Dukart v. Corporation of the District of Surrey

Dukart v. Corporation of the District of Surrey
Collection
Supreme Court Judgments
Date
1978-05-01
Report
[1978] 2 SCR 1039
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
British Columbia
Subjects
Property law
Decision Content
Supreme Court of Canada
Dukart v. Corporation of the District of Surrey, [1978] 2 S.C.R. 1039
Date: 1978-05-01
Corinne Marie Dukart (Plaintiff) Appellant;
and
The Corporation of the District of Surrey (Defendant) Respondent;
and
The Registrar Of The New Westminster Land Registration District (Defendant).
1977: November 16; 1978: May 1.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Real property—Residential development fronting on beach—Whether easement granted in favour of lot owner to cross “foreshore reserves”—Whether easement registered within requirements of Land Registry Act—”Foreshore reserves” acquired by municipal corporation by way of tax sales—Title taken subject to easement—Land Registry Act, R.S.B.C. 1960, c. 208, ss. 25(a)(i), 149—Municipal Act, R.S.B.C. 1960, c. 255, s. 407.
On February 21, 1912, a land developer deposited in the registry office under the then Land Registry Act of British Columbia “a registered map or plan of subdivision” No. 2200, which plan included several hundred residential lots and the four blocks of land between these lots and the waters then known as Semiamo Bay, now known as Boundary Bay, then identified as the “Foreshore Reserves”. The appellant is the registered owner of Lot 38, Plan 2200, being a lot fronting on the Foreshore Reserves. The respondent corporation, which had acquired the Foreshore Reserves by tax sales in 1949 and 1954, commenced the construction thereon of a large comfort station in July 1973. The actual location of this partly completed structure is in front of two residential lots fronting on the Foreshore Reserves which are contiguous to the appellant’s lot.
The title of the appellant is rooted in the deposit in the Land Registry Office of Plan 2200 and the subsequent conveyance of Lot 38 from the development company registered in April 1914. The form of deed used was the standard adopted by the development company for the whole of the plan of subdivision, and one of the recitals provided that “… the Foreshore Reserves… are to be held by the Grantor, its successors and assigns
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…for the purpose of giving free access to the waters of [the] Bay to persons purchasing subdivisions…”
The deed also included a covenant by the grantee in favour of the grantor developer and “its successors and assigns” and also “as a separate covenant with every owner or owners for the time being of any part of the said [development]” in which is set out a series of restrictive covenants applicable to the grantee’s lot.
The title to the Foreshore Reserves likewise finds its origin in the deposit in the Land Registry Office of the Plan of subdivision 2200 wherein the four blocks of “Foreshore Reserves” between the row of lots closest to the water and the water itself are set out.
On January 10, 1917, the development company conveyed all of the unsold lots comprised in Plan 2200 to a trustee. The conveyance was registered in January 1917 as No. 22841E. In the description of the land so conveyed there was inserted in handwriting “those four separate parcels marked Foreshore Reserves all as shown on subdivision 2200”. The trustee received in due course a certificate of title under the Land Registry Act upon which reference was made to Deed 22841E.
By order of the Supreme Court of British Columbia made on May 26, 1939, a successor trustee was appointed. That order was in due course deposited in the Land Registry Office and a new certificate of title was duly issued to the successor trustee. The new certificate of title again referred, on its face, to the existence of the trust by describing the new grantee as “John Alfred Wright in Trust” and included a directive, “See Deed 22841E and Filing No. 21796 (the latter filing being the order of the Supreme Court).
Although the respondent acquired its interest in the Foreshore Reserves by tax sales in 1949 and 1954, no certificate of title was issued to the respondent until January 30, 1963. Prior to 1963 the certificate described the four parcels as “Foreshore Reserves Plan 2200”, and the reverse side of the certificate made only a bare reference to the “Surrey Tax Sales”. No reference is made in this 1963 certificate of title to the “in trust” notation in the prior certificates, to the conveyance No. 22841E or to Filing No. 21796. In 1963 the respondent filed a new plan covering the area described in the old Plan 2200 as the Foreshore Reserves and in which the Foreshore Reserves are redescribed as Lots 43 to 47 inclusive. This new plan is No. 25109 and, immediately upon its registration, there issued a new certificate of indefeasible title to the respondent, also dated January 30, 1963, which described the Foreshore Reserves as
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Lots 43 to 47 inclusive, Plan 25109, but made no reference to the 1917 conveyance to the trustee, to the appointment in 1939 of the successor trustee, or to any “in trust” status.
