SUPREME COURT OF NOVA SCOTIA Citation: McInnis v. Stone, 2016 NSSC 69

Date: 20160304 Docket: Halifax No. 427425

Registry: Halifax

Between: Tom J. McInnis

Applicant v.

Daniel J. Stone and Francine Michelle Stone

Respondent

LIBRARY HEADING

Judge: The Honourable Justice Arthur W.D. Pickup

Heard: October 26, 27, & 28, 2015, in Halifax, Nova Scotia

Final Written Submissions:

Respondent’s post hearing submissions December 8, 2015 Applicant’s response submissions January 8, 2016

Subject: Property; adverse possession; colour of title; lost modern grant; trespass

Summary: The applicant’s property, purchased in 2003 and migrated to the land registry in 2004, included a piece of land to which the respondents later claimed possessory title on various grounds. Among other things, the respondents physically altered parts of the disputed property (such as by cutting down trees) and physically excluded the applicant from it. They went so far as to call the police when the applicant entered the disputed area. The applicant sought damages for trespass and negligence, as well an injunction.

Issues: (1) Did the respondents have title by colour of right?

(2) Did the respondents have title by adverse possession?

(3) Did the respondents have an easement by lost modern grant?

(4) Did the applicant establish a claim for trespass and/or negligence?

(5) Was the applicant entitled to an injunction?

Result: (1) The respondents’ colour of right claim was based on the deeds of predecessors in title. Their own deed did not include any of the disputed area. The respondents could not assert colour of title where their own deed did not include any of the disputed land. Moreover, the respondents had not in fact established that the disputed lands were included in their predecessors’ deeds. Further, the actions of the respondents and their predecessors in respect of the lands did not support the view that they had the requisite bona fide belief. (2) The evidence did not establish the continuous, open and notorious, and exclusive possession by the respondents required to found adverse possession. (3) The respondents had not established the existence of an easement by lost modern grant. (4) Trespass was established. There was overwhelming evidence of interference by the respondents with the applicant’s possession of the disputed property. The applicant was entitled to general damages as well as punitive damages, in view of the respondents’ calculated and malicious attempt at a “land grab.” A claim for special damages was not made out, however. (5) The court did not issue and injunction, but left that as a possibility if necessary in the future.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF NOVA SCOTIA Citation: McInnis v. Stone, 2016 NSSC 69

Date: 20160304 Docket: Halifax No. 427425

Registry: Halifax

Between: Thomas J. McInnis

Applicant v.

Daniel Joseph Stone and Francine Michelle Stone Respondents

Judge: The Honourable Justice Arthur W.D. Pickup

Heard: October 26, 27, & 28, 2015, in Halifax, Nova Scotia

Final Written Submissions:

Respondent’s post hearing submissions December 8, 2015 Applicant’s response submissions January 8, 2016

Counsel: Tipper McEwan and Daniel MacKenzie, for the Applicant Robert Pineo and Leslie Sawers, for the Respondents

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By the Court:

This case involves a dispute over land. The applicant, Thomas J. McInnis says the respondents are attempting a land grab. The respondents, Daniel Joseph Stone and Francine Michele Stone, say they and their predecessors in title have acquired a portion of the McInnis lands by adverse possession, or, in the alternative, have acquired an easement by prescription or lost modern grant.

The applicant was born and raised in Sheet Harbour. He was a lawyer and later served in the Nova Scotia Legislature. He is now a Senator. When he retired he moved back to Sheet Harbour onto the homestead property that he inherited from his father. He purchased an additional piece of land from Kimberly-Clark in 2003. This lot bordered the property of Gary Russell on three sides. Mr. Russell was one of the predecessors in title to the respondents.

The applicant’s property was migrated and registered with the Land Registry office on May 13, 2004. There is no dispute as to the paper title to the applicant’s property, including that of the included disputed lands.

The respondent Daniel Stone lived in Sheet Harbour in the 1970’s and was familiar with what is now the Stone property. He recalls playing in the vicinity and swimming in the water off the Stone property, and as well fishing off a dock that was there at the time.

In November or December 2010 the respondents saw an advertisement for the sale of what is now the Stone property. They purchased it from Gary Russell on February 25, 2011.

In 2011 the respondents attempted to purchase from the applicant a piece of land between their house and the East River (“the disputed property”). The applicant refused to sell. The respondents alleged that they in fact owned the property but were attempting to avoid a dispute by offering to purchase it. Shortly thereafter the respondents began to claim ownership of the disputed land. They felled trees, excavated portions of the disputed property and began to actively claim the land, including calling the RCMP if they saw the applicant on the land.

The applicant says the respondents have directly interfered with his possession of the disputed land and, therefore, are liable in damages.

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The respondents say they and their predecessors have established a possessory claim to the disputed lands, or, in the alternative, have acquired an easement by the doctrine of lost modern grant.

The disputed land

The disputed property is a portion of the lands the applicant acquired from Kimberly-Clark in 2003. It is depicted on a property online map contained in Exhibit “A” to the affidavit of Thomas J. McInnis. The disputed lands lie between the western boundary of the respondents’ property and the river. The disputed land is also shown on the plan of survey prepared by Gary S. Parker, NSLS, which is found at Tab B of the affidavit of Mr. McInnis.

Viewing

At the request of the parties I travelled to Sheet Harbour and took a view of the property on October 27, 2015. Both parties and their counsel were present.

The evidence before the court

Affidavits were filed by both parties. The evidence for the applicant is set out in the following affidavits:

Affidavit of Thomas J. McInnis filed May 16, 2014.

Rebuttal affidavit of Thomas J. McInnis filed August 4, 2015.

Affidavit of Stephen Rutledge filed June 15, 2015.

Affidavit of Craig R. Berryman filed October 16, 2014.

Affidavit of Martina Neuer filed April 20, 2015.

Affidavit of Robert MacDonald filed October 3, 2014.

Affidavit of Paul Handley filed October 3, 2014.

Affidavit of Derek Horne filed October 3, 2014.

Affidavit of Garry Parker filed October 3, 2014.

Affidavit of Peter deBellefeuille filed October 3, 2014.

Affidavit of Thomas McInnis filed October 3, 2014.

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The applicant Thomas J. McInnis, Gary Stewart Parker, Stephen Rutledge and Martina Neuer were cross-examined by the respondents’ counsel.

The evidence for the respondents are set out in the following affidavits:

Affidavit of Thelma Crowell filed November 28, 2014.

Affidavit of Walter Vandekieft filed September 2, 2015.

Affidavit of Daniel Joseph Stone filed November 28, 2014.

Affidavit of Francine Michele Stone filed November 28, 2014.

Affidavit of Edward J. Webber filed December 19, 2014.

Affidavit of WalterVandekieft filed December 23, 2014.

Affidavit of Ryan P. Brennan filed December 19, 2014.

