What are the respective rights of the parties when an easement holder asserts a right to fence lands owned by a servient property?

Of all the cases cited by counsel, Moyer v. Mortensen provides the most helpful analysis of the respective rights of the parties, where, as here, an easement holder asserts a right to fence lands owned by the servient property owner. In Moyer v. Mortensen, Mr. Justice Parrett analyzed the respective rights of the plaintiff servient property owner and the defendant easement holder, applied the test of whether the easement substantially interfered with the servient property, and concluded, at para. 44 of his reasons, that the defendants' purported exercise of their ancillary right to fence constituted a substantial interference with the plaintiff's rights.

In Moyer v. Mortensen, the plaintiff owned three contiguous parcels of land that ran from north to south. The defendant owned an adjacent property located to the west of the plaintiff's property. The defendant was also the holder of a right-of- way easement which provided access across the northernmost parcel of the plaintiff's property, to a road to the ease of that property. The plaintiff also used the easement in order to travel from one part of his property to another.