Acts and Regulations

E-1 - Easements Act

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Repealed on 1 September 2011
CHAPTER E-1
Easements Act
Repealed: R.S.N.B. 2011, Schedule A
Claim to profit à prendre
1(1)No claim to any profit or benefit to be taken or enjoyed from or upon any land of the Crown or of a private person shall, where such profit or benefit has been actually taken or enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only that such profit or benefit did not exist from time immemorial but was first taken or enjoyed at a time prior to such period of thirty years; nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated.
1(2)Where such profit or benefit has been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.
R.S., c.67, s.1
Claim to general easement
2(1)No claim, which may be lawfully made at common law by custom, prescription or grant, to any way or other easement, or to any water course, or the use of any water to be enjoyed or derived upon, over, or from any land or water of the Crown or being the property of any person shall, when such way or other matter as herein last before mentioned has been actually enjoyed without interruption for the full period of twenty years, by the person claiming right thereto, be defeated or destroyed by showing only that such way or other matter was first enjoyed at a time prior to the period of twenty years; but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated.
2(2)Where such way or other matter as herein last before mentioned has been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
R.S., c.67, s.2
Action respecting easement
3Each of the periods of years mentioned in sections 1 and 2 shall be taken to be the period next before some suit or action wherein the claim or matter to which such period relates was or is brought into question, and no act or other matter shall be deemed an interruption within the meaning of those two sections, unless the same has been submitted to, or acquiesced in, for one year after the party interrupted has had notice thereof and of the person making or authorizing the same to be made.
R.S., c.67, s.3
Pleadings
4(1)In all actions and in all pleadings wherein the party claiming may now, by law, allege his right generally without averring the existence of such right from time immemorial, the general allegation shall still be deemed sufficient and, if the same is denied, all matters mentioned in sections 1, 2 and 3, that are applicable to the case, are admissible in evidence to sustain or rebut that allegation.
4(2)In all pleadings to actions of trespass, and in all other pleadings wherein it would have been necessary formerly to allege the right to have existed from time immemorial, it is sufficient to allege the enjoyment thereof as of right, by the occupiers of the tenement in respect whereof the same is claimed, for and during such of the periods mentioned in this Act as are applicable to the case, and without claiming in the name or right of the owner of the fee as was formerly done.
4(3)If the other party intends to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter hereinbefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.
R.S., c.67, s.4
Presumption in favour of claim
5In the several cases mentioned in and provided for by this Act of claims to any profit or benefit or to ways, water courses or other easements, no presumption shall be allowed or made in favor or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this Act as is applicable to the case and to the nature of the claim.
R.S., c.67, s.5
Limitation of actions
6The time
(a) during which any person otherwise capable of resisting a claim to any of the matters mentioned in the foregoing sections is mentally incompetent, a minor, or a tenant for life, or
(b) during which any action or suit has been pending, and has been diligently prosecuted until abated by the death of a party thereto,
shall be excluded in the computation of the periods in the sections mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible.
R.S., c.67, s.6; 1986, c.4, s.15
Effect of term of years on claim for easement or water
7Where land or water upon, over or from which any such way or other easement, water course or use of water has been enjoyed or derived, has been held under or by virtue of any term of life, or a term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as hereinbefore last mentioned during the continuance of such term, shall be excluded in the computation of the period of forty years, in case the claim is within three years next after the end or sooner determination of such term resisted by any person entitled to any reversion expectant on the determination thereof.
R.S., c.67, s.7
Easement respecting light or air
8Notwithstanding anything contained in sections 1 to 7, no person who has erected or may hereafter erect any building with windows overlooking the land of another, nor his heirs or assigns, shall acquire or be held to have acquired, by the mere use of light and air through such windows, any right so as to prevent the erection of any building, or other structures on such adjoining land; but nothing herein shall deprive any person of any rights or easement that he may have acquired before April 10, 1875, under the law as it existed previous thereto.
R.S., c.67, s.8
Easement respecting cable or wire
9No easement in respect of a wire or cable attached to land or a building or passing over land or a building shall be deemed to have been acquired or shall hereafter be acquired by prescription.
R.S., c.67, s.9
Easement respecting property of municipality or rural community
10Notwithstanding anything contained in this or in any other Act of the Legislature, no person shall be capable of acquiring or be deemed to have acquired by prescription a claim to any way or other easement or to any water course or to the use of any water to be enjoyed or derived upon, over or from any lakes or reservoirs, or land bordering upon such lakes, reservoirs, or dams or land through which the waste water or overflow from such dam flows, or other land connected with the storage or transmission of water, or required or held for the purpose of controlling riparian rights in respect of any stream of water flowing from any such lake or reservoir, or any land through which pipes for the conveyance of water are laid, nor shall any person be capable of acquiring a title to any such land under any Act respecting limitation of actions in respect to real property, when the land in respect of which the title or a way or other easement, is claimed, or the water course or use of water sought to be prescribed is a portion of, or connected with the water supply of a municipality or rural community, unless the adverse possession or the term of prescription was complete before the acquisition by the municipality or rural community of the land or water or right in or to the land or water.
R.S., c.67, s.10; 2005, c.7, s.21
N.B. This Act is consolidated to September 1, 2011.