Affidavit of John Robert Vandekieft filed December 19, 2014.

Daniel Joseph Stone and Francine Stone were cross-examined by the applicant’s counsel.

Gary Russell Jr. was subpoenaed to give evidence by counsel for the respondents, as Mr. Russell refused to provide an affidavit. He was cross-examined on his testimony.

Issues:

The issues are as follows:

1. Do the respondents and their predecessors in title have color of title to the disputed property?

2. Have the respondents established a claim for adverse possession?

3. In the alternative, have the respondents met the requirements for an easement by the doctrine of lost modern grant?

4. Has the applicant established his claim for trespass and negligence?

5. If so, is the applicant entitled to special damages, general damages and/or punitive damages?

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6. Is the applicant entitled to an injunction?

Issue #1 Do the respondents and their predecessors in title have color of title to the disputed property?

The respondents submit that they have color of title over the strip of disputed property to east of the Capital T Trail, and that their predecessors in title had colour of title before them.

The applicant, in response, argues the respondents have not led evidence to prove that the deeds held by their predecessors in title included the disputed land. He says Mr. Russell did not hold a bona fide belief that he owned the disputed land. For these reasons the applicant says the respondents cannot establish a claim for the disputed land using the doctrine of constructive possession under colour of right.

Colour of right is established where the description in a deed includes lands claimed by adverse possession and where the holder of a defective title holds a bona fide belief that they own the land. In McCormick v. McDonald, 2009 NSCA 12, the Court of Appeal discussed colour of right with respect to constructive possession:

92 An essential prerequisite to a claim of constructive possession is that the claimant be able to rely on colour of right, that is by having some paper title, albeit a defective paper title. It is not the deed or other instrument which gives title, but rather the claimants' bona fide belief of holding title coupled with the adverse possession under it for the requisite period of time, with colour of right. The paper title, though defective, may then define the boundary of the legally effective title by adverse possession.

[Emphasis added]

And further at paras. 94 and 95:

94 Since paper title is an essential element of constructive possession - only a party with paper title to land can claim constructive possession; the constructive possession is limited to the property described in the deed. Wood v. LeBlanc (1904), 34 S.C.R. 627 (SCC) at para. 47-51. Here too the respondents' claim would fail because they did not have a paper title.

95 Neither would the respondents be entitled to claim constructive possession of the disputed parcel merely because they believed that their deed encompassed the parcel. The extent of a deed is not altered by the subjective belief of a party:

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see Knock, supra. In Duggan v. Nova Scotia (Attorney General) (2004), 222 N.S.R. (2d) 229 (S.C.), the plaintiffs' deed showed a depth of 775 feet, but they claimed they owned land beyond that. Moir, J. found that their claim of constructive possession was limited to the distance shown on their deed. See as well R.B. Ferguson Construction Ltd. v. Nova Scotia (Attorney General) (1989), 91 N.S.R. (2d) 226 (C.A.).

[Emphasis added]

In Podgorski v. Cook, 2013 NSCA 47, the Court of Appeal followed McCormick, supra, and set out the relevant principles with respect to adverse possession, colour of right and constructive possession:

49 It will be useful to remind ourselves of the relevant principles before turning to their application to the facts:

(4) A possessor may have constructive possession of more than what he occupies if he has colour of title - i.e., a deed - whether or not the deed is valid, (MacDonald v. MacCormick, 2009 NSCA 12, para. 93). Otherwise, he can only claim what he actually occupies;

(5) To claim constructive possession, the adverse possessor must have a bona fide belief that he has title, (MacDonald v. MacCormick, para. 94);

(6) But there can be no constructive possession based on the possessor's belief where his deed does not include the land over which possession is claimed,…

From these authorities it is important to highlight that to claim constructive possession of more than what one occupies, a possessor must have a bona fide belief he has title. Equally important is that to claim constructive possession the possessor’s deed must include the land over which the possession is claimed. The requirement for inclusion in the possessor’s deed of the claimed lands is discussed in Cook, supra:

55 There is a difference between an adverse possessor who enters under colour of title from someone who has no such claim. Possession under colour of title extends to all property in one's deed. Possession without colour of title only extends to what is actually occupied, (see cases at para. 49(6); especially Wood v. LeBlanc, per Taschereau, C.J.C.). As Mr. Cook's deed did not include the disputed lands, he could only claim what he or his predecessors had continuously, adversely occupied over a 20-year period.

56 Although Mr. Cook testified that he believed that his deed included the disputed lands, there was much evidence that contradicted this belief. His own survey does not show this. The dimensions in his deed are not extensive enough

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to include both his house and the disputed lands. He did not object to Mr. Rose's survey markers - which limit his boundary to the line established by Mr. Berrigan - because he said he had not surveyed his land. That survey would be unnecessary if he thought his deed included the disputed lands. Moreover, the judge accepted Mr. Rose's evidence that Mr. Cook sought and obtained permission to use part of the disputed lands. None of this supports a "colour of title" claim to possession by Mr. Cook.

The following are the issues to be considered:

1. Can the respondents claim a colour of right when their deed registered under the LRA does not include any of the disputed lands?

2. Can the respondents claim colour of right based on deeds of their predecessors in title which purportedly contained the disputed lands?

3. In either event, do the respondents have their requisite bona fide belief?

1. Can the respondents claim a colour of right when their deed registered under the Land Registration Act does not include any of the disputed lands?

The respondents do not dispute that the deed they received from the Russells and which was registered under the LRA did not include any of the disputed lands. The lands of the respondents are bounded on all sides by the lands of the applicant.

It is clear from the case law that a prerequisite to claim colour of right is that the lands being claimed by possession be included in the deed they are claimed under. Here the disputed lands were clearly excluded from the deed of the respondents and, therefore, they cannot succeed on a claim based on their deeded title.

The question then becomes whether the respondents can claim colour of title based on deeds of their predecessors in title.

2. Can the respondents claim colour of right based on deeds of their predecessors in title which purportedly contained the disputed lands?

The first question to be determined is whether the “three deeds” that purportedly comprised the land purchased by the Russells contained the disputed lands.

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The respondents rely on Mr. Russell’s trial evidence that he and his family were told that these three deeds contained all of the lands from the East River up to and including the Stone lands. Further, he testified that he did find some of the landmarks listed within the three deeds on the disputed property.

With respect, I am not persuaded that Mr. Russell’s evidence is sufficient to prove that these deeds contain the disputed lands. I note that there was no survey evidence provided to prove the inclusion of a portion of the disputed lands within these three deeds. Secondly, none of these deeds described the Stone property as extending to the East River. Schedule A to the deed of Quillinan to Vandekieft did not describe the property as extending to the water, nor does the deed from Mr. Vandekieft to Mr. Russell Sr., or the deed from Mr. Russell to his son.

