Parcel No. 3 is described as follows: Commencing at the south-east angle of parcel No. 1, as shewn on the said plan of sub-division; thence north 26°, 42", west 3 chains 60 links to a stone monument; thence north 28°, 54", west 5 chains, 24 links to a point about midway on the bridge crossing the Serpentine, as shewn on the said plan; thence, &c., reserving therefrom the land occupied and used as a family vault, with twenty feet of land on all sides thereof, and a right of way from the Kingston Road thereto." Parcel No. 4 is described as follows, so far as material: The description begins at the north-east angle; the second course from that point south 26°, 58′′, east 9 chains, 76 links to a stone monument; thence in a southerly direction, following the centre of the Serpentine to a point about the centre of the bridge crossing the Serpentine. The said point is also the north-west angle of parcel No. 3, as shewn on the said plan of subdivision. Parcel No. 5 is in no way interested in the right of way. Parcel No. 6, which is immediately to the north of parcels 2 and 4, and through which the lane or way passes after describing the boundaries of the parcel concluded: 66 Reserving therefrom a right of way 30 links wide as shewn on said plan of said subdivision for the use and benefit of the owner of the lands situated on the north side of the Grand Trunk Railway, and immediately north of the said parcel No. 6." John Small who, after the subdivision, acquired parcel No. 3 laid out the part of it upon the Kingston road, and on the 7th of January, 1882, he conveyed lots 16 to 23, both inclusive, to the defendant "as laid out on Berkeley plan of lots, which plan is filed in the registry office for the County of York as plan No. 496, together with the privilege of the water's use fronting on said lots to the centre of the Serpentine, and also with the use of the ten feet reserved on the said plan at the west end of the said lots and lot 24 to the lane." And by a subsequent deed of the 29th of January, 1883, John Small conveyed to the defendant "lot No. 37 as laid out on Berkeley plan of the subdivision of parts of lots Nos. 6 and 7, in the 1st concession from the bay, in the Township of York, which plan is registered in the registry office for the County of York, as plan No. 504, together with all the title and interest which the party of the first part has or may have in the right of way 30 links in width running through and between parcels Nos. 1, 2, 3, 4, and 6, as shewn on plan of the subdivision of the late William Innes Small, filed in the registry office of the County of York as plan No. 282, reserving, however, out of the land hereby conveyed a strip two inches in width across the north end thereof. The defendant on several occasions broke down the Plaintiffs fence adjoining the right of way in the pleadings mentioned in assertion of his alleged right to use the way. The learned Judge delivered the following judgment: OSLER, J.-This action was tried before me at the Toronto Summer Sittings, 1883. The facts are shortly as follows. The late Charles Coxwell Small died in the year 1862, seized in fee of a farm known as Berkeley Farm, of which he had been the owner, and in the actual use and occupation for a period of forty years, or thereabouts. Leading through this farm, in an irregular direction, northerly from the Kingston Road he had made a way or lane, defined by fences or buildings throughout the greater part of its course and used for the general purposes, and the better enjoyment of the farm. On the east side of the lane, and some four or five chains from the Kingston Road, stables and other farm buildings were erected immediately adjoining the lane, and forming a part of its easterly fence, and access and entrance to which was obtained from the lane. By his will, Mr. Small devised his farm to certain trustees who held it, in the events which happened, in trust to divide it equally between six surviving children, share and share alike. In 1867 the beneficiaries determined to make a partition. of the farm, and a plan of the intended sub-division was made, dated 24th June, 1867, and registered as No. 282. There is no evidence of any verbal or written contract or agreement relative to the partition other than the plan and the conveyances by which it was carried out. On the plan the farm is divided into six parcels of unequal dimensions described as parcel No. 1, parcel No. 2, etc., and the lane or way referred to is delineated thereon and described as "right of way thirty links