Meanwhile the appellant’s title to Lot 38 was reflected in a certificate of indefeasible title issued to her predecessor in title in November 1963. No mention is made of any right or interest in or in respect of the Foreshore Reserves or Lot 47, but only to Lot 38 Plan 2200. Recorded on the reverse side of this certificate is a reference by deed number to the restrictive covenants set forth in the original grant of Lot 38 from the development company in 1914 to the appellant’s original predecessor in title.
The appellant brought an action seeking, inter alia, an injunction restraining the respondent from erecting a building on Lot 47, and an order directing the Registrar of Titles to amend the respondent’s title by showing the registration of an easement against the said title. The appellant succeeded at trial but lost in the British Columbia Court of Appeal, whereupon an appeal was brought to this Court.
Held: The appeal should be allowed.
As to the questions whether an easement had been granted in favour of the owner of Lot 38 to cross over the Foreshore Reserves, including Lot 47 being the portion thereof immediately between the appellant’s lot and the water’s edge, and whether the respondent, when it acquired the Foreshore Reserves, including Lot 47, by way of a tax sale, took title thereto subject to an easement in favour of the appellant as owner of Lot 38, the Court concluded as follows: (a) The effect of the 1914 conveyance to the appellant’s predecessor in title (which is fortified by the 1917 conveyance of the Foreshore Reserves to the trustee, the respondent’s predecessor in title) was, in law, the grant of an easement in favour of the owners of Lot 38 over the Foreshore Reserves including Lot 47. (b) The right so granted includes the right to promenade freely across the whole of the Foreshore Reserves and not merely to cross directly from the edge or front of Lot 38 to the waters of Boundary Bay. (c) The registration of the 1914 conveyance and the processing (to use a neutral term) of the 1917 conveyance under the provisions of s. 149 of the British Columbia Land Registry Act achieves the protection of the trust interests, including the easement held in respect of Lot 47, in the manner peculiar to the said Act. (d) The result of the operation of s. 149 is to register the easement against Lot 47 in the sense that that term is employed in s. 25 (a)(i) of the Land Registry Act. (e) The registration of the trust instrument not only brings s. 149(2) into play, prohibiting
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disposition of Lot 47 contrary to the trust instrument, but also requires the holding of Lot 47 subject to the trust instrument and the rights of the beneficiaries thereunder, including the registered owner of Lot 38. (f) Thus the certificate issued to the respondent by the Registrar in January 1963 should have continued to reflect the “trust” status and the reference to the 1917 and 1939 deed and order respectively, (g) Hence, the easement granted to the dominant tenement, Lot 38, survives the tax sale under s. 407 of the Municipal Act of British Columbia and continues to be binding upon the respondent as the registered owner of Lot 47.
