Can a servient tenement owner unilaterally reduce the territorial scope of their right of way?

New Brunswick, Canada


The following excerpt is from Crowther v. Shea, 2005 NBCA 97 (CanLII):

In brief, Voye v. Hartley establishes the general proposition that the owner of the servient tenement is not entitled to unilaterally reduce the territorial scope of the right of way enjoyed by the owner of the dominant tenement. The rule makes eminent good sense, and for obvious reasons. For example, if I were to grant you a 48 foot right of access to your lands, it would be unreasonable to expect that on the following day I could turn around and validly rewrite the grant by unilaterally reducing its width to 13 feet. If in fact only 13 feet were needed for purposes of gaining access to the lot, one would presume that the grant of the right of way would have so specified. In the present case, the respondents effectively seek to rewrite the terms of the grant. They acknowledge the existence of a 47.8 foot right of way, but now seek to appropriate 25 feet for their personal use. This they cannot do. The appellants have a legal right to expect that if the right of way were developed, it would be developed as a public street, as originally contemplated.

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