As to Mr. Russell’s evidence that he located some “landmarks” on the disputed property, specifically a rock marked “x”, this is of significance to the respondents because if they can prove that this landmark was within the disputed lands and that this portion of the lands was occupied, then they could claim the whole of the property by way of colour of title.

Mrs. Stone made reference to this rock to Mr. Parker, who was retracing the Stone lines at the time. He testified that this rock could not be reasonably relied on for surveying purposes. Moreover, it is questionable whether Mr. Russell is qualified to locate the rock with an “x” on Exhibit 3. This would, in my opinion require expert survey opinion evidence. Therefore, Mr. Russell’s testimony is of little weight in this regard.

I am not satisfied that the respondents have met their burden of establishing that the deeds of their predecessors include the disputed lands. Therefore they cannot establish their claim for adverse possession through their predecessors in title.

3. In either event, do the respondents or the predecessors in title have the requisite bona fide belief?

It is difficult to accept that the respondents had the requisite bona fide belief that their deed contained the disputed lands, for several reasons. For example:

i. when the respondents viewed the property in December 2010, they were told by the real estate agent that the property did not contain water frontage or access to the waterfront;

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ii. the respondents were provided by the agent with a property online map and other listing documents, all which made clear that there was no water frontage or water frontage access; and

iii. in the spring of 2011 the respondents offered to buy the land from the applicant.

As to Mr. Russell, the respondents’ predecessor in title, I am not satisfied that the evidence has established a bona fide belief that he and his wife owned the disputed lands. I note, for example, the following points:

i. Mr. Russell did not assert a claim of ownership to the disputed land in 2003 when the applicant bought the McInnis property. In fact, Mr. Russell contacted the forestry company with a request to buy the property himself;

ii. when he listed the Stone property for sale, Mr. Russell did not claim any waterfront land or access was included; and

iii. the description of the lot conveyed by the Russells to the respondents described the lot as being bounded by the McInnis property on all sides.

In my view, neither the respondents nor Mr. Russell have proven the requisite bona fide belief.

For all these reasons, the respondents cannot establish a claim for constructive possession personally or through their predecessors in title.

A final thought: the basis for a claim of colour of right is the belief that you have a claim to property described in your deed (albeit in error) and occupy those lands. Here no such situation exists. The respondents’ land as registered under the LRA is clearly bordered by the McInnis lands on all sides. To allow a claim based on deeds of predecessors in title seems to me to be outside the doctrine of colour of right even if the respondents had proved a colour of right in their predecessors in title.

The respondents having failed to prove constructive possession, the question is whether they have established a claim for adverse possession over all of the disputed lands.

Issue #2 – Have the respondents established a claim for adverse possession?

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The elements of adverse possession are explained by Charles W. MacIntosh, Q.C. in his text Nova Scotia Real Property Practice Manual (Markham: Lexis Nexis) at p. 7 – 21:

Many years ago the requirements for a possessory title were stated to be “nec lam, nec vie, nec precaria” (without stealth, without violence, without permission). The present statement of the requirements is that “possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail. However, where there is a mutual mistake and both parties are under a misapprehension as to the location of the boundary between their properties, the requirement for “adversity” is not applicable.

[Emphasis added].

In Pettipas v. Hunter Noel Holdings Ltd., 2015 NSSC 313, the court confirmed these principles set out by MacIntosh, at para. 13

…A claimant must prove that he had actual possession for the necessary period; and that his possession intended to, and did, exclude the true owner from possession (1280731 Ontario Inc. v. Lefebvre (2008), 69 R.P.R. (4th) 268, [2008] O.J. No. 1780 at para. 21 [Lefebvre]). A claimant must further show that his acts of possession were "open, notorious, peaceful, adverse, exclusive, actual and continuous".

Under the Limitation of Actions Act, R.S.N.S. 1989, c. 258 (now the Real Property Limitations Act), a claim for adverse possession will be made out when these elements are proved throughout a consecutive 20 year time period. It is also clear from the case law that there must be persuasive evidence of adverse possession. The Nova Scotia Court of Appeal said in Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39, at para. 20:

20 From this review of the authorities it is clear that the claimants of possessory title have the burden of proving with very persuasive evidence that they had possession of the land in question for a full 20 years and that their possession was open, notorious, exclusive and continuous. They must also prove that their possession was inconsistent with the true owner's possession and that their occupation ousted the owner from its normal use of the land. As well, possession by a trespasser of part is not possession of the whole. Every time the owner, or its employees or agents, stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession.

The burden is on the respondents to prove all the requirements for establishing a claim of adverse possession.

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In Board of Trustees of Commons Land. v. Tanner, 2005 NSSC 245, the Court commented on burden of proof at para. 26:

26 The burden is on the person seeking to extinguish the title of the legal owner to prove acts of possession that are capable of extinguishing title considering the nature of the lands and other circumstances. This is the fifth principle enumerated by Hallett J., in his outline of the basic principles of adverse possession in Lynch v. Lynch (1985), 71 N.S.R. (2d) 69.

Evidence of adverse possession by the respondents

John Robert Vandekieft stated he was the son of Robert and Martha Vandekieft who purchased the Stone property between 1980 and 1982. He said the house on the property had not been lived in “for a while” and required work and renovations. Family members assisted his parents in carrying out this work.

Thelma Crowell is an aunt of the respondent, Daniel Stone, and a neighbour. She lived in close proximity to the area known as Ruth Falls for 35 years. Ruth Falls is apparently close to the subject lands. She knew the previous owner John Quillinan and said she knew him because her husband’s office (Fisheries and Oceans) was near to his property. Mr. Quillinan was a predecessor in title to the Stones. She stated that she often observed the Quillinans “using the property all the way to the river”. She said Mr. Quillinan had a dock jutting from the riverside portion of the property out into the river. Finally, she said she had seen children from the area and their friends fishing from Mr. Quillinan’s dock.

An affidavit was provided by the respondent Daniel Joseph Stone. He stated he purchased the Stone property from Gary Russell Jr. on February 25, 2011. The following paragraphs of his affidavit are relevant to his claim of adverse possession:

17. After closing, Francine and I began attending the Stone Property on weekends to do work on the house and property.

…

21. Outside, on the Stone Property, we cleaned up the property, including by cutting down dead trees and cutting underbrush and other growth including on the Disputed Property. We have done this work since moving into the Stone Property and it is ongoing.

22. I considered the dead trees to be safety and fire hazards.

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23. In or about May of 2011, I telephoned Mr. McInnis to advise him that I would be putting my boat in the river, as I knew that Mr. McInnis had had some disagreements with the previous owners of the Stone Property. Mr. McInnis purported to forbid me from doing so.

…

30. When I put my boat in the river in 2011, we used a slipway in Sheet Harbour. I tied the boat to a large rock in the water just off the Disputed Property.

