Outer Battery homeowner drops right of way fight, must pay legal fees

·4 min read
Steve Topping owns the property at 52 Outer Battery Road, just beyond the property of Colin Way. There's been a dispute over a right of way through both properties for decades. (Malone Mullin/CBC - image credit)
Steve Topping owns the property at 52 Outer Battery Road, just beyond the property of Colin Way. There's been a dispute over a right of way through both properties for decades. (Malone Mullin/CBC - image credit)

An Outer Battery man locked in a property dispute with his neighbour in the St. John's neighbourhood says he was left with no choice but to drop his legal action and walk away from it.

Steve Topping withdrew his lawsuit last week, ahead of a trial where it would have been decided whether he had a legal right of way to his house through his neighbour, Colin Way's, property.

Topping said the financial burden was too much to bear, and his lawyer advised him it was best to drop the case.

"I had to capitulate to save money," he told CBC News on Friday, after a hearing to determine whether or not Topping owed Way any legal fees.

Way's lawyer, Jeremy Loeb, had been seeking an order to have Topping pay for prep work they'd done ahead of the trial. They argued that by withdrawing days before trial, he'd caused Way to waste money on his legal defence.

The judge disagreed, saying it was normal for a civil matter to be dropped close to a trial, but still ordered Topping to pay for costs up to the point the case was dropped.

Topping figures that will put him out around $10,000.

One of several Outer Battery disputes

The property dispute pre-dates the more publicized issues involving Way and other Outer Battery residents.

Way drew the ire of his neighbours on the cramped, historic street when he set up a security light on a shed down the street from his house. Neighbours complained the light was pointed at their houses, and was creating constant daylight conditions on their properties.

Submitted by Steve Topping
Submitted by Steve Topping

Way was charged with mischief, and will appear in court again on May 17.

Topping's dispute goes back to the previous owner of Way's house, Keith Garland. Topping said there had been an agreement for years that people could access the house at 52 Outer Battery Road — situated past the Garland property and down over the side of a steep cliff — through a boardwalk on Garland's property.

In 1995, however, Topping said Garland destroyed the boardwalk and cut off access to 52 Outer Battery Road. Topping and Garland came to an agreement in 2017, that Topping could rebuild the pathway. However, Topping says Garland later gave him a contract to sign, which said he could revoke the right of way with 30 days' notice. Topping refused to sign, and took the matter to court.

Dan Arsenault/CBC
Dan Arsenault/CBC

Way later bought the property from Garland, and continued to deny access through the boardwalk pathway.

Topping was able to find aerial footage from as far back as 1956 which shows his house and the pathway leading down to it.

"I understood that I had an easement of necessity," he said. "I was encouraged by all the old fishermen, including Charlie Pearcey and Jack Wells, and everyone who grew up in the Battery that what I had was very real."

Topping said he later discovered he may not have an easement of necessity because he built a secondary access to his property down over a steep cliff.

Unfinished business

That secondary access sits just beyond a deck on Way's property at the end of Outer Battery Road, which also serves as the Parks Canada entrance to the North Head Trail on Signal Hill. Topping is now concerned he could be left with no access at all if Way decides to block the deck.

Parks Canada said in December that Way had raised several issues with them, and they had done some work on the deck to direct hikers away from his door and onto the trail. A spokesperson said conversations were ongoing to find a "mutually satisfactory solution."

Google Maps
Google Maps

Despite Topping dropping the right of way case, he and Way still have unfinished business in the Supreme Court of St. John's. Way is suing Topping for defamation, after Topping posted audio of an encounter with Way on the audio sharing platform Soundcloud and linked to it on Facebook.

In the audio, Way can be heard directing anti-gay slurs at Topping and saying he'll "debone" him, and "boot f--k" him "down to Water Street."

Way claimed the text attached to the Soundcloud post and the subsequent Facebook posts and comments were defamatory. The matter was set to go to trial last November, but it was delayed.

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