Inference of effective exclusion arose from use of house lands which included erection of permanent home

Property owner’s mother and neighbours each purchased adjoining country properties in 1980s. In 1990, mother added stepfather as owner, and in 2007 she sold property to her son (property owner). In 2008, neighbours accidentally discovered encroachments. In 2010, property owner brought successful action claiming possessory title to house lands, cedar trail, and laneway for which neighbours held paper title. Neighbours appealed. Appeal allowed in part. Trial judge’s finding of prescriptive easement over cedar trail was set aside. There was no error in trial judge’s finding that possession of house lands was adverse. Trial judge’s reasons concerning accommodation of dominant tenement and continuous use with respect to cedar trail could not be sustained. It was open to trial judge to make order permitting maintenance of laneway. It was open to trial judge to conclude that inference of effective exclusion arose from nature of neighbour’s use of house lands, which included erection of permanent home. Trial judge erred by failing to properly consider whether continuous use she found with respect to cedar train met criterion of accommodating dominant tenement.

Majewsky v. Veveris (2018), 2018 CarswellOnt 17536, 2018 ONCA 848, Janet Simmons J.A., B.W. Miller J.A., and Fairburn J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 15872, 2016 ONSC 5608, M.J. Donohue J. (Ont. S.C.J.).