September 28, 2018
Thibault, St-Pierre, Rancourt
Appeal from a judgment of the Superior Court granting in part a cross-application, declaring the partial nullity of an act of servitude, and awarding $9,000 in compensation. Dismissed.
In 2007, the appellants purchased an immoveable on which two servitudes existed in favour of the respondent, authorizing the installation of telecommunications devices in cabinets. In 2008, negotiations took place for the purchase of a new servitude to install a new cabinet. The servitude contract gave the respondent the right to install telecommunication lines including, among other things, [translation] “a device mounted in one or more cabinets”. The third cabinet was installed in 2009. A fourth cabinet was installed in 2012, further to injunction proceedings. The appellants sought the dismissal of the respondent’s application for permanent injunction, a declaration of nullity of the act of servitude, the removal of the two cabinets installed pursuant to the 2008 act of servitude, and a condemnation ordering the respondent to pay them $30,000.
The trial judge ruled that the act of servitude was null in part and struck out the expression [translation] “or more”. He found that the restitution of prestations should be made by equivalence because the removal of the fourth cabinet would cause serious inconvenience for the respondent and its clients. He also found that the appellants suffered no injury as a result of such restitution. The respondent was ordered to pay $9,000 in compensation.
The judge rightly found that the error in consent did not result in the total nullity of the act of servitude. He found that, in a way, the contract was not an indivisible whole and could therefore survive the partial invalidation of one of its clauses by creating a servitude for the installation of only one cabinet in consideration for an indemnity. Thus, he restored the common intention of the parties and the true object of their informed consent. The judge then decided that restitution of the prestations should be made under para. 1 of art. 1699 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.). By relying on art. 1700 C.C.Q. to determine that the restitution of the prestations would be made by equivalence rather than in kind, he properly directed himself in law. The presence of the fourth cabinet on the appellants’ property does not constitute unlawful encroachment, and the legal solution chosen by the judge is one of those authorized by art. 1700 C.C.Q. In reality, the situation resulting from the judgment weighs in favour of recognizing a superficie created by the judgment that recognized the respondent’s right to keep the fourth cabinet in place in consideration for $9,000. Finally, the appellants have failed to demonstrate any error in the compensation awarded.
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