31. On July 24th, 2011, I received a letter from Mr. McInnis which purported to order me to stay off the Disputed Property.

32. On July 26, 2011, I wrote to Mr. McInnis, again stating that the waterway in front of the disputed property was public as I intended to moor by [sic] boat there. I asked Mr. McInnis to ensure that his “No Trespassing” signs were not posted on the Stone Property.

33. We access our boat via an old slipway off the disputed property, or we wade out to the boat, depending on the tide at the time.

34. Every week when we would come back to the Stone Property, there would be new “No Trespassing” signs posted, which would get closer and closer to our house every week.

35. Some of the trees that I cut down on the Stone Property had “No Trespassing” signs on them

…

49. Regarding paragraph 158 of Mr. McInnis’s Affidavit, on or about the beginning of October, 2011, I noticed a small piece of the Disputed Property had been mowed.

50. Around this time, we also saw a gentleman known locally as “Buzzy” whose actual name I do not know, cutting brush and windfalls on the Disputed Property.

51. This is the only time any of the Disputed Property was mowed or “kept up” in any way by anybody but us.

52. We consider these incursions to be a trespass on our property.

53. Otherwise, the trail is not maintained at all, and not used by Mr. McInnis and his wife.

54. There was no sign when we purchased the Stone Property that this trail was or had been maintained in any way.

55. The trail was mostly used by my neighbour, Anthony Gills and his family, with our permission, to access the water.

…

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67. I consider that the land between my house and the East River is owned by Francine and me.

…

73. In 2012 I continued to clear my land of trees that we wanted removed, as well as underbrush.

74. I [sic] to dead trees, I have removed some softwood trees that blocked the view from my house to the East River. These trees were dead or fallen.

75. I do not remove living hardwood trees.

76. We regularly use a small fire pit on the Disputed Property for evening campfires.

77. In or about the spring of 2013, I saw Mr. McInnis and Brenda McInnis walking up from the East River.

78 I said, “Is there something I can do for you?” and Mr. McInnis replied, “You’re going to fucking find out what you can do for me.”

79. In or about the fall of 2013, I was in my house and saw Mr. McInnis on my property taking photographs of my fire pit.

…

88. I consider the land between our house and the East River to be our property. I do not hesitate to use it.

Mrs. Stone also filed an affidavit, which for the most part mirrored Mr. Stone’s evidence.

Gary Russell Jr. gave viva voce evidence. The Russells owned the property from May 1984 to February 25, 2011. Mr. Russell testified that his father purchased the property in 1984. At that time Mr. Russell was approximately 19 years old. He testified that he had visited the property every couple of weeks. His father used the property as a cottage, but at one point his parents lived there for about two years but split their time during that two years between there and their Ottawa residence. His direct testimony was that his parents spent “half the year roughly between there and Ottawa”.

Mr. Russell testified that his parents used the entire piece of property, in particular, the lands to the east and west of the Stone property. The property in dispute is to the west. From 1984 onwards, he said, the property was used for recreational purposes: campfires, fishing, swimming, exploring and as a base for hunting. He qualified that he did not hunt on the property but travelled to hunt by car or all-terrain vehicle from there to other areas such as Loch Harbor Mines. He

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testified that they had campfires on the east side of the house but not on the west side, which is the lands under dispute. He testified there was a little dock on the waterfront and a little boat ramp.

A photograph was entered into evidence as Exhibit 4. Mr. Russell identified the individual on the photograph as his father standing on a dock that he had built there for recreational purposes. He described the dock as being approximately 20 feet by 12 or 14 feet wide, set on some rocks that were there from a previous dock. He testified that his family did not use the dock to launch a boat but did use it for swimming. He testified that he believed the dock was constructed in 1992 because his mother took the picture that year.

Mr. Russell sold the property to the Stones in 2011. He was asked on direct examination whether he used the property throughout the entire period of ownership by his father and then by himself. His response was that he used it more when he had an apartment in the city, but when he purchased his own house he went down there roughly every week or two to cut the grass and maintain the property. In direct examination he testified:

Mr. Pineo: So just as a general timeframe reference, you’ve testified after looking at the deed that is was around 1984… in 1984 that your parents purchased the property. When did you sell the property to the Stones?

Mr. Russell: It would have been about four years ago I believe – roughly.

Mr. Pineo: So 2011?

Mr. Russell: Yes.

Mr. Pineo: And did your use of the property continue throughout that entire period?

Mr. Russell: I visited the property twice I think since I sold it to them – yes.

Mr. Pineo: I meant that prior to you selling the property did you continue to use it throughout that entire period?

Mr. Russell: Oh yeah but not as frequently. We used it more when I had an apartment in the city. We used it frequently and then as I had my own house I got down there roughly every week or two to cut the grass and maintain it the best I could. Hook up the water in the spring, shut her down in the fall and stuff, but it would be roughly every two weeks we used the property - at a minimum. It would depend if I was sailing or not. Things like that. And then when I wasn’t there I gave it to my buddy – sometimes he used it.

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It is noteworthy that he indicated his occupation of the property as stated was subject to “if I was sailing or not”, suggesting an absence of use of the property during that time. This issue will be elaborated on later in the decision. It is also of note that no evidence was led by the respondents as to what, if any, occupation there was of the property when he was “sailing”. He referred to giving it to “my buddy”, but he qualified by saying he “sometimes he used it”. No further evidence was provided.

Mr. Russell testified that during his parents’ and his own ownership he did not notice any use of the disputed property by lumber companies, nor any official company representative on the property. There was no evidence as to the date he purchased his property in the city.

Mr. Russell recalled talking to Mr. McInnis about the property and testified that they both used it and never had any issues. Later in his testimony he described further occupation. He indicated that he planted pine trees to provide shelter around his campfire. He planted maple trees, rose bushes and kept the trails clean. He built a set of stairs down to the dock, but basically kept the waterfront the way it was, with the exception of trying to keep a path there for the use of all.

Mr. Russell confirmed that his father moved to Ottawa around 1988. Although he claimed to have ownership of the property between the Stone property and the waterfront, Mr. Russell admitted on cross-examination that when he put an ad on Kijiji to sell the property, he used a property online map which did not include the disputed property. He also testified that he contacted Kimberly-Clark when he heard that Mr. McInnis was interested in buying the disputed land from them and asked them about obtaining water access.

Mr. Russell indicated that he retired from the Navy approximately four years ago. Prior to that he was on duty aboard a Navy ship from time-to-time and would be deployed for up to a year every three or four years. No dates were given for these deployments.

Evidence of adverse possession and ownership of the disputed lands by the applicant

The applicant filed an extensive affidavit on October 3, 2014. He is the owner of what he refers to as the McInnis lands which were purchased from Kimberly-Clark in September 2003. The “disputed lands” are a portion of the

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lands purchased from Kimberly-Clark, consisting of the lands fronting on the East River to the west of the Stone property.

