COURT OF QUEEN S BENCH OF MANITOBA

Date: 20181127 Docket: CI 18-01-13499 (Winnipeg Centre) Indexed as: Klimack et al. v. Kroeker et al. Cited as: 2018 MBQB 180 COURT OF QUEEN S BENCH OF MANITOBA BETWEEN: ) APPEARANCES: ) ALLEN RICHARD KLIMACK and ) Laura R. Minuk MARTHA KLIMACK ) for the Applicants ) Applicants ) Thomas G. Frohlinger and ) Jeffrey King (articling student) - and - ) for the Respondents ) Richard Kroeker and RICHARD KROEKER, ) Joanne Lagasse-Kroeker JOANNE LAGASSE-KROEKER and ) JOHN WILLIAM McCAUGHEY ) ) Judgment delivered: Respondents ) November 27, 2018 PERLMUTTER A.C.J.Q.B. Introduction [1] The applicants, Mr. and Ms Klimack, seek a declaration that they have acquired an easement by prescription over an access road or pathway on a portion of the cottage property owned by the respondent Mr. McCaughey known as lot 20 and on a portion of the cottage property owned by the respondents Mr. Kroeker and Ms Lagasse-Kroeker known as lot 21, so as to access and provide ingress and egress to the Klimacks cottage property known as lot 19, all in Penniac Bay, West Hawk Lake, in Whiteshell Provincial

Page: 2 Park. Lot 19 is directly adjacent to the west of lot 20 and lot 20 is directly adjacent to the west of lot 21. The access road branches off York Lane, which borders the east side of lot 21, and the access road runs east-west, crossing over lots 21, 20 and 19. West Hawk Lake is on the south of these lots. Valour Road borders the north side of these lots. Prior to the creation of the access road in around 1960, no direct vehicular access to lots 19 and 20 existed and vehicles parked off Valour Road at the north (the top) of these lots. Patrons used trails off Valour Road to descend approximately 40 to 50 steps to access the properties situated at the bottom of these lots. [2] Mr. Kroeker and Ms Lagasse-Kroeker oppose the Klimacks application, and Mr. McCaughey takes no position. Factual Background [3] The Klimacks have owned lot 19 since May 31, 1994. Prior to their purchase of lot 19, from August 10, 1959, William Obadiah Baizley and Jessie Anne Baizley owned it. Mr. McCaughey has owned lot 20 since April 23, 2008, with this lot first purchased by Mr. McCaughey s parents, Jack Samuel McCaughey and Ida Tessa McCaughey, on December 20, 1955, and then transferred to Ms McCaughey on November 29, 1983, upon Jack McCaughey s death. Mr. Kroeker and Ms Lagasse-Kroeker have owned lot 21 since January 7, 2011. Prior to their purchase of lot 21, from July 8, 1986, John and Genieve Fast owned it. Prior to the Fasts ownership, from April 15, 1958, Edward Taylor and Ethna Beryl Rosallen Taylor owned lot 21. [4] Mr. Klimack deposed that when they purchased lot 19 from the Baizleys, the Baizleys advised him that:

Page: 3 In around 1960, a road was created by the Baizleys, the McCaugheys and the Taylors to allow for direct vehicular access to lot 19, by crossing over both lot 20 and lot 21, and to lot 20 by crossing over lot 21. The Baizleys, the McCaugheys and the Taylors stipulated that only one vehicle could be parked at the bottom of each lot at a time. Other vehicles had to remain parked at the top of their respective lots off Valour Road. Apart from regular vehicular access to the property on lot 19, the purpose of the access road was to allow for direct emergency vehicular access, septic truck services and deliveries. The Baizleys, the McCaugheys and the Taylors made continuous and unrestricted use of the access road since its inception. [5] Mr. Klimack deposed that, for 23 years, since acquiring ownership of lot 19, he and Ms Klimack have made use of the access road on a continuous and unrestricted basis. On November 2, 2017, Mr. Kroeker and Ms Lagasse-Kroeker placed a boulder to block access to the access road, thereby preventing the Klimacks from driving up to their property on lot 19. [6] When Mr. Kroeker and Ms Lagasse-Kroeker purchased lot 21 from the Fasts, other than an unrelated caveat, lot 21 was free of any encumbrances and the Fasts provided a declaration as vendors that they knew of no easement, right-of-way... or other agreement affecting the said land. Mr. Kroeker deposed that: It was explained to him at the time he and Ms Lagasse-Kroeker wrote the offer to purchase lot 21 that the Fasts allowed the owners of lots 20 and 19 vehicular

