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REAL ESTATE 84: Defendants had a prescriptive easement to moor boats.

This case arises from a dispute over defendants’ rights to use a portion of plaintiffs’ riparian property.

HG originally owned all the property underlying the dispute in this case. In the mid-1960s, HG partitioned the property into three parcels. HG retained one of the parcels (the servient estate), which is the only parcel that abuts Higgins Lake. HG sold the other two parcels to in 1965. HG granted a 20-foot-wide easement across his parcel for access to Higgins Lake.


A dock that extended from the easement was thereafter installed, and it was utilized by the new owners as well as their family and guests. The easement dock was stored on the easement during the months that it was not in Higgins Lake. The new owners moored boats and installed boat hoists. They also used the easement for other recreational activities, such as sunbathing and picnicking. There is no evidence that HG or his son gave the new owners permission to engage in these activities.

Eventually, the servient estate was purchased on land contract by R.  R informed defendants that the language of the easement only allowed access to Higgins Lake and that no other uses of the easement or the area extending from the easement would be permitted. Defendants did not remove the easement dock.


R filed suit, alleging that defendants had impermissibly used the easement for purposes beyond mere lake access. R requested declaratory relief and damages in relation to claims for trespass and nuisance.

Defendants argued that the grant of access to Higgins Lake included a full range of riparian or littoral rights, along with use of the easement’s beach area for recreational activities. In the alternative, defendants argued that they had acquired prescriptive rights to continue the challenged uses.

Trial Court / Easement by Prescription

The trial court held that defendants had a prescriptive easement for the seasonal installation and removal of the easement dock, to moor boats, and to engage in certain recreational activities on the easement. As a result, the trial court entered a judgment of no cause of action on plaintiffs’ claims for nuisance and trespass.

An easement by prescription is based upon the legal fiction of a lost grant, and results from action or inaction leading to a presumption that the true owner of the land, by his acquiescence, has granted the interest adversely held. An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years. Thus, a prescriptive easement is no more than an unopposed, continuous trespass on another’s property for 15 years.

Assistance with Real Estate Litigation

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PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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