When a grant is valid but not specific about what may be constructed, even if the grant does not specify what can be built on the land, does the grantee have to be an excessive user?

As can be seen from the excerpt above, even when the grant is valid but not specific about what may be constructed, there is still the requirement that any construction be reasonable and not amount to an “excessive user”. This is a logical corollary from the principle that a valid easement cannot grant exclusive use of the land or be incompatible with the continued property rights of the servient owner. A classic statement of the principle of excessive user is found in Stephens v. Gordon (1893), 1893 CanLII 4 (SCC), 22 S.C.R. 61, where Sedgewick J. stated at p. 99: The result of the cases I think is this, that where no way is specified in the instrument of grant the grantor may assign a way, but that way must be a reasonable one -- a way that will enable the grantee to enjoy, in a reasonable manner, the thing granted. If the grantor does not assign a way, or if he assigns a way that is unreasonable, the grantee may select a way, a way that is "most direct and convenient," for himself, but one, the use of which will not unreasonably interfere with the grantor in the enjoyment of his rights upon the servient tenement. And, finally, questions of this character are not questions of law, but of fact, to be determined by the jury upon evidence.