A land dispute between neighbours often involves a right of way issue. A typical case is when Neighbour A has been traversing Neighbour B’s land to reach his own land over a number of years. The dispute arises when Neighbour B stops Neighbour A from crossing over the land. Since Neighbour A’s right of way, or easement, is not registered on title to Neighbour B’s land, like a Hydro easement, the right of way must be established by a lawsuit to make it legal.
Neighbour A must prove that the right of way has been used by him and/or previous owners of his land continuously for a period of 20 years. The right of way must also have been used in a manner that is visible to Neighbour B and used by peaceable means, that is, without threat to Neighbour B. Once established, Neighbour A obtains legal title to the right of way by adverse possession or prescription.
To defend the lawsuit, Neighbour B may argue that he objected to the use of the right of way by periodically blocking it with a chain or vehicle during the 20 year period. He may also argue that the right of way is not reasonably necessary for Neighbour A’s enjoyment of his land because Neighbour A can reach his land by another convenient route. Courts generally proceed with caution before granting legal title to Neighbour A because the right of way is obtained without any financial compensation to Neighbour B.