Re Ellenborough Park. Re Davies. Powell and Others v. Maddison and Another, [1955] 3 All E.R. 667, applied; Wells v. Mitchell, [1939] 3 D.L.R. 126; Carpenter v. Smith, [1951] 2 D.L.R. 609; Aspdin v. Austin (1844), 5 Q.B. 671; Mackenzie v. Childers (1889), 43 Ch. D. 265; Re Lorne Park (1913), 18 D.L.R. 595; Gregg v. Richards, [1926] Ch. 521; Morrison v. Weller, [1951] 3 D.L.R. 156; Re Massey and Gibson (1890), 7 Man. R. 172; Re The Land Titles Act and Allan and O’Connor, [1918] 1 W.W.R. 440; Gordon v. Hipwell (1952), 5 W.W.R. (N.S.) 433; Clark v. Barrick, [1949] 2 W.W.R. 1009; McKillop v. Alexander (1912), 45 S.C.R. 551; Western Trust Co. v. Olsen, [1918] 3 W.W.R. 811; Close v. McMeans, [1931] 3 W.W.R. 550; St. Germain v. Reneault (1909), 2 Alta. L.R. 371; Re Estate of Roneche (1908), 1 Alta. L.R. 255; Ficke v. Spence, [1922] 1 W.W.R. 1271; National Trust Co. v. Proulx (1910), 15 West. L.R. 349; Sorenson v. Young, [1920] 1 W.W.R. 189; Registrar of Titles v. Vancouver, [1945] 3 D.L.R. 304; Rystephaniuk v. Prosken (1951), 3 W.W.R. (N.S.) 76; Gibbs v. Messer, [1891] A.C. 248; Canadian Pacific Railway Co. v. Turta, [1954] S.C.R. 427; In re Svenska Aktiebolaget Gasaccumulator’s Application, [1962] 1 W.L.R. 657; Grand Trunk Pacific Railway Co. v. Dearborn (1919), 58 S.C.R. 315; Fels v. Knowles (1906), 26 N.Z.L.R. 604; Grasett v. Carter (1883), 10 S.C.R. 105; In re Goldstones Mortgage, [1916] N.Z.L.R. 19; Re Zeller’s (Western) Ltd. and Calford Properties Ltd. (1973), 29 D.L.R. (3d) 16; Ruptash v. Zawick, [1956] S.C.R. 347, referred to.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing an appeal from a judgment of Meredith J. Appeal allowed.
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R.R. Dodd, for the plaintiff, appellant.
A.K. Thompson, for the defendant, respondent.
The judgment of the Court was delivered by
ESTEY J.—The appellant, the owner of a residence fronting on Crescent Beach in the city of Vancouver, seeks to prohibit the respondent corporation from building a large structure (a comfort station) on a strip of land between a row of residential properties of which the appellant occupies one, and the waters of Boundary Bay. The land on which the building in question is to be constructed has for years been described in the land registry system as ‘Foreshore Reserves’. It should, however, be noted that the actual location of the partly completed structure is in front of two residential lots fronting on the ‘Foreshore Reserves’ which are contiguous to the appellant’s lot. The ‘Foreshore Reserves’, being the characterization adopted in the early conveyances by the developers of the Crescent Beach development and carried forward in some of the land registry records for many years, consist of the land lying between the residential lots, and the actual foreshore (being the land situated between low tide and high tide and which forms no part of the issue herein). These ‘Foreshore Reserves’ are divided into four blocks by streets on the plan which run down to the shoreline of Boundary Bay. These ‘Foreshore Reserves’ were later redescribed by the respondent municipal corporation and thereby carried into the land registry system as “Lots 44 to 47 inclusive”, but for convenience I will refer to them as a group by their original and long-standing description, namely ‘Foreshore Reserves’.
In order to properly approach the issues arising herein and the proper application of the Land Registry Act, R.S.B.C. 1960, c. 208, of British Columbia to the several transactions giving rise to this dispute, it is necessary to set out some of the history of the development of the Crescent Beach area.
On February 21, 1912, a land developer deposited in the registry office under the then Land Registry Act “a registered map or plan of subdivision” No. 2200, which plan included several hun-
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dred residential lots and the four blocks of land between these lots and the waters then known as Semiahmoo Bay, now known as Boundary Bay, then identified as the ‘Foreshore Reserves’. These four blocks are separated one from the other by streets on Plan 2200 running down to the water’s edge.
The appellant is the registered owner of Lot 38, Plan 2200, being a lot fronting on the ‘Foreshore Reserves’ the northeast corner of which is twelve feet from the southwest corner of the structure now partially installed on the ‘Foreshore Reserves’ by the respondent.
The respondent corporation acquired the ‘Foreshore Reserves’ by tax sales in 1949 and 1954 although no certificate of this land was issued to the respondent until January 30, 1963. In July 1973, the respondent commenced the construction of the comfort station, being a structure about eighty-five feet long and thirty-five feet wide.
A detailed examination of the title history of the present holdings of the appellant and the respondent is necessary to focus on the threshold issue as to whether or not an easement has arisen in favour of the appellant over and across the ‘Foreshore Reserves’ now owned by the respondent; as well as the ultimate issue of the rights or obligations of the respondent in respect of this land under the applicable provisions of the Land Registry Act of British Columbia.
