July 2020

English law has - for centuries - paid special attention to protecting rights in real property.  The expression "A man's home is his castle" reflected the prevailing view of judges and lawyers (in particular, conveyancers), at least insofar as royalty/the aristocracy/the landed classes were concerned.  In disputes between rival claimants to land - or an interest in land - the system favoured the current owner/occupant and made it difficult for a challenger to dislodge the current owner/occupier.

As nations became more sympathetic to "progressive" and "collective" viewpoints, this deference to the sanctity of property rights has been eroded.  An illustration of this can be seen in the (relatively) recent repatriation of Canada's constitution (from the UK Parliament) in which property rights protections were conspicuous by their absence.  However, notwithstanding the loss of enthusiasm for protecting property rights, they are still substantially protected under current Canadian law.  Illustrations of the Courts' hesitancy to overlook vested property rights can be found in certain cases dealing with easements, restrictive covenants and profits à prendre.  Consider the following holdings:

(i)            St. Boniface Warehousing Ltd. v. BBD Holdings Ltd. (2019 MBQB 181, judgment given December 9, 2019, hereinafter the "St. Boniface Case").  This case involved a claimant trying to establish easement rights against a neighbour's land, in part referable to an earlier easement grant and in part referable to a claim for a prescriptive easement (ie, an easement right based on long and unchallenged use of the neighbour's property).

(ii)           RPM Farms Ltd. et al v. Laurence Jay Rosenberg et al (2019 MBQB 140, judgment given September 27, 2019, hereinafter the "RPM Case").  This case involved a property owner claiming prescriptive easements against several of its neighbours' lands.

(iii)          Emil Stephen Delnea and Leslie Kim Delnea v. Richard Vanhouwe and Michelle Vanhouwe (2019 SKQB 255, judgment given September 27, 2019, hereinafter, the "Delnea Case").  This (Saskatchewan) case involved a property owner claiming rights against its neighbour's property with reference to certain improvements which the property owner had inadvertently placed on the neighbour's land.  The property owner's claim was based on Saskatchewan legislation which is substantially similar to Sections 27 and 28 of The Law of Property Act (Manitoba).

In the St. Boniface Case, neighbour "A" ("Neighbour "A"") bought its property (Parcel "1") in east Winnipeg in 1998 and Neighbour "B" ("Neighbour "B"") bought the adjacent property (Parcel "2") in 1987.  Neighbour "B" needed access over part of Neighbour "A"'s land (Parcel "1") in order to access a railway spur track so as to load and unload (from railway cars) product that Neighbour "B" produced, stored and distributed on and from its property.  A predecessor in title to Neighbour "B" obtained a grant of easement from a predecessor in title to Neighbour "A'"s over Parcel "1" permitting the then required access.  Subsequently, Neighbour "B" started making use of an additional portion of Neighbour "A"'s land (part of Parcel "1") for the purpose of allowing its trucks to make required turns to move in and out of Neighbour "B"'s property in order to load and unload Neighbour "B"'s products delivered to Neighbour "B" by way of the railway spur.  Additionally, Neighbour "B"'s principal used part of Parcel "1" to park his personal vehicle and Neighbour "B" also used part of Parcel "1" for the storage of pallets and trailers.  When Neighbour "A" discovered that Neighbour "B" was, in effect, trespassing on Neighbour "A"'s property, Neighbour "A" demanded that Neighbour "B" cease such trespasses.  Neighbour "B" resisted and ultimately - after an unusually long period of time - the matter came before the Court for determination.  Neighbour "B" defended its position with respect to Parcel "1" by pointing to the previously granted easement over Parcel "1", and, defended its right to use additional parts of Parcel "1" on the basis of continuous unchallenged and open use for a period in excess of 20 years (ie, Neighbour "B" claimed a "prescriptive easement").  The Court rejected the bulk of Neighbour "B"'s claims, based on the following reasoning:

(a)          there was insufficient evidence of continuous (over a 20 year plus period) use of the additional portions of Parcel "1" claimed.  In particular, there appeared to be no evidence of meaningful use during the period 1984 to 1990.

