Parker v. Parker (1989), 100 N.B.R.(2d) 361 (TD);
100 R.N.-B.(2e) 361; 252 A.P.R. 361
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Stewart Parker and Susan Parker (plaintiffs) v. Alfred W. Parker and Bessie Parker (defendants)
(M/C/1481/88)
Indexed As: Parker v. Parker
New Brunswick Court of Queen’s Bench
Trial Division
Judicial District of Moncton
Paul S. Creaghan, J.
September 1, 1989.
Summary:
A agreed to let B use A’s driveway as a right of way to B’s property. After nine years of usage, A withdrew his permission and blocked the driveway. B commenced an action to determine his right to the driveway on the ground of estoppel. A submitted that he had only given B a licence to use the driveway and that it could be terminated at will.
The New Brunswick Court of Queen’s Bench, Trial Division, held that B only had a licence to use the driveway and that it could be terminated after giving proper notice.
Contracts – Topic 8008
Statute of Frauds – Part performance – When available – In 1979, A gave B permission to use A’s driveway as a right of way to B’s property – B brought an action to determine his right to use the roadway in 1988 after B withdrew his permission and blocked the driveway – A claimed that there was no enforceable agreement because the Statute of Frauds was not complied with as nothing was in writing – The New Brunswick Court of Queen’s Bench, Trial Division, held that there had been sufficient performance relating to the agreement to take the matter outside of the Statute of Frauds – See paragraph 27.
Contracts – Topic 9945
Promissory estoppel – Where applicable – Claim to possession of land – In 1979, A agreed to let B use A’s driveway as a right of way – Nothing was put in writing and B did not contribute to the maintenance of the driveway – In 1988, A withdrew his permission and blocked the driveway – B commenced an action to determine his right to use the driveway on the ground of promissory estoppel – The New Brunswick Court of Queen’s Bench, Trial Division, held that there was no enforceable contract because no consideration moved from B to A – The court noted that the doctrine of promissory estoppel did not, by itself, dispense with the requirement for consideration at law – See paragraphs 35 to 38.
Real Property – Topic 7014
Easements, licences and prescriptive rights – Creation – Oral grant for consideration – A granted B the right to use his driveway for a right of way – After nine years of usage, A withdrew his permission and blocked the driveway – B claimed that A was estopped from withdrawing permission because B relied on the promise and would suffer expense and inconvenience in finding another means of access – The New Brunswick Court of Queen’s Bench, Trial Division, held that B had only a licence to use, given by way of permission, that could be withdrawn on reasonable notice – See paragraphs 28 to 32.
Real Property – Topic 7237
Easements, licences and prescriptive rights – Licences – What constitutes – [See Real Property – Topic 7014].
Cases Noticed:
Central London Property Trust Ltd. v. High Trees House Ltd., [1947] K.B. 130, refd to. [paras. 35, 37, 38].
Combe v. Combe, [1951] 1 All E.R. 767, refd to. [para. 37].
Statutes Noticed:
Statute of Frauds, R.S.N.B. 1973, c. S-14, generally [para. 27].
Authors and Works Noticed:
Hanbury, Modern Equity (9th Ed. 1969), p. 675 [para. 32].
Turner, Estoppel by Representation (3rd Ed. 1977), p. 387 [para. 36].
Counsel:
Edward J. McGrath, for the plaintiffs;
Scott F. Fowler, for the defendants.
This matter was heard on August 25, 1989, by Paul S. Creaghan, J., of the New Brunswick Court of Queen’s Bench, Trial Division, in the Judicial District of Moncton, who delivered the following judgment on September 1, 1989.
