Whitmell v. Tucker, (1999) 100 O.T.C. 370 (SC)

• Judge: Belch, J.
• Case Date: June 08, 1999
• Jurisdiction: Ontario
• Citations: (1999), 100 O.T.C. 370 (SC)

Whitmell v. Tucker (1999), 100 O.T.C. 370 (SC)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. JN.122

Bert Whitmell and Judith Whitmell (plaintiffs) v. William Tucker (defendant)

(North Bay Court File No. G20433 97)

Indexed As: Whitmell v. Tucker

Ontario Court

Superior Court of Justice

Belch, J.

June 8, 1999.

Summary:

The Ritchies purchased a cottage property with access in front of Whitmells' cabin over a grassy lawn, consisting of two wheel tracks without gravel. A judge ordered "that the access road to the applicant's (Ritchie) property be made accessible by means of motor vehicle access, in that the respondent (Whitmell) or the applicant (Ritchie) be allowed to repair and maintain the same." Tucker, in the employ of the Ritchies, arrived at the Whitmells' property with a bulldozer, float, half-ton truck and tandem truck to work on the Ritchies' access road. After bulldozing, Tucker dumped, spread and levelled gravel covering a track wider than the tandem truck from a highway to the Ritchies' property. The Whitmells sued Tucker personally, seeking damages or, alternatively, restoration of the property to its original state and costs.

The Ontario Superior Court ordered Tucker to attend, remove the gravel from the access route and restore the property to its former state, failing which the Whitmells could make alternate arrangements and Tucker would be responsible for the costs. Access over the restored lawn was both accessible and passable before Tucker bulldozed and added gravel. The dumping and levelling of gravel to the width of a tandem truck across the lawn went beyond repairing, restoring or maintaining of the access road.

Editor's Note: For related cases see 54 O.A.C. 239, 74 O.A.C. 317 and 1998 O.A.C. Uned. 347.

Real Property - Topic 7081

Easements, licences and prescriptive rights - Rights of way - Way of necessity - Fixing and extent of - See paragraphs 1 to 24.

Real Property - Topic 7088

Easements, licences and prescriptive rights - Rights of way - Alteration - See paragraphs 1 to 24.

Real Property - Topic 7292

Easements, licences and prescriptive rights - Extent of right granted - Maintenance of right of way - See paragraphs 1 to 24.

Real Property - Topic 7293

Easements, licences and prescriptive rights - Extent of right granted - Right to construct or reconstruct road or path - See paragraphs 1 to 24.

Words and Phrases

Accessible - The Ontario Superior Court discussed the meaning of the word "accessible" - See paragraph 17.

Words and Phrases

Repairs - The Ontario Superior Court discussed the meaning of the word "repair" - See paragraph 17.

Words and Phrases

Restore - The Ontario Superior Court discussed the meaning of the word "restore" - See paragraph 17.

Words and Phrases

Maintain - The Ontario Superior Court discussed the meaning of the word "maintain" - See paragraph 17.

Words and Phrases

Passable - The Ontario Superior Court discussed the meaning of the word "passable" - See paragraph 18.

Cases Noticed:

Whitmell v. Ritchie et al. (1994), 74 O.A.C. 317; 20 O.R.(3d) 424 (C.A.), refd to. [para. 7].

Authors and Works:

Canadian Oxford Dictionary (1998) [para. 17].

Counsel:

Plaintiffs, on their own behalf;

Barbara Morland Wellard, for the defendant.

This matter was heard by Belch, J., of the Ontario Superior Court, who delivered the following decision on June 8, 1999.