(b)          there was - in the Court's words, "…(a) lack of precision as to what portions of Parcel "1" were claimed (for a prescriptive easement)".  The Court cited previous authority that "…to be capable of bearing a prescriptive easement, the land over which the easement is claimed must be capable of being described with some specificity.".

(c)          as to that portion of Parcel "1" covered by the older easement grant, the Court did recognize the binding nature of the easement grant previously obtained by a predecessor of Neighbour "B" against the title to Neighbour "A"'s land, but held that Neighbour "B" had unilaterally and in an unjustified manner expanded the "scope" of its easement over Parcel "1".  Based on the evidence before it, the Court concluded that the easement grant's original purpose - as reflected in its wording - was to allow the occupant of Neighbour "B"'s property access to the rail spur located just inside the boundary of Parcel "1", for the purpose of loading and unloading trucks.  The easement grant did not contemplate the expansion of Neighbour "B"'s business operations so as to require additional portions of Parcel "1" to facilitate Neighbour "B" being able to use very large transport trucks whose size would have necessitated their being moved onto and through much greater portions of Parcel "1".

In the RPM Case, the defendant's property (the "Defendant's Property") was adjacent to and bordered by neighbour "X" ("Neighbour "X"") on the north, the south and in part on the west sides of the Defendant's Property ("Neighbour "X"'s Property"), and additionally, on part of the Defendant's westerly boundary, by land owned by neighbour "Y" ("Neighbour "Y"", Neighbour "Y"'s property being hereinafter referred to as "Neighbour "Y"'s Property").  The Defendant claimed prescriptive easements in favour of the Defendant's Property over portions Neighbour "X"'s Property and over part of Neighbour "Y"'s Property in support of the Defendant's claims, and for the purpose of challenging same, witnesses were presented to the Court together with certain documentation including affidavit evidence.  The most substantial difficulty encountered by the Defendant - and this would appear to be typical in cases of this type - was the fact that ownership of the various neighbouring parcels had, over the twenty year period required to be established to validly claim a prescriptive easement, had changed from time to time.  In fact, for a five or six year period within the alleged twenty year period, one of the parcels had been leased by its owner to a tenant. It is often difficult to locate witnesses - or written confirmations of land usage - going back over twenty years; some witnesses will never be located, others will have died and the memories of most of them - the further back in time you go - will have faded.  As the Court observed, "…Here, the defendants seek to support their position by relying upon the hearsay evidence of unnamed people in the community…".  In particular, there was insufficient credible unambiguous evidence of continuous usage, and, insufficient evidence that Neighbour "X" and Neighbour "Y" had, with knowledge of their own property rights (ie, that what the owner/occupier of the Defendant's Property was doing constituted trespasses) combined with acquiescence by Neighbour "X" and Neighbour "Y", key requirements to establish prescriptive easements.  These particular holdings/observations by/of the Court are instructive:

(i)            Courts should be wary of recognizing prescriptive easements because to so will "…subject a property owner to a burden without compensation".

(ii)           No prescriptive easement can be held to have arisen where it is alleged to have commenced at a point in time where the servient tenement property was leased by a tenant.  Specifically, the "…a tenant may not grant a perpetual easement that would bind a registered owner after the expiration of the lease".

(iii)          One of the Defendant's claims for a prescriptive easement was based on the Defendant (predecessor in title to the Defendant's Property) having planted a tree line just beyond the northerly boundary of the Defendant's Property.  The Court held that the mere planting of a tree line should not form the basis of a prescriptive easement per se.

(iv)         In part, the Defendant's prescriptive easement claims were based on the fact that the servient tenement owner had given "informal permission" for the use of its land.  "Neighbourly permissions have not been recognized as creating a basis for a prescriptive easement".  Usage of the servient tenement property owner's land by the owners/occupiers of the Defendant's Property "…was permitted by neighbourly goodwill rather than simply acquiescence".  It was the Court's view that clearly, it is not in the public interest for the legal system to discourage neighbourly cooperation and the provision of neighbourly permissions.

