Is a right-of-way granted to a servient tenement that has never been used for the purpose of driving a motor vehicle?

Ontario, Canada


The following excerpt is from West High Development v. Veeraraghaven, 2011 ONSC 1177 (CanLII):

In Smith v. Morris, supra, a ten foot right of way had not been used due to the topography. At paras. 11-13, Masten J.A. provided this analysis: 11 In the present case the words granting the right-of-way to the defendant are general. The defendant’s lot is occupied as a dwelling-house and the right-of-way from Cortland Street is, under the circumstances, to be such as will satisfy the ordinary requirements of approach to the rear premises of a dwelling, and under present habits of life in the City of Toronto would include the right to bring an automobile to a garage at the rear of the defendant’s premises. 12 While the burden imposed on the servient tenement is not to be increased by the action of the owner of the dominant tenement, regard must be had to the fact that the predominant idea is that the dominant tenement shall really enjoy the easement granted not as a mere theoretical right on paper, but by a real physical enjoyment of the right conferred. 13 In the present case the plaintiffs have heretofore used the surface of the right-of-way as a part of their garden and appear to desire to continue that practice which would be naturally inconsistent with the use of any kind of a right-of-way. I observe, further, that there is a substantial difference between the grant of a right-of-way that has been in use for years, and is settled and defined or even the use of a new right-of-way that is just completed and ready for immediate use, and the case of a broad general grant of a mere right of way over lands that have never been used for that purpose and which cannot be so used till the way over them is constructed. In the latter case it is plain that the right granted carries with it by implication the right to do what is necessary to make the way feasible for the purposes intended. The predominant right of the grantee to a practicable way is, in the circumstances here existing, superior to any claims of the owner of the servient tenement on the right-of-way proper. In the present case the southerly 10 feet of the plaintiffs’ lot have never been used as a way, and in the condition in which they stood were incapable of such use, at least by an automobile. Having regard, therefore, to the fact that the defendant’s easement was granted as accessory to a dwelling-house, and that the width is 10 feet, it is manifest that in 1926 or 1927 the way was intended for use by the defendant (if he so desired) to drive his automobile from Cortland Avenue to the lands where his dwelling stood, and I think that he is entitled, if he can do so without injury to the other lands of the plaintiffs, to make the way feasible for a motor and to establish such a grade as will permit him to bring his motor to the rear of his premises.

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