Executive Summary: Key Legal and Evidentiary Issues

• Scope and interpretation of the deeded 66-foot right of way over Eagle View Drive, including whether it allows access to the dominant tenement at any point along the roadway.
• Whether the large boulders placed by the servient owner on the right of way constituted a substantial and unreasonable interference with the Stutzingers’ vehicular and pedestrian access.
• Extent of the servient owner’s right to maintain and “improve” the private road (grading, snow-clearing, alleged retaining wall) versus the dominant owners’ easement rights.
• Relevance of restrictive covenants in the deed and the allegation that the Applicants overburdened the easement by placing structures (pond, garden beds, flagpole, Sea-Can) within the right of way.
• Use of affidavit evidence without cross-examination and the Court’s approach to factual conflicts when they are not determinative of the legal issues.
• Availability of remedies including declaratory relief, a mandatory order to remove obstructions, and modest general damages in the absence of quantified financial loss.

Facts of the case

Juergen and Olena Stutzinger own 47 Eagle View Drive (Lot 12-27) in Richmond County, Nova Scotia. Their property is accessed over a private roadway known as Eagle View Drive (EVD), which is owned by the respondent, Jens Blecker, together with his partner, Andreas Fruhmark. In July 2012, Blecker conveyed Lot 12-27 to the Stutzingers by way of a deed that also granted them a 66-foot wide right of way over EVD, described as Parcel EVD-1. The easement is expressed in two key clauses. First, it grants “a 66 foot Right of Way, in common with others having a similar right, over Eagle View Drive being Parcel EVD-1 on said plan.” Second, it provides “a right of Easement… over the said 66 foot Right of Way… for the placement of utilities… so long as the placement of the utilities does not interfere with the rights of vehicular and pedestrian travel over the said 6 foot Right of Way (Parcel EVD-1).” The wording is broad as to vehicular and pedestrian travel and does not restrict where along the frontage of their lot the Stutzingers may access their property. The deed also attaches restrictive covenants in Schedule B. Among other things, these covenants prohibit excavation or removal of soil, sand or gravel from the property without the grantor’s written consent, and require that the property be kept clean and free from unsightly storage or waste, allowing only clean earth, rocks, gravel and similar materials for grading or landscaping. These covenants become relevant because the respondent later alleges that the Applicants’ use of the land and the roadway has breached them and overburdened the easement.

After purchasing the lot, the relationship between the parties was initially cooperative. In or about 2016, shortly after moving to Canada from Germany, the Stutzingers placed a metal shipping container (a Sea-Can) near EVD, with Blecker’s knowledge. According to the Applicants, Blecker even prepared a base for the container, and there was no contemporaneous objection. Over time, tensions developed. In 2019, Mr. Stutzinger built a garage which Blecker believed encroached into the right of way; a subsequent survey convinced the Applicants that the garage was entirely on their land. In 2020, the Stutzingers dug a “fire pond” at the northwest corner of their lot. With survey markers absent at the time, part of the pond extended into Parcel EVD-1. Blecker objected, calling on them to stop and to fill it in, asserting that both the pond and associated landscaping restricted his ability to use and maintain EVD, particularly for snow removal. The Applicants partially filled the pond and apologized, but the relationship had clearly deteriorated. Around the same time, the Applicants placed garden beds, boulders surrounding the pond, and a flagpole in the vicinity, some of which Blecker claims are within the boundaries of EVD.

In late 2023 or early 2024, Blecker demanded that the Sea-Can be moved off the right of way. The Applicants complied and, by April or May 2024, repositioned the Sea-Can fully onto their own lot, still close to EVD at the northwest corner. They planned to build a car port covering the Sea-Can, to be accessed directly from EVD, thereby using the right of way to reach that part of their property by vehicle. In mid-July 2024, the Applicants travelled to Germany for a two-week vacation. On returning, they discovered that large boulders had been placed along a short stretch of EVD immediately in front of the Sea-Can at the edge of their lot. Blecker later acknowledged that he placed these boulders as part of grading and “improvement” works on EVD. The boulders appear only along the frontage of the Stutzinger property where the Sea-Can sits; there are no similar boulder placements along other parts of EVD.

