What is the test for a claim against a servient owner of a property where the use of the property is not permitted?
Nova Scotia, Canada
The following excerpt is from Miller v. Hartlen, 2014 NSSC 296 (CanLII):
The claimant must also establish that the use was made without violence, secrecy or evasion, and without consent or permission of the servient owner: Mason v. Partridge, supra, at paras.19-22.
In view of the serious consequences for the servient property owner, a prescriptive easement will be found only where there is clear evidence of both continuous use and acquiescence in such use by the owner of the servient property: Henderson v. Volk, supra, at para.21. Did the applicant exercise continuous, uninterrupted, open and peaceful use of the Barren Road over the Hartlen lands for a period of 20 years?
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