The applicant grew up in this area. He was born in 1945 and lived in the same house until he left for university. He practiced law for a time and was the MLA for Eastern Shore between 1978 and 1993. Sheet Harbour was a part of his riding. During these years, he said he often travelled to Sheet Harbour to meet with constituents and visit his parents.

The applicant stated that even before he purchased the property he would use the McInnis lands, including the now disputed lands.

The McInnis lands were often referred to as company lands. In his affidavit he stated:

38. In the late 1940’s, through to the 1950s and 1960s I and the other members of my nuclear family would pick wild berries in the area of Campbell’s Brook which is to the South and East of the Stone Property. We also crossed what is now the McInnis Property to gain access to the river by using the Trail. We would go down to the river to swim, have wiener roasts, and sit by the water. We did not fish there. However, I always understood that the land was Company land and that it was used for forestry purposes by the various companies that owned it from time to time.

39. As kids we played all over the East River area. We played cops and robbers, cowboys and Indians, and other games all throughout the forested property in the area; both on and off what is now the McInnis Lands. We roamed all over the lands in the area.

40. As a young boy I remember the Company harvested the forest on the land. The Company truck driven by Bill Coady got stuck down across from my parents’ home on this somewhat crude woods road. The Company and their employees were the local fire department when I was a young boy.

41. The Company had one small truck with a tank on it which carried little water. The Company was the fire department in those days. Following a fire in our area they constructed on the Company lands (what is now the McInnis Property) on Campbell’s Brook South of the Quillinan [sic], now Stone property, a huge reservoir of water held in place by a dam constructed with their dozer driven by their employee Laurie Rutledge. This was likely in 1960 – 1963.

42. I was interested in watching the Company’s equipment work on the land, and build the reservoir. These events happened across the street from my parent’s homestead and provided a source of entertainment.

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43. In the 1970’s, mainly on the weekends I would visit with my parents and my Aunt Annie and Roy Bezanson and Aunt Eliza and Joe Malay who resided on Ruth Falls Road. There was a path through the Company lands that cut diagonally from my parents property to the Quillinan Property, it is labelled on Exhibit “A” as “Path to Grandmother Bezanson”.

44. During the summer months it was always enjoyable to go down to what we always referred to as the Boat House, on what is now the Disputed Lands, and just relax.

45. In the spring of the year we burnt some of the Company lands to promote the growth of blueberries on the eastern edge of the Company Lands around Campbell’s Brook. My mother and I would go picking them for her famous blueberry grunt.

46. From the time I was a child, up to when I bought the land, I, my extended family, and my wife Brenda, and our children would use what is now the McInnis Property, and in particular what is now the Disputed Lands as described above.

…

51. From 1980 – 1984, a Robert Vandekieft owned the Stone Property. Throughout those years I and my family were down and around the area of what is now the Disputed Land. I do not recall every meeting Mr. Vandekieft.

…

53. When Mr. Russel Sr. owned the Stone Property, there was a small wooden platform by the water. I believe that he put it there. People thought that it was mine. I often saw it when I went down to the water on the Disputed Land.

…

100. I had trees cut on the McInnis Property across from my home at 454 East River Road in 2003 – 2004, after I bought the property but before I retired. The road was cut ¾ of the way down to the East River along Campbell’s Brook across from my home. I hired a woodsman to cut out huge trees that had partially fallen and harvested the trees that were attacked by the spruce beetle infestation. I had huge fires to burn the dead trees and brush.

…

102. I had rocks landed by Hawes Construction in preparation for the Wharf construction. I had entered into an agreement with Transportation and Infrastructure Renewal for a guardrail replacement and culvert approval for the road off Ruth Falls to my wharf.

103. I was often on what is now the Disputed Land with my wife Brenda and we never saw a person on the property at any time. Mr. Russell and his

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family we saw a couple of times, but never on the McInnis Property. The Russell’s grass was rarely mowed, and after the property had been broken into I closed the door to keep the weather out.

104. It came to my attention in or about 2005 that Gary Russell was selling his property (now the Stone Property) as he had posted a store bought red and black for sale sign on the tree beside his driveway with a telephone number to call. Over time the telephone number became illegible.

105. The grass was seldom cut and there was no indication that the house was being used at all. I briefly considered buying it at that time.

…

115. In 2010 the Power Corporation had cut some tops off the trees, they were maintaining their easement, which runs through the McInnis Property just west of the Stone Property in the area of the Disputed Land. I gathered up and burnt the brush that fall.

…

142. After my discussions in July of 2011 with Mr. Stone, I posted “No Trespassing” signs by nailing them to trees on the McInnis Property. These trees were located west of the survey pins, marking the boundary between the McInnis Property and the Stone Property described in the above paragraphs. The “No Trespassing” signs that I posted were almost immediately removed. Some of the trees that had the signs on them were cut to the ground.

The dispute escalated between the parties. The applicant stated:

173. When we did go to the property just to go for a walk or sit in our chairs, Mr. Stone called the police and they would come to our home, no matter the time of day. I’ve been called down from my bed. We have been literally shut out of the McInnis Property virtually since the Stones moved in to the Stone Property and put their boat in the water in 2011.

…

183. In 2012 Stone virtually took over my property. Additional trees were cut. His boat was back in the water.

184. I would not go down to the water on the McInnis Property because I was afraid and felt my anxiety at the thought of him calling the RCMP again. This anxiety was shared by my wife Brenda, with whom I had previously enjoyed the property.

…

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204. All our plans to build a wharf, a road, boat house have been stopped. We’ve lost the last four years of boating, or relaxing in our chairs down by the river, or our evening walks in the privacy of our own property.

In response to the affidavit of Thelma Crowell, the applicant filed a rebuttal affidavit in which he stated:

7. There were no DFO offices “very near” to what is now the Stone Property.

8. Johnny Quillinan did not have a dock on the East River in the late 1970s. At that time there were some remnants of an old house (the “McKenzie House”) that had been built on the Riverside. These remnants were not on what is now the Disputed Property, they were further north along the river.

In response to the respondents’ assertion in their affidavits that he was not seen on the disputed property, the applicant stated:

19. In response to the various comments made to the effect that I have not been seen on the Disputed Land by the Stones, I say that I have not been on the land much since 2011 as the Stones have effectively taken it over. At times when I have gone on the Disputed Land, Mr. Stone has called the RCMP.

Stephen Rutledge filed an affidavit June 15, 2015. He retired from Kimberly-Clark in 2009 as the Vice-President of Woodlands. Prior to that he was Timberland’s manager for the company. He stated that he was familiar with the McInnis lands (including the disputed lands) and the present Stone property (PID 00581406). He attached a property online print-out as Schedule A to his affidavit. He noted the location of both these properties, as well as other properties including the Young property. His evidence as to the use of these lands is contained in the following paragraphs of his affidavit:

22. I am aware that this litigation involves a dispute regarding the boundary of, and title to, the waterfront land to the West of the Stone Property (variously referred to as the “Disputed Boundary” or the Disputed Land”). I have marked the Disputed Land with some shading on Exhibit A.

