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Limited Purpose of Easement Challenged

The Mihaylovs owned lakefront land on Sturgeon Lake, adjacent to a property without lake access, which was owned by the proprietor of a General Store. In the late 1960s, and with the consent of the then-owners, a galvanized steel pipeline had been buried along the entire length of the Mihaylovs’ property to allow lake water to be run to the Store owner’s lot. The Mihaylovs were fully aware of the pipeline’s existence when they bought the property in 2012.

That pipeline served to provide lake water to the Store for almost 50 years, before it sprung a leak in 2014.

The Store owner, claiming he was unable to contact the Mihaylovs (who only visited on weekends), trespassed onto their property and without their permission ran an above-ground PVC pipe to the lake. He later excavated part of the Mihaylovs’ land, again without their permission, to try to upgrade or repair the existing pipeline. When the Mihaylovs objected, the matter went before the court to resolve the resulting dispute.

The key issue was the extent to which the Store owner had a right to repair or replace the pipeline, even though it was on the Mihaylovs’ property.  This led the court to examine the wording and effect of an easement granted by the Mihaylovs’ predecessors in 1979, and which was registered on title to both properties.

Unfortunately, that 1979 agreement adverted only to a “Water Pipe Easement,” but did not specify its scope or extent. It stated that whoever owned the Store property “shall be able to leave the said water line in its present position, and to draw water from Sturgeon Lake.”

On these facts, and contrary to what a lower court judge had ruled, the Appeal Court found that the easement only permitted the previously-installed pipeline to be left in its present position; the Store owner was limited to making repairs, and only with the Mihaylovs’ consent.

The court considered the established legal test for granting an easement, and found all but one of the required elements were obviously present. The Four required elements essential to the grant of an easement being: (1) there must be a dominant and a servient tenement; (2) the easement must accommodate the dominant tenement; (3) the owners of the dominant and servient tenements 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.

It was the last element considered, which was of critical importance here and the Appeal Court confirmed that this last element was met as well.  The 1979 agreement entitled the owner of the dominant tenement to leave the pipeline in its present position in order to draw water from the lake.   This, the Appeal Court found, was sufficient to constitute an easement in law.

But, from a practical legal standpoint, the lower court judge misinterpreted the scope and effect of that valid easement.  It only granted the Store owner the right to leave the pipeline in its present position and to draw water; it did not give him the right to install a new pipelineor replace the existing one.

Finally, the court pointed out that a so-called “right to repair” which was also embodied in the 1979 agreement and which the Store owner had relied on in trespassing on the land, was actually not a “right” given by the Mihaylovs. Instead, its wording suggested that it amounted to a promise by the adjacent landowner to repair the pipeline while respecting the rights granted under the easement.  It did not give the Store owner independent rights to make repairs and possibly inflict damage to the property.

The Appeal Court overturned the prior ruling, confirmed the validity of the easement and declared that its effect was only to allow the pipeline to be left in its current position. The Store owner was allowed to enter on the Mihaylovs’ land for the limited purpose of repairing the pipeline, but only if they expressly agreed in advance and acquiesced to the nature of the repairs.  The court also ordered that the PVC line was to be removed, and forbade the Store owner from trespassing onto the Mihaylovs’ land in the future. See Mihaylov v. 1165996 Ontario Inc. 2017 ONCA 116.