Boudreau v. Boudreau (2013), 338 N.S.R.(2d) 1 (SC);
1071 A.P.R. 1
MLB headnote and full text
Temp. Cite: [2013] N.S.R.(2d) TBEd. DE.023
Ronald Joseph Wayne Boudreau and Mary C. Boudreau (plaintiffs) v. Brian Boudreau, Robin Boudreau, Kevin Boudreau and Ronald Boudreau (defendants)
(Sn. No. 109818; 2013 NSSC 403)
Indexed As: Boudreau v. Boudreau
Nova Scotia Supreme Court
Murray, J.
September 6, 2013.
Summary:
The plaintiffs claimed a right-of-way across the defendants’ lands on the basis of: 1) an implied right-of-way based on necessity; 2) a right-of-way by express grant; or 3) rectification of title.
The Nova Scotia Supreme Court, in a decision reported at 184 N.S.R.(2d) 172; 573 A.P.R. 172, allowed the action. The court held that there was no right-of-way by necessity, but that a right-of-way existed by express grant. Alternatively, the plaintiffs were entitled to relief under the doctrine of rectification. The defendants appealed.
The Nova Scotia Court of Appeal, in a decision reported at 190 N.S.R.(2d) 300; 4 A.P.R. 300, dismissed the appeal.
The Nova Scotia Supreme Court, in a decision not reported in this series of reports, ordered that, (1) based on the prior orders, the plaintiffs were entitled to a right-of-way over the existing, and travelled, roadway; (2) the defendants were to provide, on an interim basis, an unobstructed right-of-way of a minimum width of 12 feet across the defendants’ lands; and that the width of the right-of-way so established on an interim basis was to remain until it was determined by further application of the court (the July 2001 order). The plaintiffs moved for a final determination of the width of the right-of-way, requesting that it be extended to 28 feet. The following issue arose: (1) whether the court had jurisdiction to issue the July 2001 order; (2) whether the court had authority to vary or make a final determination of the July 2001 order as the width of the right-of-way; and (3) whether the motion to extend the width of the right-of-way should be granted.
The Nova Scotia Supreme Court held that the court had jurisdiction to issue the July 2001 order and to proceed further and determine the width of the right-of-way on a final basis. The court extended the right-of-way from 12 feet to 18 feet on the portion of the right-of-way which was located on the defendants’ lands.
Courts – Topic 2051
Jurisdiction – Excess of jurisdiction – General – What constitutes – MacDonald, J., held that the plaintiffs had a right-of-way across the defendants’ lands – The Court of Appeal affirmed the decision – Goodfellow, J., ordered the defendants to provide, on an interim basis, an unobstructed right-of-way of a minimum width of 12 feet across the defendants’ lands – The plaintiffs moved for a final determination – The defendants asserted the court lacked jurisdiction to change a final and binding order of the Court of Appeal – The Nova Scotia Supreme Court held that the Court of Appeal’s order was a final order that disposed of the appeal, but it did not dispose of the proceeding – The Court of Appeal decreed that the plaintiffs had a right-of-way over a roadway and provided the roadway’s location – It was not a final determination of the width – The application, being a “subsequent proceeding” could be dealt with as if the Court of Appeal’s order was granted by the Supreme Court, being the court appealed from (rule 62.29) – The court had jurisdiction to determine on a final basis, the width of the right-of-way – See paragraphs 15 to 35.
Courts – Topic 6023
Provincial courts – Nova Scotia – Supreme Court – Jurisdiction – General – [See
Courts – Topic 2051
].
Real Property – Topic 7077
Easements, licences and prescriptive rights – Right of way – Extent of (incl. interpretation) – An interim order directed the defendant to provide, on an interim basis, an unobstructed right-of-way of a minimum width of 12 feet across the defendant’s lands – The primary plaintiff moved for a final determination, seeking a 28 foot right-of-way based on the width that was ploughed when the right-of-way was maintained by the local county – The primary defendant asserted that 12 feet appeared to be the original right-of-way – The Nova Scotia Supreme Court stated that it had to be considered whether it was necessary to establish the actual width of the existing and travelled portion of the roadway so as to give effect to the terms of the easement – An easement could be varied only with the consent of the owner of the fee (the servient tenement) (i.e., the defendant) – As there was a dispute over what constituted the existing and travelled portion of the roadway, there was a need to apply the rules of construction – The original easement’s intended purpose was for the plaintiff to have access from his property over the existing travelled roadway, to and from the highway – As it was worded generally, the use which could be made of the existing travelled roadway was “reasonable use” – The steepness of the right-of-way, combined with the curved shape of the travelled portion, made it treacherous to negotiate in icy and wintery conditions – The presence of the defendant’s large vehicles which he parked in close proximity, if not adjacent to the right-of-way, added to the potentially hazardous situation – It was unreasonable for the defendant to interfere with the use of the right-of-way in that manner – The defendant, as servient owner, was not entitled to perform activities to detract from, or make it difficult for the plaintiff to benefit from the right-of way – The court extended the right- of-way to 18 feet – See paragraphs 36 to 82.
Real Property – Topic 7220
Easements, licences and prescriptive rights – Interference or obstruction – Interference with right of way – [See
Real Property – Topic 7077
].
Cases Noticed:
Oley and Moffatt v. Fredericton (City) (1983), 50 N.B.R.(2d) 157; 131 A.P.R. 157 (Q.B.), refd to. [para. 20].
Lawrie v. Lees (1881), 7 App. Cas. 19 (H.L.), refd to. [para. 20].
Bank of Nova Scotia v. Golden Forest Holdings Ltd. (1990), 98 N.S.R.(2d) 429; 263 A.P.R. 429 (C.A.), refd to. [para. 21].
Rafuse v. Swinimer (2009), 279 N.S.R.(2d) 256; 887 A.P.R. 256; 2009 NSSC 179, refd to. [para. 39].
Knock v. Fouillard (2007), 252 N.S.R.(2d) 298; 804 A.P.R. 298; 2007 NSCA 27, refd to. [para. 40].
Statutes Noticed:
Civil Procedure Rules (N.S.), rule 90.53(1) [para. 32].
Rules of Civil Procedure (N.S.) – see Civil Procedure Rules (N.S.).
Rules of Court (N.S.) – see Civil Procedure Rules (N.S.).
Authors and Works Noticed:
Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 2, paras. 1804.3, 1804.7 [para. 41].
Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (Looseleaf), vol. 2, para. 17:20.30(a) [para. 47].
Counsel:
Michael Tobin, for the plaintiffs;
Darlene MacRury, for the defendants.
This application was heard at Sydney, Nova Scotia, on March 18, 2013, with final written submissions received on May 10, 2013, by Murray, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 6, 2013.