23. I have also marked the “Young Property” and the Winnifred (or Winnie) McInnis Property on Exhibit A.

24. The Company used to have a sluice on the McInnis Property to place logs in the water. I have marked the approximate location of the sluice with a line and labelled it “Sluice” on Exhibit A. The Sluice was used up until the 1960s.

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25. I understand the Company owned all the water access on the McInnis Property as the property was used to put logs into the East River.

26. I have no knowledge of anyone ever using the Disputed Land prior to Tom McInnis’ purchase of the McInnis Property, other than Diane Young.

27. Ms. Young asked the Company for permission to let her sheep roam over the McInnis Property and the Disputed land. The Company, through its area manager Sandy MacGregor gave her verbal permission to let her sheep roam the McInnis land, including the Disputed Land. I was advised of this permission by Sandy McGregor, and I do verily believe that it was given as he described. I am not aware of this permission ever being formally documented.

28. I have no knowledge of anyone making a claim for the Disputed Land prior to Tom McInnis’ purchase.

29. My familiarity with the McInnis Property and the Disputed Land pre-dates my employment with the Company. When I was growing up, I became familiar with the McInnis Property and the Disputed Land because I played baseball and pond hockey nearby.

30. As a kid, I understood that the McInnis Property and the Disputed Land belonged to the Company.

31. My friend and I were aware of the owners of the various properties in the area, largely because of John Quillinan. He owned the Stone Property at that time.

32. I had been told by the Malays, who owned Winnifred McInnis’s Property at that time, that trespassing on the Quillinan Property should be avoided. On that basis, I navigated that area with an eye to avoiding the Quillinan Property. Although I would sometimes drive my bike over what is now the McInnis Property, I took care not to cross onto the Quillinan Property.

33. The Quillinan Property did not visibly extend to the East River. It was bordered on its western edge by a rock wall and then woodlands which lay between the Quillinan Property’s lawn and the East River. The rock wall and the woodlands beyond were clearly visible to me when I was in the area as a kid.

Mr. Rutledge conducted a survey in July 1986 as a private job (not on behalf of the company) of the boundaries of the property of Winnifred McInnis, which was across Ruth Falls Road from the Stone property. Mr. Rutledge considered it his duty as an employee of the company to ensure that his survey would not negatively affect the company, as the Winnifred McInnis lot abutted a portion of the McInnis property on the north side of the Ruth Falls Road. As a result, he checked the western boundary of the Stone property. He located a survey pin and

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walked the boundary line between the Stone property and the McInnis property to the west of a rock wall which marked the western boundary of the Stone property. Mr. Rutledge made the following observations in his affidavit:

64. I walked from the North Western Boundary of the Young Property across the road onto the Company’s land, what is now the Disputed Land. I wanted to make sure that what I had found on the other side of the road was right.

65. I found a survey pin at the north western corner of the Quillinan Property (now the Stone Property). There was a rock wall along the boundary line. To the east of the rock wall was the Quillinan’ lawn. To the west of the rock wall, the woods went right to the river. I walked the boundary line, staying on the Company’s land to the west of the rock wall in the woods.

66. I have reviewed the survey prepared by Gary Parker, a copy of which is attached hereto as Exhibit C. For illustration purposes I have marked the North Western Boundary of the Young Property as “NW Bdy. Of Young Lands”. I have also placed “xs” to represent the rock wall that I saw on the North Western Boundary of the Quillinan Property (now the Stone Property) at the time of my 1986 survey.

67. The rock wall that I observed in 1986 was moss covered and low to the ground. However I could clearly see that it was a rock wall and that it marked the boundary between the Quillinan’s lawn and the woods to the West that lay between the Quillinan’s lawn and the East River.

68. I would not have walked along this area, or checked what is now the Disputed Boundary if I did not understand it to be Company land and if the Winnifred McInnis Property had not abutted on Company land.

69. There was no sign at the time of anyone trespassing on the Company’s land where the McInnis Property is located.

70. If I noticed any squatters or irregularities with the McInnis Property, I would have brought them to the attention of the Company, in accordance with my obligations to the Company.

Paul Handley is a certified survey technician and worked with Gary Parker and his company since 1977. In 2011 he assisted Mr. Parker to locate the survey markers that Mr. Parker had placed around the Vandekieft property (now Stone) in 1980. When he arrived at the property he observed:

26. When I arrived I walked the boundary of the Stone Property to locate the pins.

27. At the north western edge of the Stone Property that location, and the adjoining lands of Tom McInnis, were all rock and bush. The terrain was

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not level when I walked in that area. I specifically recall that there was a pile of rocks in the area of the north western corner of the Stone Property and the adjoining lands of Tom McInnis.

28. I located a stone wall in the area where the words “Stone Wall” are written.

29. The wall was about a foot high and about two feet wide. It was a dry stone wall with no mortar in it and the stones had a diameter of between 1 foot and 18 inches.

30. The wall was clearly visible to the naked eye. Although there were trees and bushes in the area, the wall itself was not overgrown and I had no difficulty seeing or finding it as I was walking along the western boundary of the Stone Property.

31. I was able to observe the terrain to the west of the boundary line marked by the two pins on the north and southern end of the western edge of the property. The brush in that area was fairly grown up. I did not see any paths from the western portion of the Stone Property to the East River: it was just bush.

Mr. Handley again attended the property in 2014. He observed:

32. I assisted Gary Parker with the instrument related work that was done on the property in September of 2014.

33. The north western portion of the Stone Property and the adjoining lands of Tom McInnis were different from what I saw in 2011.

34. The pile of rocks had been cleared away and the terrain had been levelled.

35. It looked to me like a machine had levelled the area. The rocks that I remember seeing there in 2011 were gone.

36. Part of the stone wall was also gone. While there were remnants of the stone wall, which are shown on the Survey Plan (the “Plan”) attached hereto as Exhibit “D”, the stone wall was definitely shorter in length than it had been in 2011.

Have the respondents met their burden of establishing a claim for adverse possession? As set out in Pettipas, supra, at para. 31, the claimaint’s burden is as follows:

…A claimant must prove that he had actual possession for the necessary period; and that his possession intended to, and did, exclude the true owner from possession (1280731 Ontario Inc. v. Lefebvre (2008), 69 R.P.R. (4th) 268, [2008] O.J. No. 1780 at para. 21 [Lefebvre]). A claimant must further show that his acts

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of possession were "open, notorious, peaceful, adverse, exclusive, actual and continuous".