In the Delnea Case, neighbours "X" and "Y" owned adjacent cottage properties.  Neighbour "X" ("Neighbour "X"") had installed an underground septic tank which encroached upon the property of "Y" (Neighbour "Y").  Based on Section 2 of The Improvements Under Mistake of Title Act (Saskatchewan) (similar to Sections 27 and 28 of The Law of Property Act (Manitoba), Neighbour "X" requested the Court to grant Neighbour "X" an easement covering the portion of Neighbour "Y"'s property that contained the tank.  The Court observed that there were two primary requirements that had to be fulfilled before Neighbour "X" would be successful in its claim, namely, firstly that the tank was a "lasting improvement" on Neighbour "Y"'s land, and, secondly, the installation by Neighbour "X" was done under the "…mistaken belief that the land (was) (Neighbour "X"'s)".  The Court concluded that although arguable, the evidence suggested that the tank was of a "permanent" nature, and that Neighbour "X" had genuinely believed that the tank was being installed on Neighbour "X"'s property.  In this situation, the Court has two remedial options, one, to place a lien on Neighbour "Y" property in the amount that the improvement enhanced the value of Neighbour "Y"'s property, or, two, to permit Neighbour "X" to acquire ownership of the encroached upon land, provided that appropriate compensation is paid to Neighbour "Y".  Clearly, the first remedial option was inapplicable in the circumstances of the Delnea Case.  The second option was appropriate, but the Court was not provided with evidence dealing with the matter of the quantum of compensation which should go to Neighbour "Y" for losing a (small) portion of its property.  The Court ruled that the parties would have a further short (30 days) period of time within which to address the issue of compensation.  Unlike the outcomes of the St. Boniface Case and the RPM Case where a claim against a neighbour's lands was rejected, the encroaching Neighbour "X" was successful in claiming rights in the neighbouring property.  However, this case illustrates the need for counsel to be fully prepared and to understand exactly just what sort of issues have to be dealt with and to craft a presentation of the necessary evidence accordingly.

November 2008

Most lenders and informed lawyers are aware of the rule which provides that where a mortgagee forecloses upon mortgaged real estate - as opposed to exercising the mortgagee's right to sell the real estate - the debt secured by the mortgage is extinguished.  In Manitoba, this rule is found in Section 16 of The Manitoba Mortgage Act (the "MMA"), and is actually broader than specifying extinguishment of the mortgage secured debt by way of foreclosure; in fact, Section 16 provide, in effect, that the mortgage secured debt is extinguished where the mortgagee forecloses by court order, forecloses through the Land Titles system (without the assistance of the court) under The Manitoba Real Property Act (the "MRPA"), or the mortgagee "otherwise" becomes the owner of the mortgaged realty.  Section 16 also clearly applies to mortgages of interests in real estate less than freehold or fee simple ownership, such as mortgages of leaseholds, mortgages of easements etc.

The MMA Section 16 rule is of fairly ancient heritage and it is the writer's understanding that it is based on a matter of policy or principle to the effect that where a mortgagee ends up with ownership of the mortgaged property, the mortgagee then has the realty "for better or worse".  Thus if the value of the realty is less than the previously secured debt, the mortgagee - who will probably try to sell it sooner or later - will suffer a deficiency.  On the other hand, if the mortgagee waits until the value of the realty increases and such increase is in excess of the amount of the previously secured debt, the mortgagee gets to keep any "profit" it may make on its eventual sale of the realty (ie., all proceeds in excess of the previously secured debt).  Where a mortgagee merely sells the mortgaged realty as part of its mortgage realization process, any sale proceeds in excess of the debt owed to the mortgagee must go to subsequently ranking (ie.,subsequent to the selling mortgagee) monetary claimants to the realty, (and to the mortgagor).

What about a creditor who holds a security interest in personal property?  Section 61(2) of The Manitoba Personal Property Security Act (the "MPPSA") contains a rule applicable to personal property security interests which is somewhat the same as the rule for real property security in Section 16 of the MMA.  The rule for security in personalty is, in effect, that where, after default has occurred under the security agreement, the secured party gives notice to the debtor and certain other specified interested persons that the secured party intends to "take the collateral in satisfaction of the obligation secured", and, none of the persons to whom such notice is given object to such proposal within 15 days after receiving the notice, the secured party, immediately following the end of such 15 day period is "deemed to irrevocably elect to take the collateral in satisfaction of the obligation secured…".  Section 61 doesn't say that the debt is extinguished, but it comes pretty close to stating what amounts to the same thing.

