Does a neighbour have to recognize the reservation of surface lease fees reserved by a previous owner?

Kyle J. of this Court had an opportunity to review the same issues in Fleck v. Davidson Estate, 1995 CanLII 5746 (SK QB), [1996] 1 W.W.R. 686; (1995), 138 Sask. R. 121 (Sask. Q.B.). In that case, a father had sold farm land to his son in 1968 and retained the surface lease rentals on four oil wells. In 1973, the son gave the neighbour an option to purchase the lands. The option agreement contained a clause that specifically mentioned that the surface lease rentals were not being transferred but had been reserved by a previous owner. While there was a caveat on the title protecting the lessee’s interest in the surface leases, there was no caveat by the previous owner referring to the rent charge reserved when the neighbour exercised the option and obtained title in 1973. From 1973 to 1988, the surface lease rentals were paid to the previous owner. Some 15 years after taking possession, the neighbour brought an action for a declaration that since he had obtained an unencumbered fee simple title, he should not have to recognize the reservation of the surface rentals.