wide." It passes through parcel No. 1 immediately adjoining part of the westerly side or limit of parcel No. 3, and through parcel No. 2 into parcel No. 6, adjoining in its course the remaining part of the west side of No. 3, and also part of the west limit of parcel No. 4. Contemporaneous conveyances of the several parcels, bearing date the 26th September, 1867, and expressed to be made in pursuance of the Act to facilitate the conveyance of real property were then made by the trustees to the respective parties, the lands being described by reference to the plan as parcel 1, parcel 2, &c., and also by metes and bounds according to the courses, distances, and monuments marked thereon, the latter description including in the case of parcels 1, 2, and 6, the land occupied by the lane, with the following reservations respectively: As to parcel No. 1, which was conveyed to Charles C. Small," Reserving thereupon the right of way 30 links wide from the Kingston road along the east limit (i. e., of parcel 1) by the lane leading to the bridge crossing the Serpentine as shewn on the registered plan." As to parcel 2 conveyed to John Small, and now the property of the plaintiff "reserving thereupon a right of way, thirty links wide as shewn on the said plan of said subdivision through said parcel No. 2, for the use and benefit of parcels 4 and 6." And as to parcel No. 6, which was conveyed to Mrs. Ripley, "reserving thereupon a right of way as shewn on the plan for the use and benefit of the owners of land situate on the north side of the Grand Trunk Railway, and immediately north of parcel No. 6." The lands referred to in this last reservation, formerly constituting part of Berkeley Farm, had been sold, it was said, during the testator's life time. There was no evidence as to the terms or extent of the right of way, if any, granted to the purchasers, but they had always used the lane as their necessary access to the Kingston Road. Parcel No. 4 was conveyed to Geo. B. Small, and parcel No. 3, of which the defendant's land forms part, to Mrs. Louisa Goldsmith. Neither of these deeds in terms refers to the right of way or lane. The barn, stable, and farm buildings already mentioned were on parcel No. 3, but they have long since disappeared and have never been replaced. Parcels 1 and 3 abut, for their whole width, 6 chains 20 links in one case and 34 chains 92 links in the other upon the Kingston road. It was not stated whether the deeds of parcels 1, 2, and 6, were executed by the parties. Assuming that they were, the reservations would operate as a newly created easement by the grantees to the grantors: Goddard on Easements, 2nd ed., p 100; Wilson v. Gilmer, 46 U. C. R. 545, 551. Parcel No. 3 was subsequently acquired by John Small, who subdivided the west part of it into a range of twentyfour building lots fronting on the Kingston road and with the Serpentine in the rear as shewn upon a plan, dated 17th November, 1881, and registered as No. 496. This plan also shews that a strip of land ten feet in width is reserved between the westerly end or rear of lots 21, 22, 23 and 24, and the extreme west side or limit of parcel No. 3, and therefore immediately adjoining or contiguous to the way shewn on plan 282 from the Kingston road to the Serpentine, the latter being also shewn as a road on plan 496. It was said that this reservation had been made with the view of widening the lane if the owners of parcels Nos. 1 and 2 would devote a similar strip on the other side for that purpose. On the 7th January, 1882, Small by a deed expressed to be made in pursuance of the Act respecting short forms of conveyances, conveyed to the defendant lots 16 to 23 inclusive on plan 496, "with the use of the ten feet reserved on the plan at the west end of said lots and lot 24 to the lane." The defendant afterwards, on several occasions, broke down the plaintiff's fence between the easterly side of parcel No. 2 and the ten feet reserve, in assertion of a right to use the way shewn on plan 282, and this action was brought to recover damages for the alleged trespasses, and to restrain the commission of further acts of a like nature. The contention raised by the pleadings that this lane or way had become a public highway was not very forcibly urged at the trial. On the evidence I find, as a fact, that it is not a public highway. Nor can the defendant maintain any right to use it as being a way of necessity, for his land abuts upon a public highway, the Kingston Road, from which he has free access to every part of it. |