What is the test for a claim for an easement based on prescription under limitation statute or under the doctrine of lost grant?

Ontario, Canada


The following excerpt is from Mighton v. Palmer, 2021 ONSC 2275 (CanLII):

The theory behind a claim for an easement based on prescription under a limitation statute or under the doctrine of lost grant is that the evidence establishes that the owner of the servient tenement has with knowledge consented or acquiesced to the establishment of an incorporeal ownership interest in land by the owner of the dominant tenement as opposed to licensing the use of the land without conferring an ownership interest in it. Use by permission or license is insufficient for establishing a prescriptive easement. The theory was explained in Sturges v. Bridgeman… Consent or acquiescence of the owner of the servient tenement lies at the root of prescription, and of the fiction of a lost grant, and hence the acts or user, which go to the proof of either the one or the other, must be, in the language of the civil law, nec vi nec calm nec precario; for a man cannot, as a general rule be said to consent to or acquiesce in the acquisition by his neighbour of an easement through an enjoyment of which she has no knowledge, actual or constructive, or which he contests and endeavours to interpret, or which he temporarily licenses.

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