Hamilton, Moore, Cournoyer

Appeals from a judgment of the Superior Court granting in part a negatory action of servitude and dismissing a cross-application. Dismissed.

The parties own neighbouring lots. Pursuant to a deed of sale, a pedestrian and vehicular right of way was created on the respondent’s lot in favour of the appellant’s lot. The trial judge declared that the pedestrian right of way was not prescribed because the appellant had walked on the site of the servitude in 2016. After accepting that the respondent built a gate in 2008, he declared that the vehicular right of way was prescribed because the appellant admitted that she had used the vehicular servitude for the last time in 2007. The appellant argues that the installation of the gate interrupted prescription. The respondent, however, claims that the judge erred in fact in finding that the appellant walked on the site of the servitude in the 10 years preceding the filing of the application, when the land was impassable.

There is insufficient evidence to find that the judge made a palpable error on the 2 disputed questions of fact, that is, the installation of the gate in 2008 and the appellant’s passage on foot in 2016. As to whether the installation of the gate interrupted prescription, art. 1194 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) states that the impossibility of exercising the servitude is no longer an immediate cause of extinction, whatever the reason. Non-use for 10 years is the only relevant cause of extinction when it is impossible to exercise the servitude (para. 5 of art. 1191 C.C.Q.). If the owner of the servient land makes it impossible to exercise the servitude, the owner of the dominant land has 10 years from that date to assert his or her right, subject to proving one of the recognized causes of the interruption or suspension of prescription, such as the impossibility to act (art.  2904 C.C.Q.), which excludes, however, the mere impossibility of exercising the servitude because of a gate or other unlawful obstacle if it was otherwise possible to take part in judicial proceedings to put an end to the obstacle causing its non-use.

If the owner of the dominant land tolerates an obstruction and fails to travel over the site of the servitude for a decade, the turpitude of the owner of the servient land who created the obstruction loses its importance and the negligence of the owner of the dominant land becomes decisive. The purpose, or at least the effect, of prescription is to sanction the negligence of those who, knowing that their rights have been infringed, fail to take the appropriate action to correct the situation.

In this case, even though the respondent prevented the appellant from using the vehicular servitude by installing a gate in 2008, the fact remains that the appellant had not used the vehicular servitude since 2007 and has not proved the occurrence or performance, in the ensuing 10 years of any fact or action that could have suspended or interrupted prescription. Accordingly, her vehicular right of way was extinguished in 2017 due to non-use since 2007.

Text of the decision: http://citoyens.soquij.qc.ca