THUNDER BAY — A deal struck by two north shore camp lot owners more than 50 years ago shows what a Superior Court judge describes as "the folly of the do-it-yourself approach"’ to agreements involving land.
Families involved in the case ultimately had a falling out, leading them to court, where Justice F.B. Fitzpatrick ruled this month that one of the parties had no entitlement to continued use of a road through the other’s property.
In 1968, two men ("X" and "Y") agreed verbally to share the cost of a road to access their newly-acquired abutting lakeside lots in the Schreiber area.
Because the terrain included a steep embankment, they chose a route that began on X’s lot, crossed over to Y’s parcel, then switched back to X’s property.
Neither man consulted a lawyer or a land surveyor to formalize the arrangement.
The deal worked well for more than two decades, even after X had sold his land to another party (“Z”).
When title was transferred, there was no documented reference to the road-sharing agreement, but both Y and Z continued to honour it until 1992, when there was a falling-out over maintenance of the road.
At one point, Y dug a trench across the road on his property, thereby obstructing Z's vehicular access to the part of his lot below the embankment.
Z's parcel is not landlocked. The upper portion could still be reached by vehicle, but the lower portion – where the dock is – could not.
However, Z responded to Y's move by chaining off the entrance to the road that was on Z's lot, causing the Y family to build a new entrance entirely on their own property.
Subsequently, Z resumed use of the disputed portion of the road by driving vehicles around the obstruction on Y's lot.
There was no interaction between the families from 1992 until 2015, when the dispute came to a head once again.
After another member of the Y family took over title to their property, Z asked permission to use the road to bring some things down to the lower portion of her lot.
The request was granted on a one-time basis, after which the new owner placed sawhorses across the road.
When someone removed the sawhorses, she had the road dug up, and had I-beams placed in the trench to prevent vehicles from driving through.
She also had the OPP serve a no trespass notice on Z.
Z then applied for a court order that she and her successors were entitled to travel through the neighbour's lot on the basis of the doctrine of proprietary estoppel.
Proprietary estoppel can be used to award an interest in land, such as an easement, where a court decides it would be unconscionable for the title holder to deny a claimant's entitlement.
Judge Fitzpatrick ruled that the doctrine does not apply in this instance.
He also determined that the 1968 agreement between the original owners was a personal arrangement between X and Y only.
"The continued use of the [road] was contingent on the neighbours continuing to get along and to mutually contribute to its upkeep," the judge said.
The agreement "did not create an easement for either party over the lands of the other."
Judge Fitzpatrick noted that the two men had not planned for the long term, saying "This is an important fact. Courts are reluctant to imply or impose contractual terms which have the potential to overreach the boundaries the parties set for themselves in deciding to agree to whatever they decide to agree to."
He said that if the parties had sought timely legal advise before taking all of the various steps that caused the conflict, "much of the heartache, upset and inconvenience could have been avoided."
Z's application was dismissed with court costs to be determined.
In a 2019 ruling connected to the same dispute, the judge also rejected Z's application for a declaration that she had a right to cross her neighbour's property under Ontario's Road Access Act.
He ordered that she pay her neighbour's court costs totalling $4,000.
