Smith et al. v. Morris
 O.R. 260
ONTARIO Court of Appeal.
Middleton, Masten and Fisher JJ.A.
April 1, 1935.
Easements — Rights-of-way — Creation of right-of-way by express grant — Scope of user of way — Consideration of surrounding circumstances at date of grant — Whether owner of dominant tenement entitled to use way for passage of automobile — Whether owner of dominant tenement entitled to excavate soil so as to render way effective for purpose of reaching street level by automobile.
The grantee of an unopened right-of-way is entitled to excavate the soil over which the right-of-way exists where such excavation is necessary for grading purposes in order to render the way feasible and practicable for those objects which, in view of the surrounding circumstances including the nature of the locus in quo and the general current habits of life, must be presumed to have been intended by the parties to the grant.
An appeal by the defendant from the judgment of His Honour Judge Jackson, of the County Court of the County of York, declaring that the defendant is not entitled to excavate any soil from the right-of-way in question so as to materially alter the level thereof as it existed on December 24th, 1926, and granting an injunction against the defendant.
R. L. Kellock, K.C., and M. L. Piper, for the defendant, appellant.
H. F. Parkinson, K.C., for the plaintiffs, respondents.
April 1st, 1935. The appeal was heard by Middleton, Masten and Fisher JJ.A.
R.L. Kellock, K.C., and M.L. Piper, for the defendant, appellant, contended that before the conveyance of the lands in question to the plaintiffs and the defendant, the alteration in the grade of the street had taken place. It was absolutely essential that the right-of-way should be graded in order to be usable, and the evidence showed that the minimum safe grade was 17.8 degrees. The defendant as owner of the dominant tenement is entitled to do everything reasonably necessary to make the grant of the right-of-way to him effective: Cannon v. Villars (1878), 8 Ch. D. 415; Newcomen v. Coulson (1876), 5 Ch. D. 133; Finlinson v. Porter (1875), L.R. 10 Q.B. 188; United Land Co. v. Great Eastern R. Co. (1875), L.R. 10 Ch. 586; Gale on Easements, 11th ed. 459-463. There is a distinction for this purpose between an easement by prescription and an easement created by express grant: Williams v. James (1867), L.R. 2 C.P. 577, at p. 580. The defendant is willing to construct a retaining wall on the north edge of the right-of-way and insert steps at the westerly limit of the plaintiff’s lands. This will not injure the plaintiffs in any way, but on the contrary will be to their benefit.
H.F. Parkinson, K.C., for the plaintiffs, respondents, contended that the defendant had no right-of-way for the purpose for which he was contending. He had no right to excavate, and so destroy the plaintiffs’ land. The leading case on the subject is Allan v. Gomme and Darvell (1840), 11 A. & E. 759. It was submitted that the proposed use was a reasonable use. The rule was that the minimum amount of damage must be done to the servient tenement. Reference to vol. 10 American & English Encyclopaedia of Law, 2nd ed., p. 400; Dyce v. Hay (1852), 1 Macqueen (Scotch App. Cas.) 305, at p. 315; Vestry of St. Mary, Newington v. Jacobs (1871), L.R. 7 Q.B. 47; United Land Co. v. Great Eastern R. Co. (1875), L.R. 10 Ch. 586, at p. 592; Bridgman v. Loblaw’s Groceterias Co. Ltd. (1929), 35 O.W.N. 353; Lewis v. Wakeling (1923), 54 O.L.R. 647; Adamson v. Bell Telephone Co. of Canada (1920), 48 O.L.R. 24; Miller v. Tipling (1918), 43 O.L.R. 88; Clendenan v. Blatchford (1888), 15 O.R. 285; Williams v. James (1867), 15 W.R. 928; Dudley v. Horton (1826), 4 L.J. Ch. 104; Gale on Easements, 11th ed., p. 23; Goddard on the Law of Easements, 8th ed., p. 246. The latest case is British American Oil Co. Ltd. v. Toronto Terminals R.W. Co. (1927), 32 O.W.N. 234.