Some questions which may arise in the application of Section 16 of the MMA and Section 61 of the MPPSA are:

(i)            what happens when a creditor holds two or more real property mortgages and/or security agreements covering multiple parcels of real estate and/or multiple items of personal property, with each of the securities securing payment of one particular loan only, and, the mortgagee/secured party acquires ownership of some, but not all, of the realty and/or personalty, with the thus acquired realty and/or personalty having an (aggregate) value less than the amount of the outstanding indebtedness?  Is the mortgagee/secured party now barred from acting under its then existing not yet realized real property and/or personal property security by virtue of the operation of either one (or both) of Section 16 of the MMA and Section 61 of the MPPSA?  Consider the situation of a creditor who is owed, say, $1,000,000.00 and has taken, say, a real property mortgage on one parcel of land worth $100,000.00, a further real property mortgage on a second parcel of real property worth $150,000.00, a further real property mortgage on a third parcel of realty worth $200,000.00, and, a personal property security agreement against certain equipment belonging to the debtor worth $300,000.00, each of these securities securing payment of the same $1,000,000.00 debt. Even if the creditor was to simultaneously (which may be impossible!) foreclose upon all three parcels of realty and the equipment, it would still suffer a shortfall of $250,000.00. What if the creditor foreclosed upon the equipment only? - if each of the three real property mortgages and one security agreement by their terms secured the same $1,000,000.00 debt, would the creditor be unable to realize under its real property mortgages by virtue of the operation of Section 61 of the MPPSA (i.e. it has taken the equipment "in satisfaction of the debt" so that there is nothing left for the real property mortgages to secure)?  Even if the aggregate value of the pledged realty and personalty was in excess of the amount of the debt (i.e. in excess of $1,000,000.00), is it really possible to coordinate the creditor's foreclosure proceedings such that it would be able to take title to the real estate and take ownership of the equipment at precisely the same point in time, thereby avoiding the debt extinguishment provisions contained in Section 16 of the MMA and Section 61 of the MPPSA? Would a possible solution to this dilemma be for the creditor to ask the Court to issue a vesting order vesting (foreclosing upon) all of the pledged realty and personalty simultaneously?

(ii)           what happens where one or more real property mortgages and/or one or more security agreements held by a mortgagee/secured party, by their terms secure all of the mortgagor's/debtor's present and future liabilities, indebtedness and obligations from time to time owed to the mortgagee/secured party, where the value of each security (ie the value of what is mortgaged/secured by each security) as well as the value of all of the securities is less than the total aggregate indebtedness owed by the mortgagor/debtor at the time that the creditor goes to/wishes to realize upon its securities?  Consider the situation of a creditor who has obtained the same security described in (i) above except that each security by its terms secures the payment of all present and future obligations owed by the debtor to the creditor, present and future; if the creditor is owed a total of $1,000,000.00 by the debtor and the creditor forecloses upon one or more (but less than all) or, even upon all of its securities, given that each of the securities provides that it secures all of the debtor's obligations owed to the creditor, upon any foreclosure, wouldn't all of the indebtedness (ie., $1,000,000.00) be extinguished?

Here are some possible solutions to these problems:

(a)          In the situation where there are multiple securities securing one only particular debt, consider:

(i)            utilize one security agreement only, such as a "debenture" which covers both realty and personalty, and which may be amended from time to time to add further, new or additional parcels of real property to be specifically mortgaged to secure the particular debt (this type of security is typically utilized in multiple jurisdictions and may also make it easier for the courts to order one or more (simultaneous) vesting orders where the creditor wishes to foreclose upon all of the property);

(ii)           have each mortgage and security agreement (where there are multiple mortgages and/or security agreements) specifically state that while each of them secures the same particular debt, each of them will, in the case of foreclosure, secure only that portion of the debt which is equal to the value of the pledged realty and/or personalty at the time of foreclosure (this may convince a court called upon to determine the effect of Sections 16 and 61 upon the foreclosure(s) to conclude that it is only portions of the total debt which are to be extinguished (or satisfied) upon each separate foreclosure;