Analysis:

Continuous possession

I am not persuaded that the respondents have established an uninterrupted, continuous 20 year period in which they and their predecessors in title possessed the disputed lands. It is also unclear from the respondents’ evidence when the alleged 20 year limitation period started. In Morrison v. Muise, 2010 NSSC 163, Edwards J. noted:

15 In order to trigger the operation of the Limitation of Actions Act, R.S.N.S. 1989, c. 258, the person claiming adverse possession must establish all of the elements of possession, as well as the commencement date for said acts. MacIntosh, in Nova Scotia Real Property Practice Manual, writes at page 7-7:

In order to succeed under the Statute, a party claiming a possessory interest must be able to establish a commencement date for his or her acts of physical possession, so that the limitation period may be computed. [emphasis by Edwards J.]

There is a lack of evidence to establish an uninterrupted, continuous 20 year period in which the respondents’ predecessors in title possessed the disputed property. There is no reliable or persuasive evidence of the required possession prior to the Vandekieft family between 1980 and 1982.

Mr. McInnis recalled as a young boy in the 1940’s and 1950’s that the lumber company harvested lumber on the McInnis lands. He testified that until sometime in the 1960’s the company used a sluice on the property, then built a reservoir between 1960 and 1963. He watched the construction of the reservoir and the machinery entertainment.

It must be remembered that Mr. Rutledge in his affidavit at para. 24 noted that the company had a sluice on the McInnis property, for placing logs in the water, which was used up until the 1960’s.

John Robert Vandekieft testified that the Stone property had not been lived in for some time when his parents purchased it and it required renovation. This represents a gap in the use and occupation of the Stone property prior to the1980 – 1982 period.

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There is no evidence to establish that Gary Russell Jr. used the lands continuously. He testified that as an Armed Forces member he left the province every three to four years for deployments at sea, for up to one year at a time, and there was no evidence led to show any occupation during his absence.

On this issue the respondents state in their post-trial submission:

39. The Applicant’s Post Hearing Submissions refers several times to Mr. Russell’s career in the Navy, and specifically, that every three-to-four years, he would be deployed for up to a year. This is not evidence that the use of the Disputed Property was not continuous. The requirement of continuity is circumstances-specific. Using a property as a cottage, and shutting it down for the winter, does not restrict the use from fitting the requirement of ‘continuous’. See Logan v Smith, (1984) 64 NSR (2d) 234 at para. 15:

…I also agree that seasonal occupation may be regarded as continuous and that the sufficiency of acts of possession must be judged according to the characteristic of the subject lands and with due regard for the uses for which they are suited. (Taylor v. Willigar et al (1979), 32 N.S.R. (2d) 11)…

Furthermore, there is no evidence that Mr. Russell’s family and friends did not still continue to use and enjoy the Stone Property and Disputed Property during the periods of time when he was deployed. Finally, we do not know when Mr. Russell joined the military, nor when he was first deployed.

With respect, it is for the respondents to lead evidence of the continued use and enjoyment of the disputed property during the times Mr. Russell was deployed. The respondents have failed to do so.

Mr. Russell, as quoted earlier in this decision, indicated that when he purchased a house in the city, the Stone property was used less and, in particular, that he would go there to open it up in the spring or shut it down in the fall, and then roughly every two weeks. He qualified this by saying that it would depend on whether he was sailing or not, which lends credibility to the applicant’s claim that there would have been a gap in use and occupation while Mr. Russell was on active duty. As I have said, Mr. Russell has led no evidence to indicate what transpired during that time, other than to suggest that he may have loaned it to a friend on occasion.

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Consistent with this apparent lack of use is the evidence provided by Mr. Rutledge in his affidavit. He stated at para. 26 that he had no knowledge of anyone using the disputed property prior to the applicant’s purchase, other than Diane Young. Further at para. 28 he testified he had no knowledge of anyone making a claim for the disputed lands prior to Mr. McInnis’s purchase. All of this is consistent with the lack of evidence of possessory title, and the lack of evidence that anyone ever claimed these lands other than the respondents. I accept the evidence of Mr. Rutledge. Mr. Rutledge is not related to either party and is very familiar with these lands. On cross-examination he was professional and answered questions in a forthright manner.

The applicant purchased the disputed land in 2003. Any potential claim for possession terminated at that time due to his purchase and use of the disputed land. As I have indicated, I am not persuaded that the respondents have established an uninterrupted, continuous 20 year period in which they and their predecessors in title possessed the disputed lands.

In the alternative, the applicant submits that if there was a 20 year period of occupation by the respondents’ predecessors in title, it was broken by entries by representatives of Kimberly-Clark. The applicant says that the limitation period for adverse possession is reset whenever employees or agents of the company entered these lands. I agree. In Spicer, supra, at para. 20, the court held:

…As well, possession by a trespasser of part is not possession of the whole. Every time the owner, or its employees or agents, stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession.

The applicant relies on the entry by two individuals, Stephen Rutledge, an employee of the Kimberly-Clark company, and Ernest C. Smith, an appraiser hired by Kimberly-Clark to appraise the McInnis lands.

In his affidavit Mr. Rutledge stated that, as a private job, he conducted a survey in June 1986 of the boundaries of the lands of Winnifred McInnis, across the road from the Stone property. Mr. Rutledge stated that it was part of his duty as an employee of the company to ensure that his survey would not negatively affect the company, as her lot abutted of the McInnis property. As a result, he entered the McInnis lands to check the western boundary of the Stone property. It must be remembered at the time the McInnis lands were owned by the lumber company.

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The applicant argues that Mr. Rutledge would not have been on the disputed land but for his duties to the company and, therefore his entry reset the limitation period, leaving only 17 years between Mr. Rutledge’s 1986 inspection of the boundary and the applicant’s purchase of the property. He submits that if an employee such as Mr. Rutledge enters onto his employers land to look for signs of trespass, his presence is an act of ownership by the employer.

Counsel for the respondents makes the following points in their post-trial submission on this issue:

41. With regard to the requirement of continuity, the Applicant has argued that entry onto the Disputed Property by Stephen Rutledge in 1986 reset the clock on the 20 year period (Applicant’s Post Trial Submission at para 203 – 213). This issue was addressed at length in the Respondents’ Pre-Trial Brief at paragraphs 45 – 49. In Bain v Nova Scotia (Attorney General), 2012 NSSC 355 [Bain], the Honourable Justice Murray held that an entry of a surveyor onto a property does not constitute an entry to break the possession of an occupier. Just because Mr. Rutledge may have entered onto the Disputed Property, this does not mean that the did so on behalf of the owner. As in Bain, even if he had, it would depend on the circumstances whether this would interrupt the possession of other persons.