Page: 4 use of the pathway cutting through lot 21. He understood that this was by neighbourly consent and not as a result of any formal arrangement. He further understood that the consent was to allow the crossing of lot 21 with one car per cottage. Shortly after he and his family moved into the property, he had a conversation with Mr. Klimack about the courtesy access of one car per cottage. Shortly after that conversation, Mr. Kroeker noted that Mr. Klimack s vehicle and another vehicle were both parked at the same time at the cottage site. After this, he approached Mr. Klimack at his cottage and had a conversation regarding this. Mr. Klimack advised him that it would not happen again and that there was not much room for two vehicles in any event. The deliveries and septic tank pump-outs can be accommodated from Valour Road in the manner that they were prior to the building of the pathway. He had no intention to resile from the permission granted for the use of the pathway. However, the relationship deteriorated to the point that he was of the view that the Klimacks were taking advantage of their kindness by abusing his family, breaching the longstanding agreements to only one car being allowed to access lot 19 at any one time and by making use of the pathway as a pedway for themselves, their family and their pets. This was never the intent of the permission granted and, as such, has caused him to withdraw the prior permission.

Page: 5 Law [7] The required elements of an easement were explained by the Manitoba Court of Appeal in Willman v. Ducks Unlimited (Canada), 2004 MBCA 153, 187 Man.R. (2d) 263, as follows (at para. 32): The parties are agreed on the required elements of an easement, which have long been recognized as each being essential, before an interest in land can be found to be an easement. As summarized by Evershed M.R., for the English Court of Appeal, in Ellenborough Park, Re, [1956] 1 Ch. 131, at p. 163, they are: (1) there must be both a dominant tenement and a servient tenement: (2) an easement must accommodate the dominant tenement: (3) dominant and servient owners must be different persons, and (4) a right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant. [8] In Gawaziuk et al. v. Gawaziuk et al., 2003 MBQB 226, 181 Man.R. (2d) 184, Bryk J., by reference to Stall et al. v. Yarosz et al. (1964), 43 D.L.R. (2d) 255 (Man. C.A.), and Capar v. Wasylowski and Wasylowski (1983), 21 Man.R. (2d) 194 (Q.B.), provided the following regarding an easement by prescription (at para. 28): That Decision [Stall] has been followed in numerous subsequent Manitoba cases including Capar v. Wasylowski and Wasylowski... There, Simonsen, J., examined the constituent elements or components of an easement by a prescription. Firstly, acquiescence by the servient tenement is required. In the case of acquiescence which creates a right-of-way, the necessary components are the following: the doing of some act by one man (the dominant tenement) upon the land of another (the servient tenement); the absence of the right to do that act; the knowledge of the person affected by it that the act is being done; the ability of the person affected by the act to prevent it either on his own or by the courts; and,

