What is the scope of an easement where a tenant of a tenement wishes to change the character of the land so that the land can be used for a different purpose?
Ontario, Canada
The following excerpt is from Barbour v. Bailey, 2016 ONCA 98 (CanLII):
Moreover, the courts have been careful to restrict easements to the actual, continuous and uninterrupted 20-year use that has been openly and peacefully made of the property in issue. As this court noted in Henderson v. Volk, at p. 383: [T]he nature of the user cannot be changed by the owner of the dominant tenement. As an ancient example, a way used for the passage of carriages cannot be used for driving horned cattle or swine. In the same vein, the user is not entitled to change the character of his land so as to substantially increase or alter the burden on the servient tenant. Nor may the user increase the intensity of his use and thereby alter or increase the burden upon the servient tenement.
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