Zive Estate v. Lynch, (1989) 94 N.S.R.(2d) 401 (CA)

• Judge: Macdonald, Pace and Matthews, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 21, 1989
• Jurisdiction: Nova Scotia
• Citations: (1989), 94 N.S.R.(2d) 401 (CA)

Zive Estate v. Lynch (1989), 94 N.S.R.(2d) 401 (CA);

    247 A.P.R. 401

MLB headnote and full text

Thomas E. Lynch and Mary Lynch (appellants) v. Canada Trust Company, Dvara Elaine Leventhal, Aaron Zive and Ada Zive, Trustees of the Estate of M.I. Zive, deceased (respondents)

(S.C.A. No. 02113)

Indexed As: Zive Estate v. Lynch

Nova Scotia Supreme Court

Appeal Division

Macdonald, Pace and Matthews, JJ.A.

December 21, 1989.

Summary:

There was a right-of-way over the Lynchs' property to the rear of property owned by Zive's estate. The Zive property contained both residential and commercial premises and the right-of-way was used for both. The Lynchs, unhappy with what they perceived to be misuse of the right-of-way, blocked it off. The trustees of Zive's estate brought an action for a declaration that the estate had an unrestricted right-of-way over the Lynchs' property. The trustees also sought damages and an injunction to prevent interference with the use of the right-of-way. The Lynchs counterclaimed for a declaration that no right-of-way existed, for special and general damages for trespass and for an injunction to prevent use of the right-of- way.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 90 N.S.R.(2d) 122; 230 A.P.R. 122, held that the estate had an unrestricted right-of-way for both residential and commercial purposes. The court refused to award damages and dismissed the Lynchs' counterclaim. The Lynchs appealed.

The Nova Scotia Supreme Court, Appeal Division, allowed the appeal in part. The court held that the right-of-way was restricted to residential use.

Land Regulation - Topic 2653

Land use control - Zoning bylaws - Prohibited uses - Right-of-way not conforming with bylaw - [See Real Property - Topic 7077 below].

Real Property - Topic 7077

Easements, licences and prescriptive rights - Right-of-way - Extent of - The Zive property was used for combined residential and commercial purposes - It was not zoned commercial - A right-of-way was reserved by deed over the Lynch property to the rear of the Zive property - The Lynch property was zoned residential - The Nova Scotia Court of Appeal held that the right-of-way over lands zoned residential could only be used for residential purposes - Commercial use of the right-of-way would be tantamount to allowing the unilateral defeat of the zoning legislation.

Cases Noticed:

Fredericton Heritage Trust Inc. et al. v. Fredericton (City) (1988), 88 N.B.R.(2d) 238; 224 A.P.R. 238 (C.A.), refd to. [para. 17].

Islands Trust v. Pinchin Holdings Ltd. et al. (1981), 130 D.L.R.(3d) 69 (B.C.C.A.), refd to. [para. 19].

Zoning Board of Adjustment of Philadelphia v. St. Vladimer's Ukrainian Orthodox Church et al. (1972), 291 A. 2d. 344, refd to. [para. 21].

Atria Inc. et al. v. Board of Adjustment of Mount Lebanon Township (1970), 264 A. 2d. 608, refd to. [para. 21].

Commonwealth of Pennsylvania v. Cieslak (1955), 115 A. 2d. 418, refd to. [para. 21].

Statutes Noticed:

City of Halifax, An Act of Amend the Law in Relation to the, S.N.S. 1915, c. 46, sect. 18(5) [para. 10].

Planning Act, S.N.S. 1983, c. 9, sect. 85(2) [para. 26]; sect. 86(2) [para. 28].

Authors and Works Noticed:

Makuch, Canadian Municipal and Planning Law (1983), p. 193 [para. 14].

Rogers, Canadian Law of Planning and Zoning, pp. 115, 158.28 [para. 13].

Rogers, The Law of Canadian Municipal Corporations (2nd Ed.), p. 770 [para. 15].

Counsel:

W. Dale Dunlop, for the appellants;

R.N. Pugsley, Q.C., and David Farrar, for the respondents.

This appeal was heard on October 10, 1989, before Macdonald, Pace and Matthews, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On December 21, 1989, Macdonald, J.A., delivered the following judgment for the Court of Appeal.