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Express Grants of Easement

. Oakville (Town) v. Sullivan

In Oakville (Town) v. Sullivan (Ont CA, 2021) the Court of Appeal stated principles for interpreting an express grant of easement:
[14] In evaluating whether there is an actionable encroachment on an easement created by express grant, the court first determines the nature and extent of the easement by interpreting “the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created”: Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10; see also Raimondi v. Ontario Heritage Trust, 2018 ONCA 750, 96 R.P.R. (5th) 175, at para. 11.
. Markowski v. Verhey

In Markowski v. Verhey (Ont CA, 2020) the Court of Appeal considered the use to which an express easement may be put:
[26] A right-of-way created by express grant is an easement that allows the grantee and their successors in title to cross the grantor’s land for a purpose related to the better enjoyment of the grantee’s land: Anne La Forest, Anger & Honsberger Law of Real Property, loose-leaf, 3rd ed. (Carswell, 2006), at §17:20.30(a).

[27] The “nature and extent of a right-of-way depends on the proper construction of the language of the instrument creating it”: Canadian Pacific Ltd. v. Paul, 1988 CanLII 104 (SCC), [1988] 2 S.C.R. 654, at p. 671.

(1) The Words in a Grant

[28] The first step in determining the rights that form part of a right-of-way is to interpret the grant according to the intention of the parties based on the words themselves: Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10; Smith v. Morris, 1935 CanLII 56 (ON CA), [1935] 2 D.L.R. 780 (Ont. C.A.), at p. 782.

[29] The grant of an express easement may also include ancillary rights provided they are reasonably necessary to use or enjoy the right-of-way. However, to imply a right ancillary to a right-of-way, “the right must be necessary for the use or enjoyment of the easement, not just convenient or even reasonable”: Fallowfield, at para. 11.[30] In Boone v. Brindley (2003), 2003 CanLII 20920 (ON CA), 179 O.A.C. 50 (C.A.), at para. 2, this court held that to determine what is reasonably necessary to the enjoyment of a right-of-way, one should also look at:
the language of the conveyance creating the easement, the purpose and circumstances surrounding the creation of the right of way, the history of its development and the circumstances of its use.
[31] The grant of a right-of-way in this case reads as follows:
TOGETHER WITH A RIGHT OF WAY, in common with all others entitled thereto, for all the usual purposes, in, over, along and upon ALL THOSE PARTS of Broken Lot 10 in Concession 12 of the said Township of Chaffey, designated Parts 1 and 6 on a plan of survey on deposit in the Registry Office for the Registry Division of the District of Muskoka as RD-999. [Emphasis added.]
(2) Determining the Purpose of the Grant of the Right-of-Way by Examining the Historic Use and Circumstances

[32] Where the words in the grant of the right-of-way are unclear, the historic use and circumstances surrounding the use of the property subject to the easement are particularly important to understand the nature and extent of the rights conveyed: Square-Boy Limited v. The City of Toronto, 2017 ONSC 7178, at para. 33; Laurie v. Winch, 1952 CanLII 10 (SCC), [1953] 1 S.C.R. 49, at p. 56.
. Grunwald v. Le Marchant

In Grunwald v. Le Marchant (Ont CA, 2020) the Court of Appeal agreed with a lower court judge on the informality required for an easement agreement:
[7] We do not accept this submission. On this issue, the application judge said:
[I]t is not necessary to use any particular words to create an easement so long as the words used show an intention to create an easement that is recognized in law. Where, on the face of the deed there appears a manifest intention to create an easement, that intention will be given effect if the words of the deed can bear that construction.

In the immediate case, the Right-of-Way Agreement states that it is “for the use and benefit of the owners and occupants from time to time of the house and lands immediately adjoining thereto on the North and South thereof”, which refers to 182 Wychwood and 180 Wychwood. The agreement indicates that the parties intended to create a right-of-way that would run with the lands and be binding on all successors in title to the two properties.

[8] We agree with this analysis and conclusion.
. de Jocas v. Moldow Enterprises Inc

In de Jocas v. Moldow Enterprises Inc (Ont CA, 2019) the Court of Appeal commented as follows on express grants of easement:
[13] As this court noted in Fallowfield v. Bourgault (2003), 2003 CanLII 4266 (ON CA), 68 O.R. (3d) 417 (C.A.), at para. 10:
Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created. This principle is set out in Halsbury's Laws of England, 4th ed., vol. 14 (London: Butterworths, 1980), at p. 26, para. 54:
The nature and extent of an easement created by express grant primarily depend upon the wording of the instrument. In construing a grant of an easement regard must be had to the circumstances existing at the time of its execution; for the extent of the easement is ascertainable by the circumstances existing at the time of the grant and known to the parties or within the reasonable contemplation of the parties at the time of the grant, and is limited to those circumstances.



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