In Erickson v. Jones 2008 BCCA 379, the respondents were tenants-in-common of property described as the "Erickson Property." Initially, the Ericksons accessed their land by a road that ran through the middle of two properties, one belonging to Mr. Jones and the other to Mr. Loper. Mr. Loper approached the Ericksons and asked them to construct a new road on the eastern boundary of the Jones and Loper properties. The Ericksons agreed, and spent time and money creating the new road. Starting in 1977, the Ericksons used the new road daily and expended money to maintain the road. In 2002, Mr. Jones purchased Mr. Loper’s land and advised that he intended to limit or prevent access to the new road.
The Ericksons sued in the Supreme Court for an order that the old road was a public road or, alternatively, that they had a private easement over the new road. The Supreme Court held that the old road was not a public road but that the Ericksons were entitled to an equitable easement over the new road on the basis of "proprietary estoppel" (i.e., the doctrine that, where one person is encouraged to act to its detriment by another party in circumstances where it would be unjust for the latter to insist on its strict legal rights, the court will provide relief to the affected party).
Mr. Jones appealed to the B.C. Court of Appeal, but was unsuccessful. The court confirmed that, in the circumstances, it would have been unfair for Mr. Jones to assert his strict property rights and deprive the Ericksons of access, as they had relied on Mr. Loper’s and Mr. Jones’s conduct and refrained from pursuing any entitlement to use the old road. In addition, they had been encouraged by both parties to expend money to construct and maintain the new road.
The case is interesting because it demonstrates that, given the right set of facts, the doctrine of proprietary estoppel may circumvent the effect of s. 24 of the Land Title Act, which abolishes "prescriptive" easements in British Columbia. A prescriptive easement is one that arises from a long period of uninterrupted land use, without secrecy, force or permission. In contrast, an equitable easement may arise, on the basis of proprietary estoppel, where a landowner has, by words or conduct, encouraged a land user to believe that the landowner will not enforce its strict legal rights, and the land user acts on this belief by taking action or expending money such that he or she would suffer detriment if no longer permitted to use the easement area. The court in Erickson did not address the relationship between prescriptive and equitable easements, but it is clear that, if the elements necessary to support an equitable easement on the basis of proprietary estoppel are present, a land user may be able to enforce the easement, even in the absence of a written, registered agreement.