Dispute between neighbours in small Manitoba community ends with 'regrettable' court fight: judge

A judge has ruled a man in a small Manitoba community must give up a portion of his property, after a once accepted survey line led to a "regrettable" legal fight between two next-door neighbours.

Charlene Barnabe made an application for either a declaration of an easement, or to have the title to a portion of land vested to her, to allow her to continue using a garage and driveway that have encroached on her neighbour's property for years.

In a written decision dated Jan. 17, Manitoba Court of King's Bench Judge Chris Martin granted that application.

"It is most regrettable the parties felt compelled to resort to litigation and the court to determine this issue for them," Martin's decision said.

Barnabe and her neighbour, Dustin Robert, have lived beside each other on Rue Caron in St. Jean Baptiste — a community about 70 kilometres south of Winnipeg, with a population of less than 600 — since 2015.

However, unknown to either,  the original property lines were drawn according to a "river-lot" surveying system, while decades later, another survey aligned the property lines to the road at the front of the property, according to the decision.

That meant that part of Barnabe's attached garage and the approaching driveway technically encroached on Robert's property.

"This is not an unusual occurrence on Rue Caron," Martin wrote, with "other properties … similarly affected by the conflicting surveys" and "various structures not corresponding to the official property lines." 

The neighbours were "stunned" to discover a formal survey in 2016 — done when Robert considered building a fence — showed the original property line between the two homes ran through a portion of Barnabe's driveway and a part of her garage.

However, the neighbours continued to "co-exist harmoniously" until 2021, when "their rapport soured and the issue became contentious," Martin wrote.

"One or the other sought assistance from the local municipality, lawyers, the RCMP and now the court," his decision said.

'Petty reprisals'

Barnabe had lived at the Rue Caron property since 2015 with her common-law partner, who had owned it since 2010. She was bequeathed the home after her partner's death in 2018, and in 2021, Barnabe's new partner moved into the home.

The relationship between Barnabe and Robert took a turn due to "petty, corrosive actions" by Barnabe's new partner that aggravated Robert, said Martin.

"To be clear, Mr. Robert also undertook petty reprisals," Martin wrote in his decision.

Barnabe offered to purchase the encroached-upon land in July 2022, but Robert did not respond. They exchanged letters through lawyers that summer, with Robert wanting the encroachment removed and Barnabe looking for an easement — a right to cross or use someone else's property for a specified purpose.

The decision says an estimate submitted as evidence showed it would cost $25,700 for Barnabe to remove the driveway and garage and $53,900 to rebuild in another location.

Robert built a front fence near the property line in November 2022 and July 2023, which "essentially abutted" Barnabe's garage, meaning she "would have to trespass on his property to do normal maintenance on her garage," Martin wrote.

'Neither party gets exactly what they wish'

Martin ultimately sided with Barnabe, writing that she, her late common-law partner and Robert were "all honestly mistaken" about the property line until 2016, and there was "no negligence or fraud" by Barnabe or her partner.

When  Robert bought his property, "he assumed that the driveway and garage were properly on the neighbouring property. In other words, he did not believe that was his property," the judge's decision said.

He granted Barnabe's application, saying the encroached-upon land should be vested to her if "feasible from a technical and land title standpoint," and ordering an easement if not.

On  compensation, "the parties are far apart," Martin wrote, with Barnabe suggesting a one-time payment of $2,000 to $3,000, while Robert wanted an easement charge of $3,000 per year.

The judge ordered a one-time payment of $3,000 from Barnabe to Robert for either vesting or an easement. She also has to cover the cost of installing and modifying the fence surrounding the garage to allow a three-foot clearance, and any surveying or land titles fees needed to carry out the order.

"The net result of my order is that neither party gets exactly what they wish," Martin wrote, while also declining to award any other compensation to either.

"Given that I … consider neither party as being particularly responsible for the escalation of this matter to court, and the novel nature of the issue in St. Jean, I decline to award costs to either party."