A Kaleden couple who's property's only access route required crossing five neighbouring lots got a victory in court to keep that easement clear.
Jack and Gloria Horning, who live at 114 Arlayne Rd. in Kaleden, only have access to their property through a dead-end road built on an easement across the five neighbouring properties.
The easement was filed in 1979 and includes a legal charge on each of the five neighbouring lots to ensure a "free and uninterrupted Right-of-Way for persons, animals and vehicles to use, enter, pass and repass over..." that the Hornings claimed had been broken.
The owners of all five of the neighbouring lots were originally sued, but the Hornings amended their claims and came to agreements with all except one couple, Ryan and Amber Sather, who own 122 Arlayne Rd.
The Hornings were suing over two specific aspects: that their neighbours left vehicles parked on the easement lands in a way that made passing through difficult, and that a retaining wall and irrigation box had been built onto the easement land.
The couple had sent out a legal letter to all of the properties in 2023, citing repeated and ongoing instances of vehicles being left standing on the easement. When that didn't work, the lawsuit was filed.
In a Monday, July 7, ruling in Penticton Supreme Court by Justice Briana Hardwick, the Hornings won half the legal battle.
Justice Hardwick rejected the couple's claim over the retaining wall and the irrigation box, finding that they did not interfere with the ability to pass through the easement.
When it came to the issue of vehicles interfering with the easement, Justice Hardwick found the evidence was far more persuasive, noting multiple submitted photographs in evidence that showed not only regular vehicles but larger stationary recreational vehicles greatly narrowing the navigable space, including one or sometimes two large travel trailers that could be seen in the photographs occasionally covered in tarps.
"Further, there is a photograph of a garbage truck passing through the Easement Lands with what appears to be approximately one foot of clearance," Justice Hardwick wrote.
Another photo shows space that Justice Hardwick said appears to provide just enough room for a full-size pickup to pass through if it pulled in its mirrors.
"The Easement does not confer a right to maneuver amongst various standing vehicles to pass and repass through the Easement Lands," Justice Hardwick wrote. "It confers a right to free and uninterrupted pass and repass."
A permanent injunction was issued by Justice Hardwick ordering the Sathers to keep their section of the easement clear of any standing vehicles for as long as they remain the registered owners of the property.
Despite winning a significant portion of their claim, the Hornings were not granted any damages related to their claim. They were also granted 14 days to prepare submissions on what they should be awarded with regards to legal costs.