The title of the appellant is rooted in the deposit in the Land Registry Office of Plan 2200 and the subsequent conveyance of Lot 38, Plan 2200, from the development company registered in April 1914. The form of deed used was the standard adopted by the development company for the whole of the plan of subdivision, and from the point of view of these proceedings, the following are the significant terms thereof:
WHEREAS the said Grantor is placing upon the market, as a summer resort, the property known as Crescent Beach, and it is advisable that certain restrictive covenants hereinafter mentioned should be contained in the conveyances of the land hereinafter described,
AND WHEREAS the said Grantee has represented to the said Grantor that he will comply with the said restrictive
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covenants and hereby accepts this conveyance subject to such restrictive covenants as a condition of the said Grantor executing this conveyance,
AND WHEREAS the foreshore reserves shown on the plan hereinafter mentioned of the said Crescent Beach are to be held by the Grantor, its successors and assigns, so far as it is capable of so doing, for the purpose of giving free access to the waters of Semiahmoo Bay to the persons purchasing sub-divisions in Lots 52, 231, Group II and the East portion of the Northeast quarter of Section 19, Township One (1), District of New Westminster, and are not to be alienated by the Grantor,
AND WHEREAS subject to the said restrictive covenants, the said Grantor hath sold to the Grantee, and the Grantee has purchased of and from the said Grantor the lands, hereditaments and premises herein described,
WITNESSETH that in consideration of Twelve Hundred ($1200.00) Dollars of lawful money of Canada now paid by the said Grantee to the said Grantor (the receipt whereof is hereby by It acknowledged), It the said Grantor DOTH GRANT unto the said Grantee her heirs and assigns FOR EVER:
ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the District of New Westminster, in the Province of British Columbia, and being composed of Lot Thirty-eight (38),
in Block numbered Four (4), according to the subdivision of a portion of District Lot 52, Group II, according to the registered map or plan of subdivision deposited in the Land Registry Office at the City of New Westminster, and numbered 2200,
TOGETHER with all buildings, fixtures, commons, ways, profits, privileges, rights, easements and appurtenances to the said hereditaments belonging, or with the same or any part thereof held or enjoyed, or appurtenant thereto; and all the estate, rights, title, interest, property, claim and demand of it the said Grantor in, to, or upon the said premises.
TO HAVE AND TO HOLD unto the Grantee her heirs and assigns, to and for her and their sole and only use forever: SUBJECT, NEVERTHELESS, to the reservations, limitations, provisoes and conditions expressed in the original grant thereof from the Crown, and subject also to the performance and observance by the Grantee her heirs and assigns, of the covenants hereinafter contained.
The deed also included a covenant by the grantee in favour of the grantor developer and “its successors and assigns” and also “as a separate covenant with every owner or owners for the time being of any part of the said Crescent Beach” in
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which is set out a series of restrictive covenants applicable to the grantee’s lot.
The title to the ‘Foreshore Reserves’ likewise finds its origin in the deposit in the Land Registry Office of the Plan of subdivision 2200 wherein the four blocks of ‘Foreshore Reserves’ between the row of lots closest to the water and the water itself are set out.
On January 10, 1917, the development company conveyed all of the unsold lots comprised in Plan 2200 to a trustee. The conveyance was registered in January 1917 as No. 22841E. From the character of the parties to the deed and the various recitals and terms contained in it, the deed appears to be part of an arrangement established to pay off the indebtedness of the developers out of future land sales in the development, and thereafter to divide the profits or surplus revenues amongst the several equity owners in the Crescent Beach development. In the description of the land so conveyed there was inserted in handwriting “those four separate parcels marked Foreshore Reserves all as shown on subdivision 2200”. The deed included the following terms which are of interest in these proceedings:
TO HAVE AND TO HOLD unto and to the use of the said Trustee, his heirs and assigns forever, upon the trusts and with and subject to the powers hereinafter expressed concerning the same, that is to say:
(c) All conveyances of the said land shall be made by the Trustee subject to the restrictive convenants and conditions used in the sale of the properties already sold and in subdivisions 2200 and 2482, and which are contained in the form of Conveyance hereunto annexed and marked with the letter “A”.
