



COURT OF APPEAL FOR ONTARIO

CITATION: Lindhorst v. Sears, 2013 ONCA 294

DATE: 20130503

DOCKET: C51537

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Alvin Lindhorst

Applicant (Appellant)

and

David Sears

Respondent (Respondent)

Alvin Lindhorst, acting in person

John D. Bonn, for the respondent

Heard: April 25, 2013

On appeal from the order of Justice Cheryl Robertson of
    the Superior Court of Justice, dated December 3, 2009.

ENDORSEMENT

[1]

The appellant, Alvin Lindhorst, appeals the December 3, 2009 order of
    the trial judge, dismissing his claim for,
inter alia
, a declaration
    that he has a right of way or easement permitting him to use the well located
    on the respondents neighbouring property, and allowing the respondents
    counter-claim for a declaration that the well-sharing agreement registered on
    title to the respondents property expired on March 20, 2010.

[2]

In 1990, the respondent entered into an agreement to acquire his
    property. The agreement specifically noted that the well was shared with the
    then owners of the appellants property and that they had equal rights to the
    well. Prior to closing, the respondent entered into the well-sharing agreement
    with the then owners of the appellants property. The well-sharing agreement provided
    for shared use of the well until March 20, 2010. It was deposited on title to
    the respondents property, on March 9, 1990, when the respondent completed the
    purchase of his property.

[3]

The appellant purchased his property at a tax sale some 16 years later.
    He understood that it used the well in question. The well-sharing agreement was
    not registered on title to his property. He did not search title to the
    respondents property.

[4]

The appellant argues that the trial judge erred in finding that:

(1) the respondent had not repudiated the well-sharing agreement;

(2) the appellants right to use the well was governed by the
    well-sharing agreement despite the fact that it was not registered on title to
    the appellants property and the agreement of purchase and sale entered into by
    the respondent before the well-sharing agreement was executed specifically
    noted that the well was shared with the prior owners of the appellants
    property; and

(3)
Depew v. Wilkes
(2002), 60 O.R. (3d) 499, a
    decision of this court, did not apply in the circumstances, and the appellant
    was not entitled to a prescriptive right or equitable easement entitling him to
    use the well.

[5]

We are not satisfied that the application judge made a palpable and
    over-riding error in concluding that the respondent had not repudiated the
    well-sharing agreement. The trial judge noted that the appellant had been
    convicted of an offence under s. 2 (1) (a)(i) of the
Trespass to Property
    Act
, R.S.O. 1990, c. T.21 and that he was appealing his conviction.  She accepted
    the evidence of the respondent that he never denied the appellant access to
    the well, just to him wandering around [his] property. She was entitled to
    accept the respondents evidence over that of the appellant.

[6]

The well is located on the respondents property. The fact that the
    well-sharing agreement  a restriction on title to the respondents property 
    was not also registered on title to the appellants property does not render it
    ineffective as against the appellant.

[7]

We agree with the trial judge that the shared rights to the well acknowledged
    in the agreement of purchase and sale signed by the respondent were qualified
    by the subsequently executed well-sharing agreement, which gave express time
    limited permission for the owner of the appellants property to use the well.

[8]

Finally, we agree with the trial judge that because the appellants
    right to access the well was governed by the well-sharing agreement,
Depew
is not applicable, and the appellant has no prescriptive right or easement in
    relation to the well.

[9]

This appeal is accordingly dismissed. The respondent is entitled to his
    costs of this appeal on a partial indemnity scale, fixed at $ 5000, inclusive
    of disbursements and applicable taxes.

John Laskin J.A.

E.A. Cronk J.A.

Alexandra Hoy J.A.


