What is the test for easement to accommodate a dominant tenement?

Ontario, Canada


The following excerpt is from Hutchings v. Li, 2001 CanLII 7576 (ON SC):

The easement must accommodate the dominant tenement, and in accommodating the dominant tenement, it must be reasonably necessary for the better enjoyment of that tenement. Re: Ellenborough Park [1955] 3 All. E.R. 667. On these facts will it be found that the use of this path “accommodates” the land or provides merely a personal advantage (short-cut) to its occupant? ’The enjoyment as a right’ must mean enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occasion or even on many occasions of using it; but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use it without danger of being treated as trespasser, as a matter of right. Adams v. Fairweather, (1907) 13 O.L.R. 490 (Mulock C.J.)

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