Executive Summary: Key legal and evidentiary issues

• Determination of the proper location of an historic right-of-way across two lots to access a third lot

• Interpretation and weight of the 1961 corporate resolution and 1974 private agreement concerning access rights

• Consideration of the evidentiary value of unsworn statements and past use of the disputed access point

• Evaluation of whether permission for use of a driveway can create enforceable access rights

• Examination of the applicants’ conduct in storing property improperly on the respondent’s lot and its impact on the dispute

• Assessment of whether the erection of a fence constituted actionable oppression under corporate law

Facts of the case

Paul and Roberta Bennett, shareholders in Cressview Lakes Corporation, sought a court declaration that they had a right-of-way over property owned by fellow shareholder Kimberly Chadwick to access their cottage on Lot 52. The dispute focused on whether the right-of-way followed an older access route established by a 1961 corporate resolution (marked in green on the site plan), beginning on Lot 45, or a more recent driveway route over Lot 46 (marked in yellow), which the applicants had used for some time.

Cressview Lakes is a non-profit corporation owning the subdivision lands, with shares granting members rights of possession to individual lots. The Bennetts’ shares were tied to Lots 45, 51, and 52, while Chadwick’s shares were tied to Lot 46.

Originally, the only access to Lot 52 was by water. In 1961, shareholders passed a resolution allowing the owner of Lot 52 to access the lot via a right-of-way over Lots 45 and 46. In 1974, a brief handwritten agreement confirmed the right-of-way across Lot 46 but did not specify any change in the access route. Over the years, the Bennetts and their predecessors began using a driveway over Lot 46 directly from Indian Trail, which was marked in yellow in court materials.

Relations between the parties soured when the Bennetts allegedly used part of Lot 46 for storage, against Chadwick’s objections. This led to Chadwick erecting a fence along her property line, blocking access to the yellow-marked driveway route.

Outcome of the case

The court dismissed the application. It held that the historic right-of-way established by the 1961 resolution and the 1974 agreement began on Lot 45 (the green-marked route), not on Lot 46. The Bennetts’ evidence of a long-standing right to use the driveway on Lot 46 was unsupported by admissible evidence. The judge found that Chadwick had initially given permission for the Bennetts to use her driveway, which was later revoked due to the Bennetts’ improper storage of property on Lot 46.

The court also rejected the Bennetts’ argument that the green-marked right-of-way was impassable, accepting evidence that a vehicle could traverse the route. Since the fence did not obstruct the original right-of-way, no removal order was warranted. The oppression claim was dismissed as without merit, and the court noted that the Bennetts were largely responsible for the conflict.

In conclusion, the right-of-way access remains via Lot 45, and the application was dismissed with costs to be determined.