; 4. Characteristics of the dominant tenement; 5. Relationship of the parties; 6. Passage of time. An easement's purpose may not be frozen in time and can evolve where the use of the land changes within the reasonable ambit of the right of way ... However, it is a general principle that the grantee of a private right of way cannot turn it into a public right of way ..." - See paragraphs 32 and 33.

Real Property - Topic 7084

Easements, licences and prescriptive rights - Rights of way - Unlawful or excessive use - [See first Real Property - Topic 7077 ].

Real Property - Topic 7088

Easements, licences and prescriptive rights - Rights of way - Alteration - [See both Real Property - Topic 7077 ].

Real Property - Topic 7088

Easements, licences and prescriptive rights - Rights of way - Alteration - The Nova Scotia Supreme Court found that the words of the grant of an easement did not specify the right of way's purpose, beyond giving a right of access between the "Church Street Extension" and the defendant's property - It also did not specify the permitted scope or mode of use - Therefore, an examination of the surrounding circumstances was necessary - The court stated that "There are various factors that may form the analysis. 1. The past use of the right of the way and its use at the time of grant; 2. Why the right of way was created; 3. Physical characteristics of the right of way surrounding servient land; 4. Characteristics of the dominant tenement; 5. Relationship of the parties; 6. Passage of time. An easement's purpose may not be frozen in time and can evolve where the use of the land changes within the reasonable ambit of the right of way ... However, it is a general principle that the grantee of a private right of way cannot turn it into a public right of way ..." - See paragraphs 32 and 33.

Real Property - Topic 7088

Easements, licences and prescriptive rights - Rights of way - Alteration - The Nova Scotia Supreme Court stated that "Some examples of excessive use [of a right of way] are: 1. The grantee unreasonably interferes with other users; 2. The grantee's use is inconsistent with the purpose of the right of way; 3. The grantee's use exceeds the permitted scope or mode of use; and 4. The right of way is being used to access property beyond the dominant tenement." - See paragraph 28.

Counsel:

Robert H. Pineo and Jeremy P. Smith, for the plaintiffs;

John Shanks, for the defendant.

This case was heard on February 8 and 10, 2016, at Antigonish, N.S., by Scaravelli, J., of the Nova Scotia Supreme Court, who delivered the following decision on May 31, 2016.

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4 practice notes
  • York Region Condominium Corporation No. 890 v. Market Village Markham Inc., 2020 ONSC 3993
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • June 29, 2020
    ...on Easements, 20th ed. (London: Sweet & Maxwell, 2017), at para. 3-12; Fallowfield, at para. 10. [16] 2014 SCC 53, 2 S.C.R. 633. [17] 2016 NSSC 146, 375 N.S.R. (2d) 61, at para. [18] 2123201 Ontario Inc. v. Israel Estate, 2016 ONCA 409, 130 O.R. (3d) 652, at para. 41. [19] Weidelich v. ......
  • Payne v. Elfreda Freeman Alter Ego Trust (2015), 2019 NSSC 34
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • January 29, 2019
    ...instructive regarding alleged overburdening of a right-of-way, see: Laamanen v. Cleary, 2018 NSCA 12; and Oostdale Farms v. Oostvogels, 2016 NSSC 146 per Scaravelli [3] The only references in the evidence to dangerous situations vis-à-vis the travelled portion of the existing right-of-way b......
  • St. Boniface Warehousing Ltd. v. BBD Holdings Ltd., 2019 MBQB 181
    • Canada
    • Court of Queen's Bench of Manitoba (Canada)
    • December 9, 2019
    ...... [30] It is acknowledged by St. Boniface that the grantee cannot overburden a right-of-way. However, in Oostdale Farm v. Oostvogels, 2016 NSSC 146 (CanLII), the court set out some examples of excessive use, at paragraph 28, as 1. The grantee unreasonably interferes with other users; 2. T......
  • Cleary v. Laamanen, 2018 NSCA 12
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • February 13, 2018
    ...scope. They argue that in construing the rights of way, she should have examined surrounding circumstances: Oostdale Farm v. Oostvegels, 2016 NSSC 146. According to the Clearys, in this case, these circumstances would include the description of one of the rights of way as only “unrestricted......
4 cases
  • York Region Condominium Corporation No. 890 v. Market Village Markham Inc., 2020 ONSC 3993
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • June 29, 2020
    ...on Easements, 20th ed. (London: Sweet & Maxwell, 2017), at para. 3-12; Fallowfield, at para. 10. [16] 2014 SCC 53, 2 S.C.R. 633. [17] 2016 NSSC 146, 375 N.S.R. (2d) 61, at para. [18] 2123201 Ontario Inc. v. Israel Estate, 2016 ONCA 409, 130 O.R. (3d) 652, at para. 41. [19] Weidelich v. ......
  • Payne v. Elfreda Freeman Alter Ego Trust (2015), 2019 NSSC 34
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • January 29, 2019
    ...instructive regarding alleged overburdening of a right-of-way, see: Laamanen v. Cleary, 2018 NSCA 12; and Oostdale Farms v. Oostvogels, 2016 NSSC 146 per Scaravelli [3] The only references in the evidence to dangerous situations vis-à-vis the travelled portion of the existing right-of-way b......
  • St. Boniface Warehousing Ltd. v. BBD Holdings Ltd., 2019 MBQB 181
    • Canada
    • Court of Queen's Bench of Manitoba (Canada)
    • December 9, 2019
    ...... [30] It is acknowledged by St. Boniface that the grantee cannot overburden a right-of-way. However, in Oostdale Farm v. Oostvogels, 2016 NSSC 146 (CanLII), the court set out some examples of excessive use, at paragraph 28, as 1. The grantee unreasonably interferes with other users; 2. T......
  • Cleary v. Laamanen, 2018 NSCA 12
    • Canada
    • Court of Appeal of Nova Scotia (Canada)
    • February 13, 2018
    ...scope. They argue that in construing the rights of way, she should have examined surrounding circumstances: Oostdale Farm v. Oostvegels, 2016 NSSC 146. According to the Clearys, in this case, these circumstances would include the description of one of the rights of way as only “unrestricted......

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