Unloading in the evening

Unloading in the evening

Wednesday, February 26, 2014

Is a 1960 reservation of the right to take hay still enforceable?

The Nova Scotia Supreme Court has recently heard the case of a farmer looking to exercise a right to take hay that was first created in 1960.  The Court explained:

This application involves the interpretation of a reservation of a hay/crop
right in favour of GC, his heirs and assigns in a 1960 deed from
GC to the respondents predecessor in title ID. An area of some 2.7 acres of GCs 150-acre farm lot in Antigonish County, was conveyed, along with a 100-year old farm house and barn (or its foundation), collectively the S lot. After describing the dimensions of the 2.7-acre lot, which runs through GCs farm lot, the deed then provides the following:
RESERVING however to the said GC, his heirs and assigns the right and privilege to enter upon the said land from time to time for the purpose of removing hay or other crops or improving the land, ...

GC's nephew and successor in title has now come to the Court seeking an order confirming and declaring his right to enter the 2.7 acre parcel "for the purpose of removing hay or other crops or improving the land".

The Court determined that the right reserved to GC when he sold the 2.7 acre parcel was a "profit a prendre" - a right to take the produce or profit from the land.  The Court ruled that GC had reserved to himself and to his assigns (his successors in title) the right to remove hay form a portion of the 2.7 acres and that this reservation was not "repugnant" to the grant of title to the 2.7 acres (i.e. the sale of the land in 1960).

The responding parties (the current owners of the 2.7 acres) argued that the profit a prendre was extinguished years ago "because the purpose for which the condition was created has now expired".  The Court disagreed with this position.  It found that the owners of the GC lands have continued to take hay from the 2.7 acres since 1960 (whether for their own use or by lease to another farmer) and that:

If the profit appurtenant has been extinguished by the permanent alteration of the GC tenement, since it is no longer a cattle farm, then removal of the hay is still held as a right in gross, unaffected by such circumstances. It is a right exercisable by GC, the owner of it independently of his ownership of any land. The reservation is not rendered void or the profit extinguished due to alteration to the GC lot. 

However, the Court agreed with the respondents that the right to take hay on the whole 2.7 acres unreasonably limited their potential use of the property.  The Court made an order allowing the respondents to use the land within a certain tree line, which the Court determined "would not be an actionable infringement of the reservation rights".  The Court did grant the application and declared that the GC land owners hold a profit a prendre.

Read the decision at: Chisholm v. Snyder.