The reference to the form of conveyance in the above quotation is to the standard form that was used in the conveyances to the predecessors in title of the appellant and the other purchasers of residential lots in the Crescent Beach development. The deed concluded with the grant of the usual power to the trustee to deliver good title free from any claims by the grantors, whose remedy against the trustee was limited to damages only.
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In the sense of the state of the art of conveyancing today, both the plan and the terminology used in its execution seem vague and incomplete. For example, neither in the first years of the development nor in the second era (after the conveyance of the residual lands to the trustee as aforesaid) was any provision made for either the form or the funding of the permanent retention of the non-residential area (the ‘Foreshore Reserves’ blocks) by any entity private or public. Nor indeed was there any provision relating to the dedication of any lands, other than those already dedicated in the street patterns shown on Plan 2200, to the public through any municipal agency. Neither was there any express reference in the standard form of conveyance used in the sale of lands in the Crescent Beach development, to any intention on the part of the developer to dedicate or maintain the ‘Foreshore Reserves’ for the use of the purchasers of residential lots, including the appellant, in the future. There is, of course, the strongest implication or inference that such is indeed an inherent part of the conveyancing plan, but this issue will be discussed later.
The trustee received in due course a certificate of title under the Land Registry Act upon which reference was made to Deed 22841E, the conveyance from the developers to the trustee.
By order of the Supreme Court of British Columbia made on May 26, 1939, a successor trustee was appointed. That order was in due course deposited in the Land Registry Office and a new certificate of title was duly issued to the successor trustee. The new certificate of title again referred, on its face, to the existence of the trust by describing the new grantee as “John Alfred Wright in Trust” and included a directive, “See Deed 22841E and Filing No. 21796”. The deed to which reference is there made is the conveyance to the first trustee in 1917 and the latter filing being the order of the Supreme Court.
By tax sales in 1949 and 1954, the respondent corporation acquired the title to the ‘Foreshore Reserves’ but no certificate of title was issued to the respondent until January 30, 1963. Prior to 1963 the certificate described the four parcels as “Foreshore Reserves Plan 2200”, and the reverse
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side of the certificate made only a bare reference to the “Surrey Tax Sales”. No reference is made in this 1963 certificate of title to the “in trust” notation in the prior certificates, to the conveyance No. 22841E or to Filing No. 21796. To complete the history of the transaction, it should be noted that in 1963 the respondent filed a new plan covering the area described in the old Plan 2200 as the Foreshore Reserves’ and in which the Foreshore Reserves’ are redescribed as Lots 43 to 47 inclusive. This new plan is No. 25109 and, immediately upon its registration, there issued a new certificate of indefeasible title to the respondent, also dated January 30, 1963, which also described the Foreshore Reserves’ as Lots 43 to 47 inclusive, Plan 25109, but made no reference to the 1917 conveyance to the trustee, to the appointment in 1939 of the successor trustee, or to any “in trust” status.
Meanwhile the appellant’s title to Lot 38 was reflected in a certificate of indefeasible title issued to her predecessor in title in November 1963. No mention is made of any right or interest in or in respect of the Foreshore Reserves’ or Lot 47, but only to Lot 38 Plan 2200. Recorded on the reverse side of this certificate is a reference by deed number to the restrictive covenants set forth in the original grant of Lot 38 from the Crescent Beach developer in 1914 to the appellant’s original predecessor in title.
The direct and narrow issue arising herein is whether or not the Registrar erred when issuing the certificates of title to the respondent corporation in 1963, that is, whether reference should have been made to the prior trust and conveyance to the trustee as was done in the previous certificates of title issued with respect to the Foreshore Reserves’; and whether in any case the respondent holds these Foreshore Reserves’ subject to an easement arising in law with respect to Lot 38.
Against this background the appellant in these proceedings seeks, inter alia, an injunction restraining the respondent from erecting a building on what is now described as Lot 47, and an order directing the Registrar of Titles to amend the respondent’s title to Lot 47 so as to reflect the
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easement against that lot as asserted by the appellant.
