Acquisition of Easements by Prescription

The Court of Appeal decision in Kaminskas v. Storm, 2009 ONCA 318 sets out the law well on acquiring real property rights by prescription.

IV. LAW & ANALYSIS

The Applicable Principles Methods of Acquisition of Easements by Prescription

[20] In law, there are three ways in which an easement may be acquired by prescription:
a) prescription at common law;
b) prescription by the doctrine of lost modern grant; and
c) prescription by statute (Real Property Limitations Act).

[21] Prescription at common law is no longer relevant. It requires use of the disputed right since "time immemorial." Time immemorial, for purposes of the period of legal memory is defined as the year 1189, the beginning of the reign of King Richard I. Obviously, a prescriptive right at common law is somewhat difficult to prove in modern times, particularly in Canada . It has been said that prescription by common law cannot exist here because there is no legal memory on which to found it: see A.H. Oosterhoff & W.B. Rayner, 2d ed. Anger and Honsberger: Law of Real Property, vol. 2 (Aurora, Ont.: Canada Law Book Inc., 1985), at p. 936, citing Abell v. Village of Woodbridge and County of York (1917), 39 O.L.R. 382 (H.C.), rev'd on other grounds 45 O.L.R. 79 (S.C. App. Div.).

[22] The doctrine of lost modern grant, on the other hand, "is alive" and – as Cory J.A. noted, drily, in Henderson v. Volk (1982), 35 O.R. (2d) 379 (C.A.), at p. 382 – "if not well is at least surviving in the province of Ontario." This doctrine was developed in common law jurisprudence to overcome the inconvenience of the common law rule (where the right could be defeated if it could be proven that the right claimed did not exist at any point in time within legal memory). Under the doctrine of lost modern grant, the courts will presume that there must have been a grant made sometime, but that the grant had been lost. Uninterrupted user as of right at any point in time will create the prescriptive right under this doctrine, provided it was for at least 20 years.

[23] Cory J.A. described the doctrine of lost modern grant in Henderson v. Volk, at pp. 382-383: The doctrine indicates that where there has been upwards of 20 years uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfil the requirements of prescription, then apart from some aspects such as incapacity that might vitiate its operation but which do not concern us here, the law will adopt the legal fiction that such a grant was made despite the absence of any direct evidence that it was in fact made. It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20-year period immediately preceding the bringing of an action. As well, the enjoyment must not be permissive. That is to say, it cannot be a user of the right-of-way enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established. [Citations omitted.] See also Rose v. Krieser (In Trust) (2002), 58 O.R. (3d) 641 ( C.A. ).

[24] As the years passed, the doctrine of lost modern grant was found to be more and more unsatisfactory, because it called upon juries to presume the existence of a lost grant as a fact, even where they did not believe it existed. The English Prescription Act 1832, 2 & 3 Will. 4, c. 71, may have been enacted, at least in part, to overcome this problem.

[3] Its preamble states that it was enacted to prevent common law claims from being defeated by evidence of the commencement of user after 1189 (the very rationale for the development of the doctrine of lost modern grant). Sections 31 and 32 of the Ontario Real Property Limitations Act echo the language of the 1832 legislation.

[25] The wording of these sections is tortuous at best.

[4] Stripped to their essentials, for purposes of this appeal, they read as follows:

Right of way, easement, etc.

31. No claim that may be made lawfully at the common law, by … prescription or grant, to any way or other easement … when the way … has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years shall be defeated or destroyed by showing only that the way … was first enjoyed at any time prior to the period of twenty years, but, nevertheless the claim may be defeated in any other way by which it is now liable to be defeated, and where the way … has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. How period to be calculated, and what acts deemed an interruption

32. Each of the respective periods of years mentioned in [section] 31 shall be deemed and taken to be the period next before some action wherein the claim … to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those sections, unless the same has been submitted to or acquiesced in for one year after the person interrupted has had notice thereof, and of the person making or authorizing the same to be made.

