border of the applicant's property, from the roadway to the back
boundary line at the rear of both properties.
[ 2] It is undisputed that the three-foot strip of land is owned by
the applicant. The dispute between the parties centres on what
rights the respondents enjoy in relation to the three-foot strip
and, in particular, whether that strip of land is subject to certain
restrictive covenants that confer rights on the respondents as the
owners of No. 97.
[ 3] The lot on which the applicant’s house at No. 99 sits was
created pursuant to a 1965 decision of the Committee of Adjustment. Although the relevant municipal by-law required a minimum lot frontage of 50 feet, that decision permitted a lot frontage
of 37 feet for No. 99. In order for that 37-foot frontage to be
attained, the owner of No. 99 was required to acquire a three-foot
strip of land along the western border of No. 97.
[ 4] In order to carry the transaction forward, a deed was regis-
tered on March 3, 1966 (as instrument number NY480231) by
which the then-owners of No. 97 conveyed the three-foot strip to
the then-owner of No. 99. This original conveyance of the three-
foot strip was a grant of the fee simple title in the land to the
“Grantee [ i.e., the owner of No. 99], its heirs and assigns to and
for its sole and only use forever”. The deed also contains language
encumbering the transferred three-foot strip with restrictive
covenants for the benefit of No. 97. Those covenants provide as
The Grantee [ i.e., the owner of No. 99] hereby covenants and agrees for itself,
its successors, or assigns not to interfere with, remove, damage, or otherwise
alter fences, hedges, driveways, structures, trees, gardens now erected or to
be erected upon the said lands or hereinafter erected or planted;
The Grantors [ i.e., the owners of No. 97] reserve unto themselves, their heirs,
executors, administrators or assigns, they shall [sic] have a right-of-way for
all purposes in, over, along and upon the lands hereinbefore conveyed.
The Grantee [ i.e., the owner of No. 99], for itself, its successors or assigns,
hereby agrees not to erect, construct or maintain any interference or obstruction which will block the airspace above the right-of-way or interfere with or
undermine the soil beneath the right-of-way.
The Burden and benefit of these Covenants shall run with and be a Charge
upon the lands hereinbefore conveyed.
[ 5] In October 1966, title to No. 99, including the three-foot
strip, was conveyed to the applicant’s parents. In 1967, the applicant’s parents made an application for first registration under the
Land Titles Act, now R.S.O. 1990, c. L. 5, in respect of No. 99. In
the legal description of No. 99 on the land titles register, the
title to No. 99 was said to be subject to a right-of-way in favour of