(b)          in/for both real property mortgages and personal property security agreements, specify maximum principal or face amounts thereof where such face or maximum principal amounts approximate (or are only slightly higher than) the anticipated (i.e. anticipated near term) values of each respective property pledged; and

(c)          do not foreclose against any of the secured property until after all reasonable efforts have been made to sell the pledged assets, utilizing foreclosure only as a last possible resort. In some cases, it may be appropriate to sell everything except for secured assets which are only of very small value and, then simply discharge the remaining security; this would at least leave any yet to be satisfied debt remaining in existence.

December 2016

Where an easement is granted by a servient tenement owner ("Servient Owner") to an adjacent (or nearby) dominant tenement owner ("Dominant Owner"), typically, the Servient Owner undertakes to the Dominant Owner to permit the Dominant Owner to make certain specified usage of the Servient Owner's land.  The intent of the owners (and the result, if the easement grant or agreement is properly worded) is to bind the owners' respective lands, with the burdens of the easement being primarily placed upon the Servient Owner, and with the benefits of the easement primarily accruing to the Dominant Owner.  That is, the easement (and its accompanying/specified rights and obligations) will bind not only the original parties (the grantor original Servient Owner and the grantee original Dominant Owner), but also all successive successors-in-title to the affected lands, indefinitely.  The usage to be made by the Dominant Owner of the Servient Owner's lands will, to a greater or lesser degree, be specified in the instrument creating the easement.  Usage specification will usually depend upon what each of the parties is currently doing in relation to each's respective property, or what one or both of the parties intend to do in the near future with respect to the properties.

But what happens if, after a period of time, perhaps a lengthy period of time, the intentions and objectives of the Dominant and Servient Owners (who may not at that point in time be the original parties, but rather immediate or more remote successors in title), are different from those of the original parties at the time when the easement was created?  Usually the question is whether or not what the current owners want to do with their properties - and in particular, whether or not the parties' current intentions - jibe with the terms of the easement agreement.  Where there is a disagreement on these matters between the current owners which they are unable to amicably resolve with amendments or restatements of the original easement, resort may be - and on many occasions has been - made to the Courts for a resolution.

The relatively recent judgement issued March 11, 2016 by the Supreme Court of British Columbia in Houghton and Houghton v. O'Rourke Family Vineyards Ltd., (hereinafter, the "Vineyards Case") dealt with this very situation.  The facts of the Vineyards Case may be summarized as follows:

(1)          The plaintiffs and the defendant owned adjacent properties.  The plaintiffs' property abutted Okanogan lake, and the defendant's property was situated back from that lake adjacent to the plaintiffs' property. 

(2)          The easement in question (the "Easement") had been created by the plaintiffs' and defendant's predecessors-in-title.  The plaintiffs' predecessors used their property for residential purposes and this usage was continued by the plaintiffs.  The defendants predecessor used its property for an orchard. The defendant continued this usage, but now wished to convert a substantial portion of its property for use as grape growing "farm" and as a winery.

(3)          The Easement permitted the from time to time owners of the defendant's property to utilize a portion of the plaintiffs' property for the purpose of drawing water from the lake and piping it through the plaintiffs' property to the defendant's property.  Thus the plaintiffs' property was the "servient tenement" land, and the defendant's property was the "dominant tenement" land.  Notice of the Easement had been registered against the title to the plaintiffs' property, and there was no argument between the parties that the Easement bound and benefitted both the original property owners who had created the Easement, and each of their respective from time to time existing successors-in-title.

(4)          The core of the rights granted to the dominant tenement owner under the Easement were stated to be: "an easement and right in perpetuity to enter into and use that portion of the grantor's land shown outlined in red on a Plan of Easement registered in the Kamloops Land Registry Office under No. A11976 (the "Easement Area for the purposes of constructing, installing, maintaining, inspecting, altering and repairing pipes and works for the carriage and delivery of water" (the underlining here is by the writer for the purpose of emphasis).  In considering the Court's decision in this matter, it is important to keep in mind what the foregoing quoted words both say and what they don't say.

