The Ontario Superior Court of Justice decision in Arcon Property Holdings Ltd. v. Nelson, 2019 ONSC 2267, involved a dispute between cottage owners over easement rights related to a 15 foot wide strip of land near Grand Bend.
The right-of-way was mainly a paved road used by the cottage owners to access their properties from the road but it also extended past the pavement to the waterfront. The applicant complained that the respondents parked their vehicles on the right-of-way which prevented them from accessing the beach, launching their boat, building ramps and structures to facilitate launching their boat and parking a trailer in their driveway.
The applicant sought an order prohibiting the respondents from parking on the right-of-way and interfering with their easement rights. The Court found that the applicant’s easement was merely for “ingress and egress, in, over and upon” the property and did not provide the applicant with the right to access the waterfront with a vehicle to launch their boat. After considering the language of the easement, its historical and customary use, and intended or contemplated use when the easement was created, the Court found that the easement only permitted access by foot.
Next, the Court found that the respondents were entitled to a prescriptive easement to park their vehicles on the right-of-way. The respondents, and their family, had parked their vehicles there since 1955 and their use was as of right meaning it was open, uninterrupted, notorious and continuous, without objection from the property owner.