Kellock, K.C., in reply, referred to Senhouse v. Christian (1787), 1 Term R. 560; Todrick v. Western National Omnibus Co. Ltd.,  1 Ch. 561; White v. Grand Hotel, Eastbourne, Ltd.,  1 Ch. 113; Jones v. Pritchard,  1 Ch. 630.
Cur. adv. vult.
April 1st, 1935. The judgment of the Court was delivered by Masten J.A.: This is an appeal from the judgment of His Honour Judge Jackson, sitting in the County Court for the County of York, dated 4th December, 1934, declaring that the appellant is not entitled to excavate any soil from the right-of-way in question, so as to materially alter the level thereof as it existed on the 24th of December, 1926, and restraining the defendant from removing any of the soil from the right-of-way in question, where it crosses the plaintiffs’ land and granting a mandatory order for the defendant to replace the soil which has been excavated by him.
The plaintiffs own and occupy a corner lot at the south-west corner of Lawrence Avenue and Cortland Avenue in the City of Toronto. The lot has a frontage of 36 feet, 4 inches on the south side of Lawrence Avenue, and it tapers to a width of 11 feet, 11 inches at its southerly boundary. The defendant owns the adjoining lot to the west of the plaintiffs’ lot, together with a right-of-way from Cortland Avenue to his lot over the southerly 10 feet of the plaintiffs’ lot. The grant of the right-of-way in question appears in the deed to the defendant in the words following:
“Together with a right-of-way over, along and upon the southerly ten feet of the easterly part of said lot 1 adjoining the lands herein described to the east.”
The defendant acquired his lands, including the right-of-way, by deed dated the 26th December, 1926, and the plaintiffs acquired their lot by deed dated in October, 1930. That deed contains an express reservation in these words:
“Reserving a right-of-way in, over, along and upon the southerly ten feet (10′) of said lands.”
The lands of the plaintiffs which are subject to the right- of-way in question are thus 10 feet in breadth from north to south and 11 feet, 11 inches in length from east to west.
The present controversy arises from the fact that the sidewalk on the west side of Cortland Avenue is some 7 feet below the natural level of the plaintiffs’ land. The defendant desired to grade the right-of-way so as to enable him to bring his automobile to his lot. This was impossible in the conditions which heretofore existed because the grade was too steep. He therefore proceeded to lower the grade by excavating it from Cortland Avenue across that portion of the right-of-way situate on the plaintiffs’ lands. The plaintiffs object and bring this action for an injunction to restrain him from his proposed action and for damages, and the trial Judge has granted the relief asked as hereinbefore stated.
The plaintiffs offer to allow such excavation as will permit a grade of 32.5 degrees. The defendant refuses this and undertakes to build a retaining wall at the north side of the right-of-way and steps from the right-of-way leading to the plaintiffs’ garden. He claims that in this way the plaintiffs will suffer no injury, but will in fact be benefited.
I have read all the evidence and I think that the defendant undertaking to build and maintain on the right-of-way a proper retaining wall, and to construct in or through it at the westerly limit of the plaintiffs’ lot steps leading from the right-of-way to the garden or rear premises of the plaintiffs, is entitled to excavate the right-of-way so as to establish a uniform grade of 17.8 degrees. I have examined the somewhat numerous cases cited by counsel in the course of the excellent arguments addressed to us, but from most of them I have derived but little assistance. My study of the cases leads me, however, to the conclusion that an easement constituted by grant is to be interpreted according to the intention of the parties at the time of the grant, having regard primarily to the words of the grant itself, though in a case like the present, the surrounding circumstances are also relevant as evidence to interpret the rights which are implied in the particular case. In this connection I refer to the statement of the law by Jessel M.R. in the case of Cannon v. Villars (1878), 8 Ch. D. 415, at 420:
“Now I will say a word or two about the law. As I understand, the grant of a right of way per se and nothing else may be a right of footway, or it may be general right of way, that is a right of way not only for people on foot but for people on horseback, for carts, carriages, and other vehicles. Which it is, is a question of construction of the grant, and that construction will of course depend on the circumstances surrounding, so to speak, the execution of the instrument. Now one of those circumstances, and a very material circumstance, is the nature of the locus in quo over which the right of way is granted. If we find a right of way granted over a metalled road with pavement on both sides existing at the time of the grant, the presumption would be that it was intended to be used for the purpose for which it was constructed, which is obviously the passage not only of foot passengers, but of horsemen and carts. Again, if we find the right of way granted along a piece of land capable of being used for the passage of carriages, and the grant is of a right of way to a place which is stated on the face of the grant to be intended to be used or to be actually used for a purpose which would necessarily or reasonably require the passing of carriages, there again it must be assumed that the grant of the right of way was intended to be effectual for the purpose for which the place was designed to be used, or was actually used.
