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Facts[]

Malden Farms and Nicholson were neighbours on Lake Erie. The predecessors in title of Malden Farms had granted the Nicholson's predecessors in title a right of way easement that overlapped an existing right of way easement that had been granted previously. The second easement, the one at issue here, was made subject to the initial easement.

Now, the Nicholsons have opened a resort business on their property, and the right-of way is being used heavily by patrons of the resort. Malden Farms now argues that the burden of the easement has been markedly increased. They request an injunction to restrain Nicholson's use of the the right of way easement on the grounds that their use of it exceeds the scope of the right granted.

Issue[]

Does Nicholson's commercial use of the easement exceed the scope of the right of way easement?

Decision[]

Appeal dismissed: the scope of the grant does not allow this markedly increased burden on the servient tenement.

Reasons[]

Aylesworth, delivering the judgement of the court, says that that the heavy commercial traffic exceeds the scope of the easement. The rights granted by an easement depend on the intentions of the parties at the time the grant was created, based on the wording of the grant in light of the surrounding circumstances (Laurie v Winch).

In particular, the easement was expressly made subject to a prior right of way easement. Given the expansive rights granted by the initial easement, the subsequent easement on which Nicholson relied would presumably grant a more limited right, since we infer it was not intended to derogate from the broad rights conferred by the initial easement.

This distinguished the case from the holding in Laurie v Winch. In that case, the Court found that the parties had contemplated changes in land use that would increase the burden on the servient tenement; this meant redevelopment of the dominant tenement from a farm into a residential development was still within the scope of the grant. An increase on the burden on the servient tenement was unacceptable for Nelson's easement because this was not within the contemplation of the granting parties at the time of the grant; it was a more limited private right of way, whereas Nicholson's commercial use essentially was comparable to treating the right of way as a public highway or busy toll road.

Ratio[]

  • If the use of an easement develops far beyond the original intent of the granting party, then the excessive use of the easement can be restrained by injunction.
  • When deciding if use of an easement is within the scope of the grant, courts will look to the intentions of the parties at the time the grant was created, based on the wording of the grant in light of the surrounding circumstances.
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