No sooner did I finish my last article on implied easements – saying “You won’t come across these rights or claims every day. In fact, they are unusual and relatively obscure” – when I saw the reasons for judgment in a case decided in late September, 2017, granting a right of access on the basis of an implied easement and other easement doctrines discussed in my last two Beef in BC articles.
The case is Bland v. Bland, a decision by Justice G.P. Weatherill of the Supreme Court of British Columbia.
The judge granted the access right on the basis of:
Clearly the lawyer for the applicants left no stone unturned in listing the possible legal bases for the access right.
The parties were two brothers and their respective spouses. Both had long been engaged in farming adjacent parcels, purchased from their parents, although the farm enterprises of the brothers differed. At time of trial, the applicants grew hay and used storage buildings for boat and vehicle storage in winter, and the respondents had a poultry operation.
The evidence was clear that the brothers did not get along with each other and had not had a good relationship for years. The respondents described the relationship as “hostile” and “unsatisfactory”.
The dispute involved the right to use a 5 metre wide, 500 metre long gravel access road which lay between the parcel owned by the applicants and that owned by the respondents. It allowed the applicants to access their homesite and, generally, their land. Without the access right, the applicants’ parcel was landlocked.
The road had long been thought to be a public road and had been publicly maintained. However, from a new survey in 2012, the parties discovered that the access road was not a public road but rather that two-thirds of the road was land owned by the respondents.
(Although one would think that years of public maintenance could have raised the prospect that the road was, in fact, public, it appears that neither the province nor the local government asserted that argument. Although the City of Salmon Arm was a co-respondent, the decision does not mention any argument that the road was public. This was a dispute between private land owners.)
The road was bracketed by BC Hydro rights of way – a key determining factor in the decision, because BC Hydro refused to agree to allow the applicants to move the access route and accompanying ditch onto the applicants’ adjacent land where the BC Hydro right of way was located, due to Hydro’s safety and operational concerns. BC Hydro felt that a new driveway, ditch, or fence within the Hydro right of way area was unacceptable because it could interfere with Hydro’s ability to access its equipment and works.
After the 2012 survey showed that the access route was primarily on the respondents’ land, the respondent brother took active steps to make access, and life generally, difficult for the applicants. The respondent brother blocked the entry to the road with concrete blocks, used his loader to block the access route for short time periods, “roared” his loader up and down the access road for no reason, spread mud on the access road with his equipment tires, sprinkled chicken manure along the access road, parked his loader up to the edge of the access road, made obscene gestures to his brother as he drove by, drove his loader in a “menacing and threatening manner” as the applicants were using the road, tried to cut people off who were using the road, built a secondary access road on the property line near the applicants’ house and drove back and forth on it for no apparent reason except to create noise and envelop the applicants’ house with dust, frequently stopped his loader in the dark to shine its headlights into the applicants’ kitchen window, allowed geese hunters to park their vehicles along the access road which impeded the applicants’ access, demanded compensation from those using the access road and told the applicants’ customers that they could not use the part of the road on the respondents’ property.
Reading between the lines of the case, my view is that this campaign of harassment, combined with BC Hydro’s position that the road could not be moved, is what “closed the deal” and cost the respondents any prospect of success.
In the result, the judge had no hesitation in ordering that the applicants had ownership of the road. They were to pay $5,000 to the respondents for the title to the access road.
Implied Easement – Convenience and Accommodation. Based on the doctrine of implied easement based on apparent convenience and accommodation, the judge decided that the applicants were entitled to an easement over the access route, because they had proved the requirements for the implied easement:
Implied Easement By Way of Necessity. The judge decided that the applicants were also entitled to an easement over the access route because of necessity, the easement having been implicitly granted by the parents to the applicants when the applicants bought their property from the parents. “There is no other realistic [access] option available.”
Proprietary Estoppel. The judge said “Proprietary estoppel involves the equitable acquisition of land where its owner knowingly stands by while another person incurs detriment under the belief that he is entitled to an interest in the land.”
Further, “Given the history of the use of the [access road] by the parties, their parents and the prior owners of [the applicants’ and respondents’ properties], and decades of unobstructed and unfettered use, it would be unconscionable, unjust and inequitable…to deny the [applicants] the use of the [access road]. Failure to grant them an easement would result in [the applicants’ property] being land-locked and would deny them the ability to earn a living from their farm.”
Property Law Act section 36. Section 36(2) says “If, on the survey of land, it is found that a building on it encroaches on adjoining land, or a fence has been improperly located so as to enclose adjoining land, the Supreme Court may on application
(a) declare that the owner of the land has for the period the court determines and on making the compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed,
(b) vest title to the land encroached on or enclosed in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or
(c) order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land.”
The “building” or “fence” language has been interpreted liberally by courts, to the extent that a “fence” can mean a fence that used to exist but is no longer there.
The judge in the Bland case decided that the road encroachment fell within the liberal interpretation of “fence”.
He then examined the balance of convenience. The risk of creating a land-locked parcel weighed far more heavily in his mind when compared with the respondent’s simple desire to fence his road right up to its boundary, being two-thirds of the way across the 5 meter access route. The applicants’ risk was far more severe than any prejudice to the respondents.
The judge chose to make an order transferring ownership of the access road to the applicants, seeing this as the only potential way to avoid future conflict between the applicants and respondents, as there would inevitably be if an easement involving shared maintenance and cost sharing obligations was the outcome.
This is a case in which the facts, especially the long use of the access route without objection by the respondents, and the conduct of the respondent brother after his ownership of part of the underlying land was discovered, drove the law and the judge’s decision.
In section 36 of the Property Law Act, the judge found a legal basis on which to hang his decision to award ownership of the road to the applicants. The applicants’ qualification for an award of an easement based on the law of implied easements and proprietary estoppel, was likely incidental but was included to strengthen the result for the applicants even further – perhaps thinking of the possibility of an appeal.
The latest Court Registry record about this case is a judge’s decision on December 14, 2017, in which the judge authorized the surveyor to enter onto the respondents’ property to undertake the access road survey, waived requirements for approval of the survey plan to create the road by the local government approving officer and Agricultural Land Commission, and ordered the respondents to pay the applicants $100,000 in special costs – an expression of the judge’s extreme disapproval of the respondents’ trial conduct - and $7,500 in damages for breach of an interim injunction ordering the respondents to stop interfering with the applicants’ use of the access road.