The Existence of an Easement
The learned trial judge, whose reasons are reported at (1974), 45 D.L.R. (3d) 280, found that an easement had been granted in favour of the owner of Lot 38 to cross over the ‘Foreshore Reserves’, including Lot 47 being the portion thereof immediately between the appellant’s lot and the water’s edge. Furthermore, the easement so found did not limit the appellant to a direct passageway between her frontage and the waters of Boundary Bay, but rather consisted of a right to cross over or promenade along the ‘Foreshore Reserves’ in total, presumably in common with the owners of all of the other lots in Plan 2200. Such a right, if it exists, would in fact be enjoyed not only in common with the other land owners in Plan 2200 but also the general public who have recourse to the ‘Foreshore Reserves’ by reason of the streets running down to the Bay and which interrupt or separate the reserves into four blocks. It should also be noted that the result has the necessary effect of finding a like right in respect of lots in Plan 2200 which do not front on the ‘Foreshore Reserves’ but which are situated in a second tier of lots behind that in which the appellant’s Lot 38 is located.
In the Court of Appeal, whose reasons are reported at (1975), 54 D.L.R. (3d) 250, two of the members of the Court assumed “for the purpose of this appeal” that the trial judge was right in finding that the appellant, apart from the consequences of the tax sale, was “entitled to free and unrestricted access to the sea from every part of [her] frontage[s] over every part of the strip of land in question”. They found, however, that the respondent corporation, on a proper application of the provisions of the Land Registry Act, held Lot 47 free from any such right in the appellant. Carrothers J.A., dissenting, determined that the disposition made at trial was correct (subject to a difference with reference to the direction to the Registrar) and that there was in law, by reason of the 1914 conveyance, an easement in favour of the owner of Lot 38, across all four lots comprising the ‘Foreshore Reserves’. The question raised in these
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proceedings with reference to the rights, if any, of the appellant with respect to Lot 47 now owned by the respondent corporation, can be stated in this way: Does the appellant have any right, known in law and enforceable against the respondent as the present owner of Lot 47, for the use and enjoyment of the ‘Foreshore Reserves’? We are here concerned only with the appellant’s rights, but the record reveals others to be in a like position. To qualify for such a right, the appellant must, of course, demonstrate that she possesses an easement, as that right is known in law over Lot 47 specifically.
The development at common law of the law of easements in the nature of rights-of-way has been conveniently traced and summarized by the text writers (vide Gale on Easements, (1972, 14th ed.) at pp. 261-286; Cheshire’s Modern Law of Real Property (1976, 12th ed.) at pp. 516-586). The grant of rights assumed by all of the parties involved in the Crescent Beach development over the years, commencing in 1914, would appear to qualify as easements in favour of the lot purchasers, including the appellant. There is the requisite relationship between a dominant and servient tenement wherein the dominant tenement is accommodated, serviced or supported by the servient tenement; between them there is a connection of real benefit to the former; and which is of such a character as would ordinarily be classified as a right or condition running with the land, and not merely a contractual right enuring to the benefit only of persons who are parties thereto at its inception.
At one time there may have been some doubt as to whether a right to cross over or move generally about on another’s land was a right known in the common law as an easement, but this matter was put to rest by Sir Raymond Evershed, Master of the Rolls, speaking for the Court of Appeal of England in Re Ellenborough Park. Re Davies. Powell and Others v. Maddison and Another[2]. The Court was there concerned with the right of owners of residential lots adjacent to a common
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garden, and the factual similarity to the circumstances revealed in this appeal should be noted.
In the Ellenborough Park case, the alleged common area butted on the sea and was bisected by a street. Some of the lots in the development did not abut the park but were located in a second tier of lots with access to the common garden by means of the bisecting street. The Court of Appeal there found that a right reserved for recreational or leisure purposes was within the definition of an easement, and as such was recognized in law. As for the complication of public access to the servient tenement, the Court had this to say (at pp. 678, 679):
We do not think, however, that Willes, J., was intending to say that the right of a man to use another person’s property for the purposes of his own estate cannot amount to an easement, unless it is incapable of being in fact enjoyed by anyone other than the grantee of the right.
And again (at p. 679):
If, however, the learned judge was intimating that, if a right be of such a character that it can factually (as distinct from lawfully) be of benefit to persons other than the owner of the estate to whom the right is granted, it is incapable of legal recognition as an easement, the learned judge was enunciating a principle which, so far as we are aware, has no other authority to support it.
