May 25, 2018
Morissette, Healy, Roy
Appeal from a judgment of the Superior Court allowing an application for a permanent injunction and dismissing a cross-application. Allowed.
On November 8, 1972, the Quebec government authorized the respondent, by order in council, to build a transmission and distribution line between the Jacques-Cartier and Duvernay transformer stations and acquire the necessary servitudes for that purpose. The respondent therefore issued expropriation notices on the lots that are now owned by the appellants. Agreements were then entered into specifying the purpose of the servitudes granted. In 2014, the respondent decided to build a new electricity transmission line for the Chamouchouane–Bout-de-l'Île (Cham–BDI) project. The trial judge found that the respondent had real servitudes on the appellants’ land allowing for the passage of the planned electricity transmission line. He therefore ordered the appellants to provide access and cease all obstruction so that the work necessary to carry out this project could be performed.
A servitude resulting from expropriation is a servitude established by operation of law. In this case, the 1972 order in council, notices of expropriation, and deeds of servitude all limit the servitudes to what is necessary for the construction, operation, and maintenance of the electricity transmission lines between Jacques-Cartier and Duvernay. The respondent cannot therefore rely on these servitudes to build the new Cham–BDI line. However, on August 1, 2016, after proceedings began, the government adopted another decree allowing the respondent to acquire the servitudes necessary for the construction of that line. The respondent cannot, therefore, build the line within the servitudes it holds on the appellants’ land without additional expropriation.
The renunciation of a servitude must be clear and unequivocal. Here, the transmission line is used – perhaps for a purpose that is not permitted by the wording of the servitudes – but such conduct is not equivalent to a renunciation. Thus, the servitudes are not extinguished by prescription because the respondent allegedly committed acts contrary to such wording.
Moreover, a servitude is extinguished by non-use for 10 years (arts. 1191 and 1192 of the Civil Code of Québec (S.Q. 1991, c. 64)). Servitudes such as those in dispute are continuous servitudes due to the prohibition on construction. Thus, prescription begins to run from the day any act contrary to their exercise is done. Although the concept of “prescription” is difficult to reconcile with a servitude acquired by expropriation, the respondent is using the line for a purpose other than the one specified in the deed of servitude. In the circumstances, it should have regularized the situation. The remedy sought by the appellants is financial compensation for a use not contemplated in the deed. This issue, however, falls under the cross-application. Because the proceeding was split, the judge should not have dismissed that application before a hearing was held on the issue.
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