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Can a Judge Relocate a Right-of-Way in the Interests of Justice?

In a recent Nova Scotia Court of Appeal decision, the court confirmed that a legal right-of-way cannot simply be re-located by a court, even if it appeared that it would benefit the interests of justice to do so.

The case involved two neighbouring landowners: the Sheas on one side, and the Bowsers on the other. Pursuant to a deed that had been registered years earlier, the Sheas enjoyed a right-of-way over the Bowsers’ property, pursuant to an express grant.

When a dispute arose as to the precise location of that right-of-way, the parties agreed to go to court to have it settled and to have a declaration made accordingly. But, after using expert survey evidence to make a finding of fact on that narrow point, the judge took the liberty of going one step further: he declared the right-of-way to be relocated to a different spot on the Bowser property, based on his assessment of the “interests of justice”. These included the fact that the deeded right-of-way was not being maintained, had become overgrown in areas, and was no longer passable by cars. Plus, a new road had been established over the Bowser property in a different location, which the judge felt the Sheas could use instead. With all of that in mind, he declared it to be of “questionable benefit” to re-establish the right-of-way in the original spot.

The Sheas appealed this decision on the basis that the judge had no legal or statutory authority to relocate the right-of-way and that his attempt to do so was a reversible error.

The Appeal Court agreed. It began by observing that in making the purported ruling, the judge failed to identify any legal principles to support a judicial authority to relocate a right-of-way; his attempt to do so flew in the face of established legal principles. For example, even if the right-of-way was found to be impassable, in law, the Sheas only unilateral recourse would be to assert their rights to have it re-opened through repair or reconstruction; they would not have the right to use other areas of the Bowsers’ land instead.

Here, it was true that the existing location of the right-of-way was more invasive to the Bowsers and that there might be practical reasons to want to relocate it elsewhere, but to actually do so was beyond the judge’s authority. Unless there was a mutual agreement to relocate, abandon, or extinguish the right-of-way (none of which were at play here), the Sheas had a legal right to have and enjoy the right-of-way in its original location on the Bowsers’ land.

See Shea v. Bowser Estate, 2016 (NSCA).