There is a right-of-way through my property that dates back to horse and buggy days. Traffic has obviously increased; it is now being used by heavy construction equipment to build and remodel cottages beyond our property. Is this legal? Can it be stopped? Can an old RoW be revoked because of a substantial change in use?—Jan Le Clair, Sand Lake, Ont.
Ian Keay, a managing partner with MKC Law Office in Peterborough, Ont., is answering your questions with…more questions. “Does the party using the right-of-way have that right in their deed? If the answer is no, then, does the party using the right-of-way have a prescriptive right-of-way?” (That’s when the easement is created after a party uses the road for a certain number of years, giving them a form of “adverse possession”—a.k.a. squatter’s rights—that legally allows them to use the road.)
If those using the right-of-way don’t have that right in their deed, you could apply for an injunction (a judge’s order) to keep the construction equipment off your property, says Keay. “But the party doing the construction may be able to establish a prescriptive right-of-way, which could defeat the injunction.”
Okay, back to square one. It’s true that the construction equipment might exceed “what was contemplated when the original right-of-way was granted,” says Keay. Or, the disruption could amount to “substantial interference,” considered offensive, inconvenient, or annoying to a “reasonable person.”
The former does happen. For example, a right-of-way established only so that a farmer can lead cattle to the edge of a lake to drink, or a right-of-way to only access parking. Unfortunately, “most often with ‘old’ rights-of-way, there are no restrictions or specifications whatsoever,” says Keay. “And I doubt the usage amounts to substantial interference.” (Yes, apparently, there is equipment that is more annoying than construction equipment.)
Even if it does, Keay doesn’t think that the right-of-way would be revoked. “It’s more likely that the continued use of the road by the heavy equipment could be restricted or prevented. Only a judge can do this.”
So, you might not be able to stop all traffic on the easement, but if it keeps the noisy equipment off your property, that’s a win, isn’t it? Contact a lawyer with a strong background in easements, and go from there.
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This article was originally published in the May 2022 issue of Cottage Life magazine.