





CITATION:
Lywood
v. Hunt, 2011 ONCA 229



DATE: 20110325



DOCKET: C52037



COURT OF APPEAL FOR ONTARIO



Sharpe, Gillese and Karakatsanis JJ.A.



BETWEEN



Wayne
Lywood
and Ruth
Lywood



Applicants (Appellants)



and



Robert Noel Hunt



Respondent



Jerry Switzer, for the appellants



Charles Baker, for the respondent



Heard:
March 22, 2011



On appeal from the judgment of Justice J. Lauwers of the
          Superior Court of Justice dated May 29, 2009.



ENDORSEMENT



[1]

This appeal concerns the nature and extent of the
    rights of the respondent pursuant to a right-of-way over the property of the
    appellants.  The parties own adjacent
    cottages at Sturgeon Lake.  The
    appellants cottage fronts on the lake and the respondents cottage is located
    behind that of the appellants.  The right-of-way
    at issue involves water access.  The
    application judge gave careful and detailed reasons and made a number of
    determinations that are not at issue on this appeal.

[2]

The appellants raise only two issues relating to the
    interpretation of the grant of right-of-way:

1)

Is there only one right-of-way for the limited purpose
    of maintaining a pipeline for drawing water from the lake and accessing a pump
    in a boathouse?

2)

If there are two rights-of-way, should they both be
    exercised on the same side of the appellants property?

[3]

The appellants are the owners of Lot 9, the
servient
tenement and the respondent is the owners of Lot 21,
    the dominant tenement.  The right-of-way
    is in the following terms:

SUBJECT to a right-of-way for the Grantor and
    owners and occupants of Lot Number Twenty-one (21) as shown on a plan of a
    subdivision of part of Lots Numbers (7) and Eight (8)  to pass and re-pass
    along a defined path on the east side of the cottage erected on Lot Number Nine
    (9) as shown on said Plan Number 123 for the purpose of access to the shore of
    Sturgeon Lake but with no right to loiter thereon; AND SUBJECT to the right of
    the Grantor and the owner from time to time of said Lot Number Twenty-one (21)
    as shown on plan registered as Number 139 to use the pump in the boathouse for
    pumping water to the cottage erected on
said
Lot
    Number Twenty-one (21) as shown on Plan 139 , together with access for ingress
    and egress to and from the
said
boathouse for the
    purpose of using such pump.

[4]

We do not accept the appellants submission that this
    language creates one, single and unified right-of-way to maintain a pipe for
    drawing water from the lake on the east side of their property and that it excludes
    a right of access to the lake for recreational purposes.  In our view, the application judge did not err
    by interpreting the language of the right-of-way as, in effect, creating two distinct
    rights, the first to to pass and re-pass along a defined path on the east side
    of Lot 9 for access to the shore of Sturgeon Lake for recreational purposes;
    and the second to to use the pump in the boathouse for pumping water to the
    cottage on Lot 21 and the right to access for ingress and egress to and from
    the
said
boathouse for the purpose of using such pump.  We note that although the right-of-way does
    not specifically refer to the right to maintain a water line to the pump in the
    boathouse, it is common ground that that right is necessarily ancillary to the
    right to use the pump in the boathouse.

[5]

The right-of-way is drafted as two distinct grants.  The language of the first grant says nothing
    about the right to maintain a line for drawing water from the lake and
    explicitly provides for the right to pass and
repass

    along a path for the purpose of gaining access to the
shore
of Sturgeon Lake.  The application judge
    found on the evidence that the terms of the right-of-way allowed for lake
    access for recreational purposes and that it had been enjoyed for that purpose
    by the respondents predecessors in title.  As he put it at
para
. 7 of his supplementary
    reasons:

It is plain from the wording of the deeds that
    there are two rights-of-way, one, for the purpose of access to the shore of
    Sturgeon Lake but with no right to loiter thereon and, another, to use the pump
    in the boathouse for pumping water to the cottage.

[6]

We see no error of law or fact that would permit us to
    interfere with that conclusion.

[7]

The appellants second submission is that if the right-of-way
    does create both a right of access for recreational purposes and the right to use
    the pump  with the ancillary right to have a pipeline  the two rights-of-way
    should be combined so that both are enjoyed over the same side of the
    property.

[8]

The difficulty with this submission is that it flies in
    the face of the language of the instrument creating the rights-of-way.  The right of access for recreational purposes
    is explicitly along the east side of the appellants property.  The only boathouse is located on the west
    side of the property and there is evidence that the boathouse has been on the
    west side since the 1940s.  The installed
    water pipes are on the west side of the property.  There is no evidence capable of supporting a
    finding that there was ever a boathouse on the east side of the property.  While we can understand the appellants desire
    to have the two rights-of-way along the same side of their property, in our
    view, we would have to rewrite the instrument granting the rights-of-way to
    achieve that result and we have no power to do so.

[9]

Accordingly, the appeal is dismissed with costs fixed
    in the amount of $6,500 plus $242 for disbursements, plus applicable taxes.

Robert J. Sharpe J.A.

E.E. Gillese J.A.

Karakatsanis J.A.


