Court of Appeal of Quebec

Hilborn c. De Koven


Marcotte, Healy, Cournoyer

Appeal from a judgment of the Superior Court dismissing an application for declaratory judgment. Allowed in part.

The appellant acquired the servient land charged with the servitude in dispute in 1991. The respondent became the owner of the dominant land in 2014. The trial judge accepted from the evidence that the servitude conferred a right of way on the south portion of the servient land, in favour of the dominant land, in order to reach the waters of Lake Hugues. The appellant appeals solely in regard to the part of his proceeding concerning extinction of the servitude.

A party who seeks to have a servitude declared extinguished by non-use for 10 years under the fifth paragraph of article 1191 of the Civil Code of Québec (S.Q. 1991, c. 64), has the burden of proving that the servitude was never used during that period. Frequent or regular use is not required, and the owner of the servient land need not have knowledge of such use. To overcome prescription, it is sufficient for the party who holds the right of way to establish that he or she made useful use or use consistent with the description of the servitude at least once during that period.

In this case, the evidence shows that useful use was made of the servitude to get to the lake to fetch water for a pump and to go fishing. Moreover, even if the servitude must be interpreted in favour of the servient land, this interpretation cannot be unduly restrictive and must not deprive the servitude of any practical utility. The meaning that gives it effect must be favoured over one that gives it no effect. In light of the case law, brief activities such as drawing water for the pump, installing fishing traps and then leaving, or engaging in aquatic activities are not sufficiently lengthy to be considered akin to [translation] “remaining” and must be permitted. However, there is no question of extending the servitude into a right to occupy the lakeshore for a long period or to leave chairs or boats there after their use, which would be more in the nature of an accessory beach access right, nor is there any question of allowing a permanent dock to be installed or a car to be parked.

Furthermore, it would be risky to conclude that a mode of exercising the servitude that the parties did not deem useful to define, explicitly or implicitly, in the constituting act, was extinguished. Rather, prescription must be limited to only those specific or contemplated modes of exercising the servitude so as not to unduly restrict the rights of the owners of the dominant land and their successors, who may wish to arrange the servitude differently to favour certain means of transportation compared to others over time. Such an interpretation is based on the idea that a servitude whose use is not limited must be interpreted broadly, in particular because it may take into account the future needs of the dominant land, whereas the contrary approach would allow servitudes described without detail to be defined according to their use, which does not appear to be the prerogative of a real right.

There is therefore no basis for declaring the right of way by car partially extinguished, or for adding to the text of the servitude to specify that it is a right of way by foot only, because that would be akin to prescribing by extension the other means of transportation. However, the appellant is correct in submitting that the right of way excludes the notion of [translation] “remaining” and the other uses associated with the right to beach access.

Text of the decision: Http://

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