What is the test for partitioning a tenancy in common of land and fishing privileges?

New Brunswick, Canada


The following excerpt is from McQuaid v. Underhill, 2014 NBQB 87 (CanLII):

A helpful New Brunswick decision for partition of a tenancy in common of land and fishing privileges is that of Lehman v. Hunter (1939) 13 M.P.R. 553. The parties in that case were owners as tenants in common of an undivided interest in four hundred acres of land along the Restigouche River with fishing and riparian rights for over 20 years. A lodge had been built on part of the property. Considering the nature of the property and that it was almost exclusively a fishing privilege, the court found that it would be difficult and practically impossible to make a satisfactory physical division. Sale was ordered subject to an accounting for money spent on improvements and division of the proceeds.

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