The Applicants say that these boulders obstruct their ability to use the right of way to access the northwest part of their property, particularly the Sea-Can, by vehicle. They maintain that, before the boulders were installed, they were able to drive from EVD directly up to that corner, and that this access was essential to their planned car port and to moving heavy items in and out of the container. They also state that in early August 2024 they hired an excavator to remove the boulders but were stopped when Blecker objected and called the RCMP. The Applicants insist they incurred costs for the excavator, although no precise figure is provided in the evidence.

On two occasions—August 9 and September 27, 2024—counsel for the Applicants wrote to Blecker, complaining that the boulders obstructed the deeded right of way and seeking their removal. According to the Applicants, these letters went unanswered or were refused in substance. In response, they brought an Application in Chambers in the Supreme Court of Nova Scotia, seeking declaratory and injunctive relief, removal of the boulders, damages for unlawful interference with the right of way, and costs.

The respondent’s position and allegations

In his Notice of Contest and affidavit evidence, Blecker does not dispute that the deed grants the Applicants a right of way over Parcel EVD-1, nor that he owns the roadway and several surrounding lots. His defence is structured around three main themes: the scope of the easement, the impact of the Applicants’ own conduct, and his asserted need to maintain and improve EVD. First, on the scope of the easement, he contends that the Applicants have used the right of way beyond what was contemplated in the grant. He argues that the deed does not give them carte blanche to use every part of EVD as a turning or access point, and that the practical interpretation should confine vehicular access to existing driveway points rather than allow new access points to be opened along the frontage at will.

Second, he alleges that the Applicants have substantially overburdened and misused EVD. Specifically, he claims that without consent they constructed garden beds, installed boulders, excavated an artificial pond, placed a flagpole, stored materials and erected structures, and operated heavy equipment such as excavators within the bounds of Parcel EVD-1. In his view, these actions constitute impermissible uses of a right of way that was intended solely for vehicular and pedestrian passage and utilities, and they violate the restrictive covenants in Schedule B of the deed. He also describes the road as narrow and says the Applicants’ “obstructions” make snow clearing “extremely challenging,” further justifying the need to control and rationalize use of the right of way.

Third, Blecker says that in the summer of 2024 he undertook grading work to improve EVD’s gradient for winter snow removal and to prevent drainage problems on adjacent lands. He claims to have spent about $4,000 on this work. As part of these works, he placed the boulders along the edge of EVD by the Stutzinger lot, characterizing them as a retaining structure needed for the stability, safety and functionality of the road. He denies that the boulders substantially obstruct the right of way or meaningfully impair the Applicants’ access, but in any event argues that any interference is minor and not actionable. He further alleges that the Applicants have engaged in threatening behaviour aimed at deterring him from exercising what he views as his legitimate property rights. Notably, Blecker did not bring a counterclaim. His allegations about the pond, garden beds, Sea-Can, and flagpole are offered as context and as a form of justification for his actions rather than as an independent claim for relief.

Evidence before the court

The case proceeded on affidavit evidence only. The Applicants filed four affidavits: two from Juergen Stutzinger (original and rebuttal), one from Olena Stutzinger, and a supplemental affidavit from Juergen. The Respondent produced affidavits from a land surveyor, John J. Delorey, as well as two affidavits from himself. None of the deponents were cross-examined. Justice Ann E. Smith therefore assessed the evidence without live testimony. She observed that, although there were differing versions of some background facts, none of those conflicts were central to the narrow legal issues before the Court. As a result, the decision does not turn on classic credibility findings but on the legal construction of the deed, evaluation of documentary and photographic evidence, and a practical assessment of interference with the easement.