As for persons owning property which did not abut the park, the Master of the Rolls stated (at p. 681):
The result is not affected by the circumstance that the right to the park is in this case enjoyed by some few houses which are not immediately fronting on the park. The test for present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the communal garden) of the houses to which the enjoyment is annexed. But we think that the test is satisfied as regards these few neighbouring, though not adjacent, houses. We think that the extension of the right of enjoyment to these few houses does not negative the presence of the necessary “nexus” between the subject-matter enjoyed and the premises to which the enjoyment is expressed to belong.
Finally, the Court found that the right classified as an easement may include (depending of course
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on the form and substance of the grant) a right (at pp. 683, 684):
of wandering at will round each and every part of the garden except, of course, such parts as comprise flower beds, or laid out for some other purpose which renders walking impossible or unsuitable…. Wandering at large is of the essence of such a right and constitutes the main purpose for which it exists. A private garden, on the other hand, is an attribute of the ordinary enjoyment of the residence to which it is attached, and the right of wandering in it is but one method of enjoying it.
In my view, these observations apply all the more emphatically in the case of a beach pertinent to a resort development (vide Wells v. Mitchell and Brown[3]; Carpenter et al. v. Smith[4]).
Citing for his authority the Ellenborough case, the learned author of Cheshire’s Modern Law of Real Property, supra, states (at p. 521):
Again, it has been held that a jus spatiandi, i.e. a right to wander at large over the servient tenement, is sufficiently determinate to constitute an easement if it is limited by express grant to a particular house or group of houses and is exercisable over an adjoining garden.
This, of course, only carries us to the question as to whether any grant of easement has here been made by and between the predecessors in title of the parties to these proceedings. In the Ellenborough case, the grant was clear and the question was whether such a grant took on in law the character of an easement. The question before us is whether, accepting that the law of easement is settled on the issue of the status in law of a jus spatiandi, such a grant has here been made.
In anticipation of this root question, the relevant recitals and operative covenants of the 1914 deed to Lot 38 have already been set out. There is, of course, no express covenant by the grantor to make available and to continue to make available to ‘Foreshore Reserves’ to the grantee in common with all others in the Crescent Beach development. Can such a covenant to dedicate to the owners of lots in the Crescent Beach development these ‘Foreshore Reserves’ and to the use in common thereof, be implied so as to found in the appellant
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the right, and in the respondent the concomitant obligation, with respect to these ‘Foreshore Reserves’? The principal basis for any such implication is the third recital in the 1914 conveyance to the appellant’s predecessor in title, wherein it is stated that “…the Foreshore Reserves… are to be held by the grantor, its successors and assigns… for the purpose of giving free access to the waters of [the] Bay to the persons purchasing subdivisions…”. The formal granting clause contains a conventional supporting grant of “…all rights, easements and appurtenances to the said hereditaments…”.
The pattern or scheme inherent in the conveyancing employed in the Crescent Beach development is clearly inferred in the covenants by the grantee in favour not only of the grantor but of “every owner or owners for the time being of any part of the said Crescent Beach… and with the Grantor as Trustee of such owner or owners…”.
Beyond the inferences and implications in the grant to the appellant’s predecessor in title, there are similar implications to be drawn from the 1917 conveyance of the ‘Foreshore Reserves’ and the unsold residential lots by the Crescent Beach developers to a trustee on terms already set out above. The principal supporting provision in that instrument was a direction to the trustee to make “all conveyances… subject to the restrictive covenants and conditions used in the sale of the properties already sold in subdivision 2200…” which, of course, included the terms and conditions already mentioned.
The learned trial judge construed these terms as establishing an easement, entitling the appellant to cross over the ‘Foreshore Reserves’ and requiring that these Reserves be maintained free of obstacles such as that being constructed by the respondent. The judgment at trial reveals the reasoning behind this conclusion ((1974), 45 D.L.R. (3d) 280 at pp. 286, 287):
The inference that I draw of the over-all intention is fortified by several additional circumstances:
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(a) The word “reserve” itself implies that the parcels so designated will be reserved for the use of the neighbouring owners;
(b) The third recital in the typical deed is specific as to the provision that one purpose at least of the reserves is to give free access to the waters of the bay;
(c) The restrictive covenant for uniform setback I presume is imposed for esthetic reasons and from the standpoint at least of the waterfront lots to prevent obstruction by buildings of the view from each lot of the water. This purpose would be obviously defeated if it were contemplated that buildings could be constructed on the reserve parcels;
(d) Land Registry Act, R.S.B.C. 1911, c. 127 s. 90 in force at the time of the creation of the subdivision, required that subdivision plans show “all roads, streets, lots and commons”. The foreshore reserves were not roads or streets, and were not designated lots. It would be fair to conclude, I think, that it was intended that they be within the category described as “commons”.
