1890 ROGERS v. DUNCAN. Patterson J. Before dealing with the claim of prescriptive title let us consider the effect of the deed of 1860. If it gave the right of way as an easement, appurtenant to the half lot, it, of course, did so immediately on its execution. Whatever may be the legal operation of those general words contained in the printed part of the deed, it cannot be seriously supposed that, when the father conveyed to his son the tract of land abutting on a highway, he intended to give, or supposed he was giving, a private way of nearly two miles in length running in an irregular route through the rest of his land. If he had intended to impose such a servitude on his remaining land the intention would doubtless have been expressed in particular terms. Far from that being the case, the plaintiff when asked about it, cannot say that it was even spoken of. It was natural that no objection should be made to the plaintiff crossing the farm by the track that was there, or by any other route, when he visited the old home or even when he took the same road to church or market, that he had always used when he lived with his father, and which the father himself had used when the farm was all one farm, whether the produce for market was from the nearer or the farther fields. Much more must appear before the way can be recognized as used and enjoyed with the half lot conveyed to the plaintiff. It is said that the occupiers of the house in which the plaintiff first lived on his half lot used the way before James Duncan, senior, bought lot 19. The evidence of that is merely the plaintiff's recollection from the time he was twelve or thirteen years old, but what of it? On lot 19 the owner went where he pleased. When he crossed into lot 18 was it that he had a right of way appurtenant to his lot 19? No such thing is pretended. He was either a trespasser or had leave. Doubtless that tacit permission by which uncultivated lands are so commonly crossed by way of short cut or because for the time it is more convenient to cross them than to go by the highway. Thus the user previous to James Duncan senior's ownership adds nothing to the effect of the user by him after he purchased. It is well settled in England by modern decisions that a way must be a defined way in order to pass by the general words "all ways used and enjoyed" when the way is not an existing easement or a way of necessity. I shall cite, without discussing in detail, some of the recent cases on the subject. In the case of Harris v. Smith (j) I examined pretty fully the decisions down to 1876, and I refer to my judgment which begins at page 55 of the report. More recently I had occasion to discuss the subject of the creation of easements by general words in a conveyance of lands in the Province of Ontario, and I expressed opinions to which I adhere. I allude to my judgment in Carter v. Grasett (k)-not the case of Grasett v. Carter (1) that came to this court-particularly to my remarks beginning on page 704 of the report, and to the discussion of the cases there referred to. The case of Langley v. Hammond (m) probably affords the most direct example among English cases of what is or is not a defined way. A hard gravelled roadway had been made for convenience of carting heavy loads to and from a yard and farm buildings. A surrender of part of the farmyard bounded on one side by the roadway had general words which included all ways, etc., therewith used, 'occupied and enjoyed. It was held that no right to use the roadway passed. Bramwell, B., said: The ground on which I think this rule ought to be discharged is that there is here really no defined road. It is said that it is hard and gravelled, but in truth as soon as you turn out of West street you do not come into what is a road and nothing else, kept for no other purpose, but into a brick-yard when the occupier could, and no doubt did, go in any particular direction he desired. But this is not a way of such a definite kind as to pass under general words. It is no more a way (if I may use the illustration) that the short cut (j) 40 U.C.Q.B. 33, 55. (1) 10 Can. S.C.R. 105. 1890 ROGERS v. DUNCAN. Patterson J. 1890 ROGERS v. DUNCAN. Patterson J. a man may take across his room from the piano to the fireplace is a way. In one sense, no doubt, it is a way that he may use, but he only uses it equally with ways in other directions, by virtue of his rights of possession, not because there is any road made there, but because it is the shortest cut to the place he wishes to get to. The necessity for the way being a defined way in order to pass under the general words has been in subsequent cases uniformly insisted on, following the principle thus stated by Bramwell, B., and usually with express reference to the passage I have quoted from his judgment. In Kay v. Oxley (n) his statement of the law was expressly approved. So also in Brett v. Clowser (o), where the general words were "ways, etc., to the said premises belonging or in any wise appertaining" which were held by Denman, J., not to be equivalent to the words "now used and enjoyed." The rule is stated by Mellish, L.J., in Watts v. Kelson (p) in these terms: We may also observe that, in Langley v. Hammond (q), Baron Bramwell expressed an opinion, in which we concur, that even in the case of a right of way, if there was a formed road made over the alleged servient tenement to and for the apparent use of the dominent tenement, a right of way over such road might pass by a conveyance of the dominant tenement with the ordinary general words. That passage is quoted by Fry, J., in Barkshire v. Grubb (r) the learned judge adding: I adopt that view. I think that when there are two adjoining closes, and there exists over one of them a formed and constructed road which is in fact used for the purposes of the other, and that other is granted with the general words "together with all ways, now used and enjoyed therewith," a right of way over the formed road will pass to the grantee even though that road had been constructed during the unity of possession of the two closes and had not existed previously. In Bayley v. Great Western Ry. Co. (s), Fry, L.J., again (q) L. R. 3 Ex. 161. (n) L.R. 10 Q.B. 360. (0) 5 C.P.D. 376. (p) L.R. 6 Ch., at p. 174. (s) 26 Ch. D. 434, 457. enunciating the rule, speaks of the way to which it applies as "a made and visible way." In the case before us the lane that ran east and west through lot 18 appears to have been a defined way, but the track which led into it from the north would not in my judgment come within that definition as I understand it to be used in the English cases. It was merely the track made by the waggon wheels, not a strip of any fixed width separated or capable of being separated from the adjoining land. The track on the ground was doubtless evidence of the fact, which might have been proved if the tracks were not there, that the driving from year to year was substantially over the same ground, but there was nothing that approached a made or constructed road such as the English cases deal with. A right of way might doubtless be acquired by express grant or by prescription or as a way of necessity where no characteristics of a formed road existed. An instance of such a way occurs in the case of Wimbledon and Putney Commons Conservators v. Dixon (t), where the title was by immemorial user. Such a way would not, as I apprehend, pass under a conveyance like that before us, unless it were a way of necessity. But the English rule, while it is the rule in Ontario, requires to be applied with attention to circumstances, such as the condition of the lands when the conveyance was made, the statutory arrangement of highways between concessions and on certain side lines between lots, and the practice through the country of making ways for convenience over uncultivated lands. It has been always well understood in such cases (said Sir J. B. Robinson, in Reg. v. Plunkett (u)), that whenever the public allowances should be opened and made fit for use they would be adopted, according to the evident intention, and the "trespass roads," as they were commonly called, would be abandoned. Reg. v. Plunkett was an indictment for obstructing an alleged highway which had been a travelled road for many (u) 21 U.C.Q.B. 536. (t) 1 Ch. D. 362. 1890 ROGERS v. DUNCAN. Patterson J. 1890 ROGERS v. DUNCAN Patterson J. years and on which public money had been expended. It was held not to have been dedicated to the public. The facts concerning the user of the road in such cases and the principles acted on in dealing with them are essentially similar to those which we are considering. In The Queen v. Ouellette (v) the same question arose, and was dealt with in the same way, and in Dunlop v. The Township of York (w) the late Chief Justice of Ontario, then Spragge, V.C., holding that the dedication of a highway there set up had not been established, remarked (p. 222): I may add that in a new country like Canada it would never do to admit user by the public too readily as evidence of an intention to dedicate. Such user is very generally permissive, and allowed in a neighbourly spirit, by reason of access to market or from one part of a township to another being more easy than by the regular line of road. Such user may go on for a number of years with nothing further from the mind of the owner of the land, or the minds of those using it as a line of road, than that the rights of the owner should be thereby affected. Features of this kind will not be looked for in contests respecting ways in the English courts, yet something of the same sort entered into the discussion of Macpherson v. Scottish Rights of Way and Recreation Society (x), where a way over a mountain in the Highlands was in question. I discussed in Carter v. Grasett (y) the propriety of construing the general words "therewith used and enjoyed" in deeds of lands in Ontario with reference to the circumstances under which the deed was given, the words not being satisfied by any actual use and enjoyment that happened to come within their literal meaning, but such use and enjoyment being necessary as bore something of the character of an easement appurtenant to the dominant tenement. The easement there claimed was light. The owner of building lots 8 and 9 which adjoined each other, built a house on lot 8 and sold the lot granting, by the original general printed (v) 15 U.C.C.P. 260. (x) 13 App. Cas. 744. |