As the poet Robert Frost once stated, “Good fences make good neighbours.” While the adage is often proven true, it is also true that many legal disputes arise over fences, laneways and other issues that relate to the ownership of real property. Legal claims with respect to residential property ownership may arise in any number of circumstances, including as a result of a suffering injury while you are on someone else’s property, whether commercial or residential and disputes over property lines that often arise when one neighbour seeks to erect a fence, for example, between their property and another. Claims in relation to property ownership may also include a claim of nuisance when a neighbouring property owner behaves in such a manner as to cause a nuisance to a neighbouring property owner.
An example of a claim for nuisance related to property ownership is found in the recent decision of the Ontario Superior Court of Justice in the case of Kranenburg v Grice.
Neighbour Dispute Arises After Decades of Peaceful Co-Existence
The Kranenburg v Grice lawsuit was a dispute between neighbours. William Kranenburg (“Kranenburg”) and Brian and Donna Grice (“the Grices”) are neighbours, each of whom owns a property along the Saugeen River. While the Grices live on their property and rent their land to local farmers, Kranenburg resides in another city and operates a “Hidden Valley Campground” campground on his land. While the parties had peacefully coexisted for several generations, a dispute arose in 2020 that gave rise to a legal cause of action for nuisance.
The crux of the parties’ dispute related to a deeded right-of-way described by the court as a laneway. The laneway travelled through the Grice property and terminated at the entrance to the Kranenburg property, which is landlocked and is only accessible via the laneway. The Grices also use the laneway to access their property. The court described the laneway as “a single-lane, gravel road, 800 feet long and 30 feet wide, which includes sharp turns and steep hills. It has no winter maintenance, no lighting, and no permanent signage”. Although Kranenburg does not reside on his property, he does maintain the laneway during the camping season.
Kranenburg brought a claim against the Grices for nuisance because he claimed that the Grices had installed two swinging metal gates on the laneway – one at the entrance and a second at a juncture past the Grice residence but before the entrance to the Kranenburg property. Kranenburg asserted that, in so doing, the Grices were intentionally restricting his customers’ access to the campground. He further claimed that the Grices had planted trees along the side of the laneway, which had caused him a further nuisance. The Grices defended the claim because they had not impeded access to the campground. After all, the gates had never been locked. Moreover, they alleged that the gates were a necessary addition because of the increased traffic on the laneway since 2020, impacting their cattle operation and the safety of all persons on their property. The Grices ultimately asserted that “Kranenburg has overburdened the Laneway by operating a come-and-go trailer park and event space on a property that had historically always [been] used as a youth summer camp.” They sought an injunction against Kranenburg to restrain his use of the laneway and asked the court to award them $100,000 for the damage they had suffered when Kranenburg cut down the trees along the side of the laneway.
Had Kranenburg Overburdened the Laneway?
The court began by assessing whether Kranenburg had overburdened the laneway. The Grices provided evidence at the trial that camp on Kranenburg’s property had always been operated as a youth summer camp that comprised a few seasonal trailers. However, in 2020, “Kranenburg began marketing “Hidden Valley Campground” as a come-and-go trailer park and event space”. The Grices argued that the change in use of Kranenburg’s property had resulted in a dramatic increase in the number of trailers and other vehicles that used the laneway, which the Grices contended had “overburdened the Laneway and created road maintenance issues safety issues, negatively impacted their farm operations, and impeded the enjoyment of their property.” While Kranenburg admitted that he had changed his business model over the course of the COVID-19 pandemic, he insisted that the resultant increase in traffic had not overburdened the laneway, and further claimed that he provided adequate maintenance of the laneway in response to any increased traffic.
The Legal Principles Applicable to Overburdening Roadways
The legal test for determination of whether a roadway has been overburdened was outlined by the court in the case of Sunnybrae Springbrook Farms, in which the court stated that “overburdening of a right-of-way occurs when it is used excessively or significantly beyond the rights and nature conveyed in the easement.” To determine the rights and nature conveyed by the easement, the court must consider the instrument or document that created the easement. In this case, neither party could locate the document in question. Still, they agreed that the legal instruments that created the right-of-way, in this case, did not speak to any limitations on restrictions of use of the laneway and that the purpose of the right-of-way was solely to allow entry and exit to and from the Kranenburg property.
The court reviewed the historical use of both properties. It noted that, while the Kranenburg property had long been used to operate a youth summer camp, the expansion in 2020 to use the property as a “come and go trailer park” signified a major change to the normal use of the property.
Moreover, a review of the historical use of the laneway revealed that:
“The Laneway’s use was historically restricted to ingress and egress to the Kranenburg property for the following vehicles: buses carrying youth campers to and from the campsite, food and garbage trucks servicing the campground, up to twenty seasonal recreational trailers, a few passenger vehicles and trucks used by residents, guests and staff, and tractors and large farm equipment required for the Grices’ cattle and haying operations”.
Given this historic usage, the court easily concluded that Kranenburg’s decision to change the use of his property had resulted in an overburdening of the laneway “by increasing traffic beyond the reasonable ambit of the right of way”. The court further concluded that:
“The increased traffic has a direct impact on the Grices’ enjoyment of their recreational property because the Laneway (and therefore the traffic) cuts right through the Grice property and would be visible and audible from most vantage points”.
For those reasons, the court granted an injunction that would restrict Kranenburg’s use of the laneway to only buses carrying campers and conference attendees, up to 20 seasonal recreational trailers, food and garbage trucks necessary to service the properties, and passenger vehicles belonging to the Kranenburgs and campground staff.
The Legal Principles of Neighbour Nuisance
The Court next considered whether the Grices had created a nuisance by planting trees along the side of the laneway and installing gates on the laneway. The Grices acknowledged that they had planted the trees but claimed to have done so only because they had to replace the trees that Kranenburg had inappropriately cut down. The Grices further acknowledged their installation of two gates on the laneway, which they claimed were necessary to limit the potential of interactions between humans and the cows that resided on the Grice property.
For a court to substantiate a claim of private nuisance, it must be satisfied that the interference with a property owner’s use and enjoyment of their own land is substantial and unreasonable. In this case, the court found it was reasonable for the Grices to have taken steps to ensure that the livestock on their property did not escape or suffer injury; as such, the installation of the gates was justified, reasonable, and not a nuisance. As for planting trees alongside the laneway, the court stated that there was “insufficient evidence” that such trees impeded the laneway or caused a nuisance in any other manner.
As to the Grices’ claims that Kranenburg had himself caused a nuisance by cutting down existing trees along the laneway, the court was satisfied that Kranenburg’s actions were more trivial than substantial, such that the test for private nuisance was not satisfied. However, the court also noted that while Kranenburg was the dominant tenant in terms of the laneway right-of-way, the property on either side of the laneway was owned by the Grices, which meant that Kranenburg had no legal right to cut down trees or otherwise interfere in any way with the property bordering the laneway. As such, the court advised Kranenburg not to take any action with respect to anything bordering the laneway in the future without first consulting the Grices.
Contact Tierney Stauffer in Ottawa Today for Your Real Estate Legal Needs
If you are involved in a dispute related to property ownership, whether commercial (including landlord and tenant matters) or residential, the team of real estate lawyers at Tierney Stauffer LLP are here to help. Our skilled team will help guide you through the confusing legal process, using their experience and expertise to ensure your rights are asserted and preserved.
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