Published Dec 09, 20255 minute readA judge has ordered a Cape Breton landowner to remove boulders that were preventing residents from accessing their property. 123RF STOCKArticle contentA judge has ordered a Cape Breton landowner to remove boulders that were preventing residents from accessing their property.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLY.Subscribe now to access this story and more:Unlimited access to the website and appExclusive access to premium content, newsletters and podcastsFull access to the e-Edition app, an electronic replica of the print edition that you can share, download and comment onEnjoy insights and behind-the-scenes analysis from our award-winning journalistsSupport local journalists and the next generation of journalistsSUBSCRIBE TO UNLOCK MORE ARTICLES.Subscribe or sign in to your account to continue your reading experience.Unlimited access to the website and appExclusive access to premium content, newsletters and podcastsFull access to the e-Edition app, an electronic replica of the print edition that you can share, download and comment onEnjoy insights and behind-the-scenes analysis from our award-winning journalistsSupport local journalists and the next generation of journalistsRegister to unlock more articles.Create an account or sign in to continue your reading experience.Access additional stories every monthShare your thoughts and join the conversation in our commenting communityGet email updates from your favourite authorsSign In or Create an AccountorArticle contentArticle contentJuergen Stutzinger and his wife, Olena Stutzinger, own a property on Eagle View Drive in Richmond County, about 16 kilometres outside of St. Peter’s.Article contentArticle contentThe couple from Germany acquired the land from Jens Blecker in 2012 along with a deed granting them a 66-foot right of way over Eagle View Drive that allows vehicular and pedestrian access to their property.Article contentIn an application to the Supreme Court of Nova Scotia, Stutzinger claims that Blecker, who owns Eagle View Drive and various other parcels of the surrounding land, placed large boulders along Eagle View Drive adjacent to his property line in July 2024.Article contentRCMP CALLEDArticle contentIn early August 2024, Stutzinger hired an excavator to remove the boulders, but was prevented from doing so by Blecker, who became upset and called the RCMP.Article contentStutzinger said he advised Blecker through legal counsel on Aug. 9, 2024, that the boulders were obstructing his use of the right of way.Article contentAfter receiving no response, Stutzinger said his legal counsel asked Blecker to remove the boulders on Sept. 27, 2024, but Blecker refused.Article contentArticle contentDuring an in-chambers hearing presided over by Justice Ann E. Smith in Halifax, Blecker acknowledged the existence of the deeded right of way.Article contentArticle contentHowever, he contended that the Stutzingers used the right of way beyond the scope granted by the deed and violated various restrictive covenants that require his prior written consent.Article contentBlecker said the deed prohibits unsightly storage of materials such as derelict vehicles, garbage, or cleared brush, and prevents dumping or spreading of waste materials, except for clean earth, rocks, gravel, or other materials used for grading or landscaping.Article contentAccording to Blecker, the Stutzingers imposed additional burdens on the servient land without approval by constructing garden beds, inserting boulders, excavating an artificial pond, operating heavy equipment, installing a flagpole, and storing materials and placing structures within the boundaries of Eagle View Drive.Article contentSNOW REMOVALArticle contentBlecker denied that he obstructed the right of way, saying that the work he performed in the summer of 2024 was necessary for winter snow removal and to prevent flood damage to the surrounding properties and ensure the safety, maintenance and functionality of Eagle View Drive.Article contentHe also stated that Stutzinger has engaged in threatening behaviour directed towards him and his family to prevent them from exercising their property rights.Article contentSmith accepted Stutzinger’s evidence that he placed a Sea-Can metal storage container close to Eagle View Drive shortly after coming to Canada from Germany in 2016. Stutzinger stated that Blecker did not object to the placement of the Sea-Can at that time and even prepared a base for it.Article contentBlecker stated that he advised Stutzinger at the time that the storage of the Sea-Can was to be temporary.Article contentArticle contentSmith said according to the affidavit evidence, the relationship between the Stutzingers and Blecker appears to have begun to deteriorate in 2019 when Stutzinger built a garage on the property.Article contentBlecker believed the garage extended into Eagle View Drive and was upset while Stutzinger countered that a survey confirmed it is entirely on his property.Article contentIn 2020, the Stutzingers dug a fire pond on their property. Stutzinger said there were no survey markers showing the extent of their property and the pond was dug partly onto Eagle View Drive. He said Blecker told him on a number of occasions that he was unhappy about the pond and that he apologized to him.Article contentStutzinger said that in December 2023 or January 2024, Blecker demanded he move the Sea-Can off of Eagle View Drive. He said they then moved the Sea-Can to its current location on their property in April or May 2024.Article contentArticle contentHe said they intended to build a car port on their property to cover the Sea-Can and store a camper but in order to do so planned to access the car port via Eagle View Drive.Article contentGERMAN VACATIONArticle contentIn mid-July 2024, the couple went to Germany for a two-week vacation.Article contentWhen they returned, Blecker had placed boulders along the border of their property in front of the Sea-Can and nowhere else along the length of Eagle View Drive.Article contentAs a result, Stutzinger said he cannot access that part of his property by vehicle and can’t move ahead with the construction of the car port he intended to build.Article contentWhile Blecker stated that the changes the Stutzingers made to the property obstructed the boundaries of the road, making it “extremely challenging to safely and effectively remove excess snow,” Smith said that doesn’t address whether the boulders Blecker placed interfere substantially with the Stutzingers’ rights.Article content“Regardless, it is apparent from the evidence before the Court, that Mr. Blecker has in fact cleared snow on EVD after the Stutzingers installed the pond, gardens and flag people in 2020. To suggest otherwise is not believable,” Smith wrote in her decision.Article content“Further, the exhibits to affidavit evidence before the Court show that there are other places on EVD to deposit snow, rather than at the northwest part of the Stutzingers’ property.”Article contentNOT A GATEArticle contentSmith concluded that the Stutzingers met their burden of proving that the large boulders placed by Blecker constitute an “unreasonable and substantial interference” with their use of the deeded right of way.Article content“I accept the evidence of the Applicant, that the placement of the boulders prevents his ability to access his property at that point. There is nothing in the wording of the deeded Right of Way which restricts access along the Right of Way to any particular point. The Respondent, as the owner of the servient lot, may not arbitrarily choose at what point the Applicant may access his property,” Smith wrote.Article content“The boulders placed by Mr. Blecker do not function like a gate. They are permanent in nature, and cannot be easily moved, or driven around.”Article contentSmith ordered Blecker to remove all of the boulders from the right of way at his own cost and do whatever work is needed to return the landscape where the boulders were placed to its prior condition by Dec. 31, 2025.Article contentShe also awarded the Stutzingers general damages in the amount of $1,000 for the inconvenience they suffered and granted them a declaration that they are entitled to use Eagle View Drive as a right of way for access to and egress from their property.Article content
Judge orders Cape Breton landowner to get his rocks off property
