Sep 01, 1993

Mutual Rights of Way #206


By Gerry Neely
B.A., LL.B.

How much force can an owner use to prevent the unauthorized use by a neighbor of a road through the owner's property?

Laurel owned a large piece of land which had a lower and upper road running through it which provided access to Laurel's neighbor to the east, and to his neighbors to the north respectively. Hardy bought the property to the east knowing that he only had a right of access over the lower road, with the intention of building a house on the upper part of his lot.

The upper road provided better access because of the steep terrain between the lower road and the higher building site. Through an exchange of letters between lawyers, Laurel granted Hardy the use of the road for four months for home construction purposes only. When that period ended, Hardy had his lawyer prepare an easement for permanent use of the road, which he continued to use pending a decision.

Laurel's decision became apparent to Hardy when Laurel placed a sawhorse on the road. A pushing and shoving match arose between the two when Hardy attempted to move the sawhorse to continue to his house. Laurel, at age 88, sustained some injury and sued for damages and an injunction to restrain Hardy from trespassing.

Under Section 41 of the Criminal Code of Canada anyone who is in peaceable possession of real property is justified in preventing a person from trespassing or in removing a trespasser, if no more force is used than is necessary. Conversely, a trespasser who resists an owner's attempt to prevent or to remove the trespasser of the real property is deemed to have committed an assault without justification or provocation.

The judge's findings were that Hardy was a trespasser, Laurel used no more force than was necessary to prevent the trespass, and Hardy's altercation with Laurel was an assault which entitled Laurel to damages of $10,000 and an injunction preventing Hardy from trespassing again.1

Laurel and Hardy share the use for access purposes of a mutual right of way over Laurel's land. By the terms of the easement agreement Hardy had the right to upgrade the existing road to standards acceptable by the Ministry of Highways, and to enlarge the right of way to a full 66 feet. No such upgrading had taken place. In addition, the easement agreement provided that no altercation or change in location of the right of way was to be made without the consent of both parties. Laurel decided to build a new driveway over his land from the road to his home. The discovery of a buried B.C. Telephone company cable and a breakdown of the contractor's equipment blocked the right of way for up to five weeks.

During this period Laurel told Hardy that he could have alternative access through Laurel's property until the blocked access was repaired at Laurel's expense.

Hardy subsequently claimed that the right of way wasn't restored to its original condition or location. Hardy wanted damages for the interference including the cost of restoring the roadway to its former condition, a mandatory injunction to correct the damage and to cease interfering with Hardy's right of passage. Laurel's position was that Hardy had suffered only a temporary interruption, no irreparable damage, and that Hardy's right of passage should not prevent Laurel from making a legitimate use of his own property.

In a neat balancing act the judge said that since the right of way only gave Hardy a right of passage, Hardy could not insist upon a continued free and uninterrupted right of way over the road that prevented Laurel from building a different driveway to his home. Laurel's decision to construct the driveway on his own land was a right which was not inconsistent with Hardy's reasonable enjoyment of the access road. In reaching this decision the judge was obviously helped by Laurel's offer of alternative access.

It is difficult to know how the judge would have balanced the parties' rights if no alternative access was available to Hardy. The judge had said that the owner had the right to use his own land subject to Hardy's right to "a fair enjoyment of the right of way". That statement suggests that Hardy might have been required to give up any access for a reasonable, but limited period, required by an owner to make a legitimate use of the owner's property, even if no alternative access was available.

 1. Dekok v. Speirs, S.C.B.C., Nelson Registry file #0650, (Reasons for judgment, September 23, 1992).
 2. Bossler v. Burton, S.C.B.C., Nelson Registry file #2648, (Reasons for judgment, July 9, 1993).

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