Law360 Canada ( October 14, 2021, 5:58 AM EDT) -- Appeal by property owners from a decision dismissing their application for a declaration that rights of way registered on title in favour of two neighbouring properties were abandoned. The appellants purchased 121 Massey Street in 2017 and wanted to build a larger home on it. The houses situated on the dominant tenements, 174 and 176 Strachan, were row houses with rear gardens abutting 121 Massey Street, the servient tenement. 174 and 176 Strachan lacked direct access to their rear gardens except through the houses themselves. They each benefitted from a registered right of way that ran up the driveway of 121 Massey Street. The rights of way were established by the 1905 deed for 121 Massey. A previous renovation not later than 1986 extended the rear of the house at 121 Massey to within approximately one foot of the property line with 174 and 176 Strachan. The appellants’ intended construction would completely obstruct both rights of way. The application judge found that the nature of both rights of way was to permit access to the rear of 174 and 176 Strachan for property maintenance like renovations, repairs, and landscaping, rather than to provide day-to-day pedestrian access, and that the totality of the evidence did not establish non-use. She found that the rights of way remained useable and had in fact been used to access the rear of 174 and 176 Strachan as recently as 2015 by a contractor. The application judge also rejected a former tenant’s evidence that the house extension, sheds, trees, and fences had totally obstructed the rights of way and made them impassable and placed little weight on surveys that the appellants argued demonstrated the totality of obstruction....