Page: 6 the abstinence by him from any such interference for such a length of time as renders it reasonable for the court to say that he shall not afterwards interfere to stop the act being done. [9] In Stokes v. Composite Holdings Ltd., 2008 MBQB 124, 235 Man.R. (2d) 185, Hanssen J. explained the law regarding prescriptive easement as follows (at paras. 12-13): The Prescription Act, 1832, 2 & 3 Will. 4, c. 71, became part of the law of Manitoba when the Province joined Confederation in 1870. Section 29 of the Law of Property Act, C.C.S.M., c. L-90, abolished the acquisition of prescriptive rights to light. In all other respects, however, the Prescription Act remains in force in Manitoba.... The major provisions of the Prescription Act are summarized in the Manitoba Law Reform Commission Report entitled Prescriptive Easements and Profits-à-Prendre, 1982, as follows: (i) The 20 year period The Act provides two different time periods for the creation of prescriptive easements: a 20 year period and a 40 year period. If an easement is actually enjoyed for a full period of 20 years it cannot be defeated by showing that there has been a period of non-user at any time since 1189. The common law defence respecting use since time immemorial is irrelevant, and 20 years' use will now suffice. The claim, however, may still be defeated by any of the other defences available at common law, ie. that it was not capable of forming the subject matter of a grant in the first place, or that it was exercised with force, secretly or by permission. The Act also provides that any time during the 20 year period in which the servient owner was an infant or mentally incompetent or a life tenant is to be excluded in the computation of the 20 years. (ii) The 40 year period If an easement has been enjoyed for a period of 40 years the Act deems it "absolute and indefeasible", unless it was enjoyed by consent or agreement made by deed or in writing. Periods of time during which the servient owner was an infant or mentally incompetent are not excluded in computing the 40 year period as they are in computing the 20 year period; however, a life tenancy will be excluded in computing the 40 year period as will a lease for more than three years. A claim based on the 40 year period is not defeated, as is the 20 year claim, if it was enjoyed by oral permission. However, a claim based on the 40 year

Page: 7 period may still be defeated if it can be shown that the user was forcible, secret or obtained by written permission. (iii) The need for litigation The 20 and 40 year periods referred to in the Act must, according to s. 4, arise immediately prior to the bringing of an action. The Act does not state that an easement is created after 20 or 40 years use; all periods referred to in the statute must precede litigation. As Megarry and Wade point out, it is... said that the right remains merely inchoate until action is brought. The important point is that the fruits of the act can be reaped only by a litigant. The effect of this is that if the 20 or 40 years enjoyment is proved only up until a time some years prior to the commencement of an action, the Act s requirements will not have been met. A claimant may, however, still be able to rely on the doctrine of the lost modern grant where the period of user is not tied to litigation. (iv) Interruption in use At common law or under the lost modern grant doctrine any interruption in the use made by the servient owner is relevant only to the issue as to whether or not the use has been as of right. However, s. 4 of the Prescription Act requires that the period of use be without interruption. No act is deemed to be an interruption unless a dominant owner has submitted to it or acquiesced in it for one year. The essential factor is not the obstruction or interruption as much as the acquiescence in it. [underlining in original; bold italics emphasis added] [10] The Manitoba Law Reform Commission Report further provides the following regarding prescriptive easements (at p. 6): When a court does uphold a prescriptive easement, the servient owner loses rights in his property despite the fact he has never formally agreed to the loss. There are therefore several strict requirements which must be met before the court will presume the grant of such an easement. The claimant must show that he has made use of the right as if he were entitled to do so, otherwise the court cannot presume that it is being enjoyed under a grant. Enjoyment must be without force, without secrecy and without permission (nec vi, nec clam, nec precario)....

Page: 8 Parties Positions [11] It is the Klimacks position that from 1960 to November 2, 2017, there was continuous and open use of the access road without interruption and without permission until Mr. Kroeker and Ms Lagasse-Kroeker blocked the use of the access road. It is the Klimacks position that the prescriptive easement requirements have surpassed the 20 and 40 years requirements and there is no evidence of oral or written permission. [12] It is the position of Mr. Kroeker and Ms Lagasse-Kroeker that in 1960, the Baizleys, the McCaugheys and the Taylors agreed to construct the access road and to allow each other access on the road, but that this was conditional upon one car being parked on each property. This was a neighbourly accommodation and use of the roadway was not a matter of right, but was by consent and a permissive arrangement. It is their position that it is not possible to have a conditional easement (one car being parked on each property) and, as such, the agreement to construct the road is personal and cannot run with the land. That is, the agreement is not binding on successors in title and each successive owner must renew their consent. It is also the position of Mr. Kroeker and Ms Lagasse-Kroeker that in order for a prescriptive easement to ripen, there must be one dominant tenement and one servient tenement and that the Klimacks claim to a prescriptive easement over three different legal parcels of land with three different sets of registered owners is not consistent with the requirements of an easement. Analysis [13] I find that the Klimacks have established a prescriptive easement over the access road.