Photographs—particularly overhead images—played an important role. These images showed the alignment of EVD, the position of the Applicants’ lot, the Sea-Can, the pond, and the boulders. From this evidence, the Court drew the conclusion that the boulders are localized to the stretch of EVD abutting the northwest corner of the Applicants’ property, and that there is ample space elsewhere along EVD for snow storage and grading activities, undermining the claim that the specific boulder line at the Stutzinger frontage was necessary for road maintenance. The Court accepted that there had been snow clearing along EVD even after the pond, garden beds and flagpole were installed in 2020, which further weakened the argument that the Applicants’ landscaping had rendered routine maintenance impracticable.

Legal framework and key issues

The central legal question was whether the boulders placed by Blecker along the edge of EVD constituted a substantial interference with the deeded right of way. This required the Court to interpret the scope of the easement and to apply established principles governing dominant and servient tenements. Under Nova Scotia law, an express grant of a right of way in a deed is interpreted using ordinary contractual principles. The Court looks to the plain and ordinary meaning of the words, read in light of the surrounding circumstances at the time of the grant, including facts known—or reasonably knowable—to both parties. Where the language is ambiguous, courts construe grants in favour of the grantee (the dominant owner).

The deed here plainly grants a 66-foot right of way over the entirety of Parcel EVD-1, in common with others similarly entitled, for vehicular and pedestrian travel. It also grants a broad easement for utilities, qualified only by a requirement not to interfere with vehicular and pedestrian passage. There is no term limiting the number or location of driveway entrances to the dominant land, nor is there any clause reserving to the servient owner a power to dictate where along the frontage access can occur. Against this textual backdrop, the Court considered the circumstances at the time of the 2012 grant: the subdivision was under development, pre-existing driveways were not fixed, and the parties would reasonably have expected that future lot owners might create or relocate access points as their use of the land evolved.

Against that framework, the Respondent’s argument that the Applicants were confined to their existing driveway and had no right to form or use another access point from EVD into the northwest area of their lot was found inconsistent with both the language of the grant and the surrounding circumstances. The Court preferred a broader reading of the easement, aligning with case law that recognizes the dominant owner’s right to make full, practical use of a right of way, subject only to not overburdening the servient estate or changing the character of the easement.

The second key issue was the nature and degree of interference required for actionable disturbance of a right of way. The Court adopted the long-standing principle that the servient owner may use and enjoy their land, including undertaking reasonable maintenance and improvements, but may not unduly restrict the dominant owner’s rights. An act that substantially interferes with the exercise of a right of way amounts to a legal nuisance. The test is whether the easement can still be practically and substantially exercised as conveniently as before the interference. While minor or temporary obstructions may be tolerable, the erection of a permanent structure on land subject to a right of way is very likely to amount to substantial interference, because it inherently narrows or blocks the easement in a durable way.

The Court noted that a dominant owner does not have an absolute entitlement to a right of way kept perfectly clear in every square foot of its width. Case law indicates that what is required is that the right of way remain practically usable. However, permanent obstructions that cut off access at particular points without justification are apt to cross the line. The judge examined authorities from Nova Scotia and other jurisdictions, including decisions in which trees, fences, concrete blocks, or gates had been found to interfere with easements when they impeded practical access. By contrast, two older English and Ontario cases cited by the Respondent (Lewis v. Wakeling and Pettey v. Parsons) involved situations where servient owners erected fences with gates, leaving reasonable access routes intact; those were found distinguishable from the present situation, where the road had never been gated and the boulders did not function as a controlled access point but as a permanent barrier at a specific location.

Application of the law to the facts

Justice Smith accepted the Applicants’ evidence that the boulders prevented them from bringing a vehicle from EVD onto the northwest portion of their property, particularly up to the Sea-Can, and that they would now have to build a new internal driveway extension simply to regain equivalent access. She also accepted that the Applicants had previously been able to use the right of way at that point for vehicular access and that their intended use—constructing a car port and using the Sea-Can for storage—was consistent with normal residential enjoyment of the property. There was no contractual or legal basis shown for the Respondent’s attempt to dictate that access from EVD must be limited to one existing driveway.