Much of the support for any inferred grant of easement here is found in the recitals above quoted.
In Aspdin v. Austin[5], Denman C.J., in construing a contract, had this to say (at p. 683) with respect to the weight to be accorded to a recital:
It will be found in those cases that, where words of recital or reference manifested a clear intention that the parties should do certain acts, the Courts have from these inferred a covenant to do such acts, and sustained actions of covenant for the nonperformance, as if the instruments had contained express covenants to perform them.
A situation somewhat similar to that arising in this appeal was considered in Mackenzie v. Childers[6]. The headnote accurately sets out the facts:
The deed contained a recital that it was intended to be a part of all future contracts for sale of the plots that the several purchasers should execute the deed, and be bound by the stipulations contained in it; and thereby it was expressed that each purchaser covenanted with the vendors and with the other purchasers to conform to certain stipulations restrictive of the mode of building on the plots, but there was no express covenant to the like
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effect by the vendors. Some of the plots were sold, and the several purchasers executed the deed, as did also the vendors. For twenty years subsequently the stipulations were observed, and as plots were from time to time sold the respective purchasers executed the deed.
Kay J. in discussing the appropriate interpretative techniques to be applied to a recital, stated (at p. 275):
I am clearly of opinion that the recitals in this deed do not mean that the intention was one which the trustees were at liberty to change, but that the meaning is that the land coloured green, whether sold or unsold, should not be used in a manner contrary to the building scheme, or, to take the very point now in controversy, that none of the lots marked on the building plan should have more than one house built on it.
Then, if that is the meaning of this deed, what is its effect? It is a deed inter partes, the several parties being the vendors and the purchasers who execute. No formal words are necessary to make a covenant in such a deed. A statement of a binding intention on the part of the vendors who execute the deed, made, on the face of it, for the purpose of inducing the several purchasers to buy, is as good a covenant as could be made by the most formal words.
This principle was adopted by Clute J. in Re Lorne Park[7], at p. 603, and has been interpreted by the learned author of Odgers’ Construction of Deeds and Statutes, (1967, 5th ed.) at p. 159, as authority for the following statement:
For instance, a recital of an intention to create restrictive covenants on the part of the vendors who execute the deed and inserted it as an inducement to purchasers to buy may operate as if it were a formal covenant contained in the operative portion of the deed.
The 1917 conveyance to the trustee raises the question as to the proper interpretation and weight to be accorded to the habendum already quoted, which, in essence, directs the trustee:
TO HAVE AND TO HOLD unto and to the use of the said Trustee, his heirs and assigns forever, upon the trusts… (c) all conveyances.… shall be made by the Trustee subject to the restrictive covenants and conditions used in the sale of the properties already sold… in subdivisions 2200…”
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Warrington L.J., speaking in Gregg v. Richards[8], interpreted the meaning of a habendum which provided “to hold the same subject to and with the benefit of all such easements and privileges in the nature of easements as are now subsisting in respect of the property hereby conveyed…” as follows (at p. 533):
That is “subject to,” so far as the advantage of the vendor is concerned, and “with the benefit of” so far as the advantage of the purchaser is concerned: it is a mutual provision giving to each the benefit of privileges in the nature of easements now subsisting in respect of the property conveyed and the property adjoining of the vendor…. Although I thoroughly agree that you cannot read a habendum as enlarging the description of the parcels, on the other hand it seems to me that when you have the habendum in such terms as we have it here, it is strong evidence that the parties to this conveyance acted on the assumption that the easements and privileges in the nature of easements then subsisting would pass to the purchaser and, therefore, that the words expressed in t