Page: 9 [14] The Klimacks are the owners of the dominant tenement (lot 19) and enjoy the benefit of the access road, which, in part, runs through the respondents land as the servient tenements (lots 20 and 21). The access road accommodates the dominant tenement by allowing direct vehicular access to lot 19. There is no dispute that the dominant and servient landowners are different people. There is also no evidence that the use of the access road was forcible, secret or obtained by written permission. That is, I am satisfied that there has been a continuous, uninterrupted, open and peaceful use of the access road. [15] I turn to the question of whether the owners of the servient tenements otherwise acquiesced in the use of the access road, as opposed to the use of the access road being by oral permission, by consent or a neighbourly accommodation. [16] I find that use of the access road was not dependent on the consent of the owners of the servient tenements. In my view, the evidence is clear and unambiguous that the access road use was of such a nature as to indicate to the owners of the servient tenements that a right was being claimed. [17] To begin, the participation of the Taylors (lot 21) and the McCaugheys (lot 20) in actually building the access road, in my view, demonstrates acquiescence by the owners of the servient tenements to the use of the access road on a permanent basis. [18] The Klimacks use of the access road was akin to the use of their predecessors in title dating back approximately 57 years, which, I accept Mr. Klimack s evidence, was to gain direct vehicular access to lot 19 for personal use, whatever it was, including septic service, deliveries and personal vehicles.

Page: 10 [19] Mr. Klimack s evidence is corroborated by Brian Earl Baizley, who is the son of Mr. and Ms Baizley (who both passed away in 2001) and was age 12 when the Baizleys became the registered owners of lot 19. Brian Baizley deposed that upon construction of the access road around 1960, Mr. and Ms Baizley made continuous use of it to access lot 19, and over the years he also observed the McCaugheys using the access road on a continuous basis to access lot 20. Brian Baizley further deposed that when the Taylors transferred title to the Fasts, Mr. and Ms Baizley continued to use the access road on a continuous and uninterrupted basis. [20] Mr. Klimack s evidence is corroborated by Barbara Marie McMullen, who is the sister of John McCaughey and the daughter of Jack and Ida McCaughey (who have both passed away). Ms McMullen was age eight when Mr. and Ms McCaughey became the registered owners of lot 20. Ms McMullen deposed that upon construction of the access road around 1960, she observed Mr. and Ms McCaughey make continuous use of the access road to access lot 20, and over the years she also observed the Baizleys (as the previous owners of lot 19) using the access road on a continuous basis to access their property on lot 19. [21] Mr. Klimack s evidence is also corroborated by Ms Fast, who deposed that when she and Mr. Fast purchased lot 21 in 1986 from the Taylors, Ms Fast was advised by Ms Taylor that the purpose of the access road was to create a direct vehicular path to lots 20 and 19. Ms Fast deposed that during her ownership of lot 21, she observed that the McCaugheys and the Baizleys made continuous and uninterrupted use of the access road to gain access to their properties (lots 20 and 19). As well, Ms Fast deposed that