(5)          Currently, the easement area under the Easement (the "Easement Area") contained pipes and certain equipment/facilities which carried water from the lake to the plaintiffs' property.  Although there had been no upgrading, expansion or otherwise substantial change to the pipes and equipment/facilities (the "Works") since the defendant acquired the property, the defendant had occasionally entered into the Easement Area "in order to conduct repairs or maintenance of the Works".  The plaintiffs had not objected to this activity.

(6)          The currently existing Works comprised a pump house and above-ground pipes extending to and then from the pump house, and in the words of the Court, the Works were "antiquated and in severe disrepair".

(7)          The defendant now wished to, in effect, accomplish two things, namely:

(a)          to modernize and upgrade the Works so as to meet modern standards and satisfy safety and government regulation requirements; and

(b)          to increase the capacity of the Works in order to facilitate the defendant's plan to replace what had been an apple orchard with grape vines, together with the establishment of a winery.

(8)          The defendant's contemplated upgrading and capacity increase for the Works would involve installing wider pipes, relocating the pipes underground, replacing the pump house with a much larger pump house containing more powerful pumps, with the consequent expansion of the Works to occupy virtually all of the Easement Area.  The defendant's plan did not involve expanding the area or the boundaries of the Easement Area.  Because the upgraded and expanded Works would take up virtually all of the Easement Area, it would be necessary for the defendant to temporarily access portions of the plaintiffs' property which would lie outside the Easement Area boundaries.

(9)          The defendant and the plaintiffs had ongoing discussions regarding the defendant's proposals, but unfortunately, the parties were "unable to come to an agreement".  Thus the matter had come before the Court.

The plaintiffs argued that upon a proper interpretation of the wording in the Easement, most of what the defendant proposed was not permitted.  The following outlines each of the plaintiffs' particular arguments and how the Court considered and dealt with them:

(i)            The plaintiffs argued that the defendant could not effect its proposed upgrading and enhancements, and, indeed, could not do anything else in relation to the Easement, without either getting a Court order or getting the plaintiffs' consent.  The Court disagreed and stated that the grantee under an easement was entitled to exercise the rights granted to it "as a matter of right".  The Defendant did not have what amounted to unlimited rights under the Easement, only those given to it which were set forth in the wording of the grant.

(ii)           The Plaintiffs argued that the Defendant should not be permitted to make "excessive use" of the Easement Area.  The Defendant's proposal would expand their use of the Easement Area out to the Easement's borders and this would extinguish the Plaintiffs' ability to make use of or to access the Easement Area.  Additionally, the Plaintiffs pointed out that the Defendant's proposal would "interfere with the appearance" of the Easement Area when the Plaintiffs viewed it.  The Court disagreed and pointed out that by its very nature, an easement diminishes the potential use and enjoyment of the land (affected).  The Plaintiffs acknowledged that the Defendant's proposal was, (if anything, an "improvement" from the transmission pipes to be relocated underground which should esthetically enhance the appearance of the Easement Area and reduce the noise that would otherwise be caused by the passage of water through surface pipes), and, the new Works including rebuilt pump house should be an improvement over the appearance of the current Works.  The Defendant's proposal would "not somehow constitute excessive use" of the Easement.

(iii)          The Plaintiffs argued that the Defendant should be entitled to enter the Plaintiffs' property outside of the Easement Area.  The Court disagreed and pointed out that grantees of easements "may access the land of the grantor to the extent that it is reasonably necessary to  the exercise and enjoyment of the easement".

(iv)          The Plaintiffs argued that the Easement did not grant any "subsurface rights", so that the Defendant should not be entitled to relocate the pipes underground.  In support of this argument, the Plaintiffs pointed out that in the recital of the Easement grant, it was stated that: "Grantor proposes to grant to the Grantee and easement over a portion of the said land" (the underlining is the writer's for emphasis purposes).  "Over" did not mean "under".  Because the Court disagreed and pointed out that the Easement did not specifically refer to subsurface rights, but at the same time, it did not expressly refer to surface rights.  The word "over" in the recital "simply refers to a bundle of legal rights.  It does not refer to any physical notion of over the land or under the land".