[26] Sections 31 and 32 do not displace the right to establish a prescriptive easement based on the doctrine of lost modern grant, which continues to exist in this province: Henderson v. Volk, at p. 382; MacRae v. Levy (2005), 28 R.P.R. (4th) 291 (Ont. S.C.), at para. 59; Graeme Mew, The Law of Limitations, 2d ed. (Markham, Ont.: LexisNexis Canada Inc., 2004), at p. 237. Moreover, the nature of the enjoyment necessary to establish a prescriptive easement under the doctrine of lost modern grant is precisely the same as that required for a prescriptive easement under the statute: Henderson v. Volk.

Characteristics of Prescriptive Easements

[27] To establish a prescriptive easement of either kind, the user must first meet the four essential characteristics of an easement at common law, namely:

a) there must be a dominant and servient tenement;

b) an easement must accommodate the dominant tenement;

c) the dominant and servient owners must be different persons; and d) a right must be capable of forming the subject matter of a grant.

[28] In addition, for an easement to be created by prescription, the user of the alleged right (for the applicable time period) must be shown to have been (i) continuous, and (ii) "as of right".

[29] Here, there is no real issue that the proclaimed easement meets the four essential criteria of an easement at common law, or that the use of the driveway by Mr. Kaminskas and his predecessors was continuous. The appeal hinges on whether the user was "as of right".

[30] User "as of right" means that the use has been uninterrupted, open, peaceful and without permission for the relevant period of time. It is often described using the Latin maxim nec vi, nec clam, nec precario (i.e., without force, without secrecy, and without "precario"). "Precario" in this sense is taken to mean "[t]hat which depends not on right, but on the will of another person": Burrows v. Lang, [1901] 2 Ch. 502, at p. 510, cited in Jonathan Gaunt Q.C. & Paul Morgan Q.C., Gale on Easements, 17th ed. (London: Sweet & Maxwell Ltd., 2002), at para. 4-82. Nec precario, therefore, means "without permission." Differences between Prescriptive Easements under Statute and Lost Modern Grant

[31] There are three important differences between a prescriptive easement arising by statute and a prescriptive easement arising by lost modern grant, however. First, in order to establish a prescriptive right by statute, it is necessary for the user to have been continuous, uninterrupted, open, peaceful and without permission for a period of 20 or 40 years immediately preceding the commencement of the action or assertion of the claim – in the language of s. 32, during the 20 or 40-year "period next before some action wherein the claim … to which such period relates was or is brought into question" (emphasis added). For the right to accrue under the doctrine of lost modern grant, however, the requisite user need not be for the period "next before" the action, but may exist during any uninterrupted 20-year period or longer.

[32] While the "next before" requirement may give rise to unfairness in some circumstances, there are policy reasons founded in the need to promote certainty and stability in conveyancing law that support its existence. As the authors of a leading text, Robert Megarry & William Wade, The Law of Real Property, 6th ed. by Charles Harpum (London: Sweet & Maxwell Ltd., 2000), observe, at p. 1138, footnote 76: It should be noted that, for all its shortcomings, prescription under the Prescription Act 1832 is, from a conveyancing point of view, preferable to prescription by lost modern grant. Because it has to be exercised without interruption "next before some suit or action", it may be easier for any purchaser of the servient tenement to discover. If an easement has been acquired by lost modern grant … [a] purchaser may be bound by it even though he could not have discovered its existence.

[33] In addition, the "next before" requirement under the legislation confines the courts review to a relatively recent period of time, when the evidence will be easier to obtain and evaluate, and therefore may be preferable to the lost modern grant regime for that reason: see U.K., "Easements, Covenants and Profits à Prendre", The Law Commission Consultation Paper No. 186, (2008), at p. 80, para. 4.213.

[34] Secondly, a statutory claim to a prescriptive easement based on 40-years' user can be defeated by permission only where that permission was given in writing. This is established by the closing words of s. 31, which, for convenience, I repeat: [W]here the way … has been so enjoyed for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

[35] Under the statute, a 40-year right will not be considered permissive ("precario") unless it is enjoyed by written permission. However, claims to a prescriptive right based on the doctrine of lost modern grant (or with respect to the statutory right based on 20 years' user) can be defeated by consent or permission, whether written or oral.

[36] Finally, it is noteworthy that the 40-year concept is a creature of the statutory prescriptive right. It has no application to the doctrine of lost modern grant, which requires only an appropriate user of 20 years or more without permission.