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Acts and Regulations

2011, c.143 - Easements Act

Full text

2011, c.143

Easements Act

Deposited May 13, 2011

Claim to profit or benefit

1(1)No claim to any profit or benefit to be taken or enjoyed from or on any land of the Crown or of a private person shall, if the profit or benefit has been actually taken or enjoyed by any person claiming right to it without interruption for the full period of 30 years, be defeated or destroyed by showing only that the profit or benefit did not exist from time immemorial but was first taken or enjoyed at a time before the period of 30 years; nevertheless the claim may be defeated in any other way by which it is now liable to be defeated.

1(2)If the profit or benefit has been so taken and enjoyed for the full period of 60 years, the right to it shall be deemed absolute and indefeasible, unless it appears that it was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

R.S.1973, c.E-1, 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 watercourse, or the use of any water to be enjoyed or derived on, over, or from any land or water of the Crown or being the property of any person shall, if the way or other matter has been actually enjoyed without interruption for the full period of 20 years, by the person claiming right to it, be defeated or destroyed by showing only that the way or other matter was first enjoyed at a time before the period of 20 years; nevertheless, the claim may be defeated in any other way by which it is now liable to be defeated.

2(2)If the way or other matter has been so enjoyed for the full period of 40 years, the right to it shall be deemed absolute and indefeasible, unless it appears that it was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

R.S.1973, c.E-1, 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 a suit or action in which 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 it has been submitted to, or acquiesced in, for one year after the party interrupted has had notice of it and of the person making or authorizing it to be made.

R.S.1973, c.E-1, s.3

Pleadings

4(1)In all actions and in all pleadings in which the party claiming may now, by law, allege a right generally without averring the existence of the right from time immemorial, the general allegation shall still be deemed sufficient and, if it 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 in which it would have been necessary formerly to allege the right to have existed from time immemorial, it is sufficient to allege the enjoyment of it as of right, by the occupiers of the tenement in respect of which it 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 previously mentioned in this Act, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, it shall be specially alleged and set out in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of the allegation.

R.S.1973, c.E-1, 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, watercourses or other easements, no presumption shall be allowed or made in favour or support of any claim on 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.1973, c.E-1, s.5

Limitation of actions

6Except only in cases where the right or claim is declared by this Act to be absolute and indefeasible, the following shall be excluded in the computation of the periods in the sections mentioned:

(a) the time during which any person otherwise capable of resisting a claim to any of the matters mentioned in the previous sections is mentally incompetent, a minor, or a tenant for life; and

(b) the time during which any action or suit has been pending, and has been diligently prosecuted until abated by the death of a party to it.

R.S.1973, c.E-1, s.6; 1986, c.4, s.15

Effect of term of years on claim for easement or water

7If land or water on, over or from which any way or other easement, watercourse 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 of it, the time of the enjoyment of the way or other matter during the continuance of the term shall be excluded in the computation of the period of 40 years, in case the claim is within three years next after the end or sooner determination of the term resisted by any person entitled to any reversion expectant on the determination of it.

R.S.1973, c.E-1, s.7

Easement respecting light or air

8Despite 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 that person’s heirs or assigns, shall acquire or be held to have acquired, by the mere use of light and air through the windows, any right so as to prevent the erection of any building or other structures on the adjoining land; but nothing in this Act shall deprive any person of any rights or easement that the person may have acquired before April 10, 1875, under the law as it existed before then.

R.S.1973, c.E-1, 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.1973, c.E-1, s.9

Easement respecting property of a local government

2017, c.20, s.52

10Despite 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 watercourse or to the use of any water to be enjoyed or derived on, over or from any lakes or reservoirs, or land bordering on lakes, reservoirs, or dams or land through which the wastewater or overflow from a 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 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 watercourse or use of water sought to be prescribed is a portion of, or connected with the water supply of a local government, unless the adverse possession or the term of prescription was complete before the acquisition by the local government of the land or water or right in or to the land or water.

R.S.1973, c.E-1, s.10; 2005, c.7, s.21; 2017, c.20, s.52

N.B. This Act was proclaimed and came into force September 1, 2011.

N.B. This Act is consolidated to January 1, 2018.