Page: 11 when the Klimacks acquired title to lot 19 in 1994, Ms Fast observed that the Klimacks made continuous and uninterrupted use of the access road to gain access to their property. In the cross-examination evidence of Ms Fast on her affidavit, she testified that she did not believe that she or Mr. Fast could stop the owners of lot 20 (the McCaugheys) from crossing their property (lot 21). [22] When the Fasts sold lot 21 to Mr. Kroeker and Ms Lagasse-Kroeker, the offer to purchase included the statement purchasers are fully aware of 2 neighbour cottages allowance to cross subject property with 1 car per cottage. I agree with the Klimacks counsel that this wording is inconsistent with a permissive arrangement. Indeed, on cross-examination, counsel to Mr. Kroeker and Ms Lagasse-Kroeker did not challenge Ms Fast s affidavit evidence that the Fasts instructed Paul Duncan, who was the realtor involved in the sale of lot 21 from the Fasts to Mr. Kroeker and Ms Lagasse-Kroeker, to include a term that made mention of the access road as a condition to any offer to be submitted in connection with the sale of lot 21. [23] As noted, in Mr. Kroeker s affidavit, he deposed that it was explained to him at the time that he and Ms Lagasse-Kroeker wrote the offer to purchase lot 21 that the Fasts allowed the owners of lots 20 and 19 vehicular use of the pathway cutting through the property and he understood that this was by neighbourly consent and not as a result of any formal agreement. However, on cross-examination on his affidavit, Mr. Kroeker testified that it was Mr. Duncan who said to him that Mr. Fast had given the McCaugheys and the Klimacks permission regarding use of the access road. As hearsay evidence and

Page: 12 with no indication of any attempt to adduce affidavit evidence from Mr. Duncan on such a significant and substantial issue, I give little weight to this evidence. [24] As also noted, Mr. Kroeker deposed in his affidavit that shortly after he moved into his property, he had a conversation with Mr. Klimack about the courtesy access of one car per cottage. On cross-examination on his affidavit, Mr. Kroeker further testified that upon Mr. Klimack and Mr. Kroeker introducing themselves to each other, Mr. Klimack asked him if he was aware of the permission to access the Klimacks cottage and Mr. Kroeker said, If you are nice neighbours and it s limited to one car, then I will continue to allow that. However, the notion of permission to access the Klimacks cottage by the access road (which is different than the question of access of one car per cottage) was not raised in Mr. Kroeker s affidavit regarding his conversation with Mr. Klimack and only arose for the first time on his cross-examination. Mr. Kroeker s evidence regarding this conversation was not presented to Mr. Klimack on cross-examination so as to permit Mr. Klimack an opportunity to respond as contemplated by the rule in Browne v. Dunn (1893), 6 R. 67 at 76-77 (H.L.). Again, with this evidence being relevant to such a significant and substantial issue, in these circumstances, I give little weight to it. [25] Counsel for Mr. Kroeker and Ms Lagasse-Kroeker referred to an incident when the Klimacks were doing construction on lot 19 and Ms McCaughey (of lot 20) became upset that a truck blocking her access was too big to come down the access road as evidence that Ms McCaughey felt that she could withdraw her consent to the crossing of her land. However, in my view, being upset about a truck blocking access and potentially using the

Page: 13 road because of its size is not evidence that this was a consent-based situation. In any event, as argued by the Klimacks counsel, if this was, in fact, an interruption in use of the pathway, to be salient, it would have to be demonstrated that the Klimacks (as the dominant owners) submitted to, or acquiesced in, this interruption for a period of one year (Stokes, para. 13). [26] I do not accept the argument by counsel for Mr. Kroeker and Ms Lagasse-Kroeker that each successive owner was required to renew their consent to use the access road as there is no credible evidence of periodic renewal of permission as the lot owners changed. Similarly, assuming that at the time of the access road s construction in 1960, oral permission was given to construct the access road, there is no evidence that this consent was qualified as to time. Moreover, following any such consent, for the requisite period, the use by the owners of the dominant tenement has been as of right for the reasons previously discussed. There is no credible evidence at any time during the salient period of vitiation of any such consent, permission asked and granted, or acknowledgment by the dominant owner that the use was not as of right, so as to prevent the acquiring of a prescriptive right. [27] I turn now more specifically to the arguments by Mr. Kroeker and Ms Lagasse- Kroeker that the arrangement that the access road be limited to one car per cottage results in a conditional easement incapable of forming the subject-matter of a grant and that this one-car limit is evidence of a consensual arrangement. [28] Both Brian Baizley and Ms McMullen deposed that when the access road was constructed by the Baizleys (lot 19), the McCaugheys (lot 20) and the Taylors (lot 21), it