The Court rejected Blecker’s justification that the boulders were necessary for snow clearing or constituted an essential retaining structure. No expert evidence supported the claim of a structural need, and the photographic evidence suggested that there were substantial other areas along EVD suitable for snow placement and that snow removal had in fact occurred after the Applicants’ various installations in 2020. Moreover, the selective placement of boulders only in front of the Stutzingers’ intended access point, and not elsewhere along EVD, undermined the suggestion that this was a general, neutral road-safety measure. On that basis, Justice Smith found the boulders to be an arbitrary and targeted obstruction rather than a proportionate act of maintenance.

The Respondent’s allegations concerning the Applicants’ pond, garden beds, flagpole, and earlier placement of the Sea-Can were not determinative of the issues before the Court. There was no counterclaim, and the Application did not require the Court to decide whether the Applicants’ works within EVD breached the restrictive covenants or overburdened the easement. While these matters might form the basis of separate proceedings or enforcement efforts, they could not, in this action, serve as a defence to the Applicants’ complaint that their express right of way was being obstructed by the Respondent’s own unilateral actions. The Court expressly declined to rule on any future attempts by the Respondent to enforce restrictive covenants or other property rights concerning the northwest corner of the lot.

On the totality of the evidence, the Court held that the boulders constituted an unreasonable and substantial interference with the Applicants’ deeded right of way. This interference affected not just convenience but the core functionality of the easement, preventing vehicular access to part of the dominant land from the roadway. Accordingly, the Applicants had met their burden of proof.

Remedies and outcome

Having found that the Respondent unlawfully interfered with the right of way, the Court granted several forms of relief. First, it issued a declaration that the Applicants are entitled to use Eagle View Drive as a right of way for access to and egress from their property. This confirms their legal right to utilize the 66-foot right of way in the manner contemplated by the deed, including choosing the point along their frontage at which they enter or exit, so long as they do not exceed the scope of the easement.

Second, the Court made a mandatory order requiring Blecker and his partner to remove all of the boulders from the right of way at their own expense. They are directed to carry out any work needed to restore the landscape where the boulders had been placed to its prior condition, with a deadline of December 31, 2025. This goes beyond simply ordering removal; it obliges the servient owners to remediate the site so that the right of way is effectively returned to its former state. The decision characterizes the placement of the boulders as unlawful interference, giving the Applicants not just declaratory but practical relief.

Third, the Court awarded the Applicants general damages of $1,000. This sum is for the inconvenience and loss of enjoyment resulting from the period during which the boulders obstructed their use of the right of way. The amount is modest, reflecting the lack of detailed evidence of specific financial loss—such as receipts for the excavator that was prevented from removing the boulders or quantified construction delays—but it nonetheless recognizes that their rights were infringed and that they suffered inconvenience and frustration.

Finally, Justice Smith held that the Applicants are entitled to their costs of the Application. However, the decision does not fix a dollar amount for costs. Instead, it invites the parties to attempt to agree on costs and, failing agreement, permits short written submissions within thirty days of receipt of the decision. Thus, while the Applicants have a clear entitlement to costs, the precise monetary figure for those costs is not determined within this judgment. When combined with the order that the Respondents must bear all expenses of removing the boulders and restoring the land—an amount likewise not quantified in the reasons—the total financial burden on the Respondents will only be fully known once those costs are incurred or assessed.

In summary, the successful parties are the Applicants, Juergen and Olena Stutzinger. They obtained declaratory relief confirming their right of way, a mandatory order compelling the removal of the obstructing boulders and restoration of the road edge, general damages of $1,000, and an entitlement to costs. The only quantified monetary award stated in the decision is the $1,000 in general damages. The amounts for costs and for the remedial work are not specified in the judgment and thus the total monetary sum ordered in their favour cannot be precisely determined from this decision alone.