(v)           The Plaintiffs argued that the Easement was only intended to facilitate the transmission of water from the lake to the Defendant's land for the purpose of irrigating an apple orchard, not for the purpose of irrigating grape vines and/or operation a winery.  What the parties contemplated at the time of the Easement was created should determine all future uses.  The Court acknowledged that Easement grant did not contain any reference to the Defendant's proposed usage, but nevertheless (again) disagreed with the Plaintiffs.  The Defendant's proposed use was not specified in the Easement grant, but for that matter, neither was the original use of the Defendant's land namely for an apple orchard.  "All that is referred to is the "carriage and delivery of water"".  Unless there is an ambiguity in the wording of the grant, and in that wording and not the original parties' intentions- which determine the rights granted under an easement.

(vi)          Lastly, the Plaintiffs argued that the benefits of the Easement should be interpreted as applying only to the lands held by the dominant tenement owner at the time the Easement was created.  This argument was raised because the Defendant's proposal would include operating the grape vines and winery on additional lands held by the Defendant which were not part of the original dominant tenement.  The Court agreed with the Plaintiffs' position in principle, and pointed out that the Easement grant contained a statement in its recital to  the effect that the Easement was to be" for the purposes of … benefitting (the originally specified dominant tenement lands)" however, the Court stated that: "once water is carried to the subject properties via the easement, the intention of being used on the subject properties, the Plaintiff has no right to restrict or dictate what the Defendant may do with that water.  Their rights do not extend to what happens to the water after it leaves the Easement Area". In the writer's mind, this appears to be a thoroughly fine distinction.

What should the Court's conclusions in the Vineyards Case suggest to parties contemplating obtaining and granting easements and to their counsel? Consider:

            (A) With respect to the plaintiffs' above- noted last argument, an intending easement grantee's counsel might be tempted to add wording to the grant to make it clear that the benefits of the easements may be enjoyed by additional lands subsequently owned by the holder of the specified dominant tenement lands.  The problem with this is that a Court would probably hold such a provision to be too imprecise, and traditionally, for an easement to bind land (as well as the original parties to the easement) both the dominant tenement lands and the servient tenement land must be clearly specified.  Such a provision would not be "illegal" as such, but would not be a binding interest in land.  It would, at best, only constitute a contractual right or (or license) in favour of the grantee. It would not benefit the original grantee's successors in title to the dominant lands or any additional lands acquired by the original grantee or by a subsequent successor in title to the original grantee. However, in the Vineyards Case any ambiguity might have been eliminated by the additional wording to the effect that the grantee (and its successors in title to the specified dominant tenement lands) would be entitled to use water piped to the originally specified dominant tenement lands in any matter which might benefit adjacent additional lands held by the dominant tenement owner.  Essentially, this is what the Court implied, but having it clearly specified in the original grant would (presumably) not have allowed the plaintiffs to raise this argument at all.

            (B)  The writer believes that the core of the decision in the Vineyards Case was that one must look to the actual wording of the grant (assuming it is unambiguous) in order to determine the extent of - and the limitations on - the grantee's rights.  Thus from the grantee's point of view, its counsel must endeavor to use wording which will accommodate not only the grantee's originally intended usage of its easement rights, but also accommodate changes in the original grantee's and its successors in title's circumstances and land usage.  As one can appreciate, attempting to draft provisions to cover future unknown changes of circumstances and usage- at least in any precise manner- is virtually impossible.  Perhaps all that can be done- from the grantee's point of view- is to ensure that the operative wording in the easement grant is broad or general in nature.  That appears to have been the case in the Vineyards Case and assisted the defendant greatly in convincing the Court of the validity of its position.  From the point of view of the grantor, the drafting task may be more difficult.  The grantor's counsel should attempt to determine what the grantor, looking at its own current situation and guesstimating its future situation and those of its successors in title- needs to do to limit the otherwise "broad/general" grant wording required by the grantee.  Not an easy task, but one which must at least be attempted by the grantor's counsel.