Page: 14 would allow for each lot owner to park one vehicle at the bottom of each property and any other vehicle would stay at the top of their respective lots off Valour Road. Similarly, Mr. Klimack deposed that he was advised by the Baizleys that in addition to allowing for vehicular access to the property on lot 19, the Baizleys, the McCaugheys and the Taylors stipulated that only one vehicle could be parked at the bottom of each lot at a time. Other vehicles had to remain parked at the top of their respective lots off Valour Road. [29] While this parking arrangement may have been part of the reasoning for how the road came to be constructed, the right to a prescriptive easement emerges out of acquiescence on the part of the servient owner. As I previously indicated, the participation of the Taylors (lot 21) and the McCaugheys (lot 20) in actually building the access road, in my view, reflects acquiescence by the owners of the servient tenements to the use of the access road. Based on the evidence, over the years of its use, the access road has been for general access, including personal vehicles, septic truck services, deliveries and emergency vehicles. No evidence was put forward by Mr. Kroeker and Ms Lagasse-Kroeker that they objected to the Klimacks use of the access road for septic tank services or deliveries, nor was there any evidence of the previous owners objecting to the use of the access road by lot 19 in this manner. The prescriptive easement arises because the Klimacks have demonstrated a continuous, uninterrupted and open use of the access road and, for the reasons set out above, without permission. They have demonstrated acquiescence on the part of the servient owners. To the extent that there is some evidence regarding one car per lot, in my view, none of this evidence

Page: 15 indicates that the access road was being used by permission so as to defeat a prescriptive easement. [30] In my view, the issue of how the access road is used is a question of whether its use is reasonable or excessive. For example, does crossing the access road with more than one vehicle per cottage or using it as a pedway or for pets (all of which are concerns raised by Mr. Kroeker in his affidavit) constitute an excessive use? The unreasonable or excessive use of an easement, particularly for a use or purpose not exercised in acquiring the easement, may give rise to an action, for example in trespass. See Estey et al. v. Withers et al. (1974), 48 D.L.R. (3d) 121 (N.B.S.C. (A.D.)). However, this issue is not before me on this application. [31] Finally, I have considered the position of Mr. Kroeker and Ms Lagasse-Kroeker that it is not possible for the Klimacks to have an easement over two servient tenements. No authority was filed by Mr. Kroeker and Ms Lagasse-Kroeker which expressly supports this position. As argued by the Klimacks counsel, Trotter v. Ball, 2011 ONSC 1253, 3 R.P.R. (5th) 140, is an example of multiple tenements being considered in the context of a prescriptive rights adjudication. In the alternative, I agree with the Klimacks counsel that if it is impossible, at law, to have an easement over two servient tenements, given the circumstances as a whole, it is appropriate to declare that the Klimacks have two prescriptive easements respecting the access road: one easement over lot 20 and one easement over lot 21.

Page: 16 Conclusion [32] In conclusion, I am satisfied that the Klimacks have met their onus of proof as the owners of the dominant tenement. It is my view that the owners of the servient tenements acquiesced in the use of the access road in the salient timeframes. I find that use of the access road was not dependent on the consent of the owners of the servient tenements and that the Klimacks demonstrated a continuous, uninterrupted, open use of the access road without permission. While I appreciate that the threshold for meeting requirements of a prescriptive easement is significant in light of the concern that a landowner s neighbourly accommodation may ripen into an easement without compensation, I find the use of the access road to be as of right for the reasons discussed. Accordingly, I am granting the Klimacks the declaration that they seek. [33] In arriving at this conclusion, I note that the issue of how the access road is used is a question of whether its use is reasonable or excessive. The unreasonable or excessive use of an easement, particularly for a use or purpose not exercised in acquiring the easement, may give rise to an action, for example in trespass. While this issue is not before me on this application, I expect that it will be kept in mind. [34] If costs may not be agreed upon, I will receive written submissions. A.C.J.Q.B.