“Where you find a road constructed so as to be fit for carriages and of the requisite width, leading up to a dwelling- house, and there is a grant of a right of way to that dwelling-house it would be a grant of a right of way for all reasonable purposes required for the dwelling-house, and would include, therefore, the right to the user of carriages by the occupant of the dwelling-house if he wanted to take the air, or the right to have a waggon drawn up to the door when the waggon was to bring coals for the use of the dwelling-house.”
The same principle is stated in Corpus Juris, as follows:
“It is the duty of the Court to ascertain and give effect to the intention of the parties, and for that purpose it may consider the situation of the property and of the parties, and the surrounding circumstances”, referring to Lemieux v. Rex (1917), 16 Ex. C.R. 246 and Adams v. Loughman (1876), 39 U.C.Q.B. 247, at p. 258.
In the present case the words granting the right-of-way to the defendant are general. The defendant’s lot is occupied as a dwelling-house and the right-of-way from Cortland Street is, under the circumstances, to be such as will satisfy the oridinary requirements of approach to the rear premises of a dwelling, and under present habits of life in the City of Toronto would include the right to bring an automobile to a garage at the rear of the defendant’s premises.
While the burden imposed on the servient tenement is not to be increased by the action of the owner of the dominant tenement, regard must be had to the fact that the predominant idea is that the dominant tenement shall really enjoy the easement granted not as a mere theoretical right on paper, but by a real physical enjoyment of the right conferred. In the present case the plaintiffs have heretofore used the surface of the right-of-way as a part of their garden and appear to desire to continue that practice which would be naturally inconsistent with the use of any kind of a right-of- way. I observe, further, that there is a substantial difference between the grant of a right-of-way that has been in use for years, and is settled and defined or even the use of a new right-of-way that is just completed and ready for immediate use, and the case of a broad general grant of a mere right of way over lands that have never been used for that purpose and which cannot be so used till the way over them is constructed. In the latter case it is plain that the right granted carries with it by implication the right to do what is necessary to make the way feasible for the purposes intended. The predominant right of the grantee to a practicable way is, in the circumstances here existing, superior to any claims of the owner of the servient tenement on the right-of-way proper. In the present case the southerly 10 feet of the plaintiffs’ lot have never been used as a way, and in the condition in which they stood were incapable of such use, at least by an automobile. Having regard, therefore, to the fact that the defendant’s easement was granted as accessory to a dwelling- house, and that the width is 10 feet, it is manifest that in 1926 or 1927 the way was intended for use by the defendant (if he so desired) to drive his automobile from Cortland Avenue to the lands where his dwelling stood, and I think that he is entitled, if he can do so without injury to the other lands of the plaintiffs, to make the way feasible for a motor to establish such a grade as will permit him to bring his motor to the rear of his premises.
I am further of opinion that the appellant’s contention is well founded that, by constructing a retaining wall on the north edge of the right-of-way and by inserting steps at the westerly limit of the plaintiffs’ lands, the plaintiffs will suffer no injury and in fact will be benefited.
As regards the degree of the grade, I think the evidence establishes that the grade offered by the plaintiffs is dangerous and impracticable, and that the highest grade that can reasonably be permitted is that which is sought by the appellant, namely, 17.8 degrees. I am influenced in this by the fact that at the foot of the grade the right-of-way where it debouches on to Cortland Avenue crosses a sidewalk. The safety of the public walking along the sidewalk necessitates a moderate grade for motors coming down the right-of-way to the street.
For these reasons I am of opinion that the appeal should be allowed and the plaintiffs’ action dismissed, both with costs, and that the defendant’s rights should be declared in accordance with this judgment.
Appeal allowed with costs.