42. On cross-examination, Mr. Rutledge confirmed that he attended the Disputed Property in his personal capacity as a land surveyor, and that he would not have been on the Disputed Property at that time if he had not been personally retained. Therefore, it is respectfully submitted that the attendance of Mr. Rutledge on the Disputed Property does not reset the 20 year time limitation.

The situation here is unlike Bain, supra. Mr. Rutledge was not surveying the disputed lands but the adjoining property, and he entered the McInnis lands to make sure he was not doing anything that would negatively affect the company which was his employer. Mr. Rutledge retired from Kimberly-Clark in 2009 as Vice-President of Woodlands. Prior to that he was Timberlands manager for the company and/or its successor companies. He testified that he considered it his duty as an employee of the company to ensure the survey work would not negatively affect the company.

I am satisfied the limitation period was reset on this entry in 1986. As a result, there is less than 20 years between the Vandekieft’s occupation between 1980 and 1982 and the entry in 1986. Furthermore, there is only approximately 17

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years from the Rutledge entry until the purchase by the applicant in 2003. The situation with Ernest C. Smith is similar to that in Bain, supra, and his entry would not reset the time period.

In summary, because of the entry by Mr. Rutledge, the respondents have not met their burden of proving a period of possession of at least 20 years. I would dismiss their claim on that basis.

Even if the respondents were able to prove a 20 year period of uninterrupted occupation, they would also be required to prove that their acts of possession were “open, visible, notorious and peaceful”. Were the acts of possession by the respondents and their predecessors in title open, visible, notorious and peaceful? In Spicer, supra, para. 23 the court explained:

…Although I do not agree with the appellant's contention that the discoverability rules adopted in contract and tort cases should apply to adverse possession matters, the common law already has a built-in safeguard in these cases in the requirement of proof of "open and notorious" possession. The nature of the required acts would generally bring them to the attention of a reasonably prudent owner. But the protection from undiscovered adverse claims lies in the nature of the required acts of adverse possession, not the so-called discoverability rule. In a case like this, where the lands consist of a vast wilderness not accessible by road, the date the limitation period begins to run may not coincide with the time of the entry by the squatters. Although the cabin was apparently known to other trespassers before 1981, it was not visible from the lake or in aerial photographs. It was when the road was built in 1981 that it became plainly open and notorious. I question whether there was proof by the claimants, by cogent evidence, that the appellants ought to have known of their entry on its land as early as 1975…

This is not a case where fences have been erected and where the acts of possession were evident. Rather it appears that the entries on the disputed lands were random and in no particular area. The acts of possession relied upon by the respondents, include fishing, swimming, walking over the property and placing a dock by the water’s edge. The question is, did the acts fall below the standard that would bring them to the attention of the company, that being a large forestry company owning vast stretches of land?

Mr. Rutledge visited the disputed boundary along the rock wall in 1986. His evidence was that there were no signs of trespass or use of the land at that time. He stated in his affidavit:

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69. There was no sign at the time of anyone trespassing on the Company’s land where the McInnis Property is located.

70. If I noticed any squatters or irregularities with the McInnis Property, I would have brought them to the attention of the Company, in accordance with my obligations to the Company.

The applicant indicated that he walked the property frequently over the years and did not observe acts of possession prior to the Stones’ purchase of their property in 2010. He said at para. 103 of his affidavit:

103. I was often on what is now the Disputed Land with my wife Brenda and we never saw a person on the property at any time. Mr. Russell and his family we saw a couple of times, but never on the McInnis Property. The Russell’s grass was rarely mowed, and after the property had been broken into I closed the door to keep the weather out.

I note that when Mr. Russell attempted to buy the disputed property, he did not make any allegation of use of the property either by himself or his father.

I am not satisfied that the respondents have established that the acts of occupation were open, visible and notorious. As a result, their claim would also fail on this basis.

Moving to the next issue, have the respondents proved that their alleged possession was exclusive against the true owner and the trespassers? In Morrison, supra, the following comments on exclusivity were made:

29 The degree of possession is also critical. An adverse possessor must exercise exclusive possession as against the true owner as well as other trespassers. In Anger and Honsberger Real Property (3rd ed., 2009) the authors explain at page 29-12:

To establish the quality of possession required by the statute, an adverse possessor must show that they have actual possession and the intention of excluding the owner from possession and that they have effectively excluded the true owner from possession.

The respondents submit that they and their predecessors made various uses of the disputed property including walking on and clearing the trails on the property, crossing it to reach the East River, having bonfires on it and cutting trees. They point out that Mr. Russell testified that he cleared trees from the property, had bonfires and generally used it as his own.

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The applicant provides the following evidentiary basis for his claim that there was no exclusive possession by the respondents and their predecessors:

i. the evidence of Thelma Crowell is that during the alleged use of the disputed lands by John Quillinan she “often observed children from the area and their friends fishing from Johhny Quillinan’s dock”;

ii. the evidence of Mr. Stone is that in the 1970’s he played around the property and swam in the water off the Stone property, as well as fishing off a dock that was there at the time. These activities would have been undertaken on the disputed lands;

iii. the applicant himself gave evidence that he and his friends used the disputed lands, particularly what he referred to as the boathouse land, in the 1970’s, 1980’s and 1990’s. Mr. Russell’s evidence supported Mr. McInnis’ testimony by indicating that he saw Mr. McInnis on the disputed land frequently; and

iv. finally, the evidence does not establish that the use by the respondents’ predecessors was sufficient to exclude the company. Both Mr. Rutledge and Mr. Smith entered the land without being excluded in any way by the alleged occupation of the Stone’s predecessors in title.

I agree with the applicant that the acts of possession relied upon by the respondents were not exclusive of other trespassers or the company, the true owner.

The disputed lands are situated in a remote, rural, area of the province. The evidence is that many people used the disputed lands, including neighbourhood children. None of these individuals would have sufficient possession to claim these lands. Should such random acts of entry result in a possessory claim, then rural residents would be well advised to fence their lands and permit no access.

In summary:

i. the respondents have not established an uninterrupted, continuous and defined 20 year period in which their predecessors in title possessed the disputed property;

ii. the respondents failed to prove that the alleged acts of possession by their predecessors were open, visible, notorious and peaceful; and

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iii. the respondents have not proved that their possession was exclusive against the true owner and trespassers.

For these reasons the respondents’ claim for possessory title is dismissed.

Issue #3 In the alternative, have the respondents met the requirements for an easement by the doctrine of lost modern grant?

In the alternative, the respondents claim an easement over the disputed property by way of the doctrine of lost modern grant. They say that they and their predecessors in title have used the disputed property for recreational purposes, including walking over the property, crossing it to reach the East River, having bonfires on it and cutting trees. They claim an easement for these uses.

A good summary of the law was set out by Murphy J. in Balser v. Wiles, 2013 NSSC 278:

9 Charles Macintosh's The Nova Scotia Real Property Practice Manual, loose-leaf, (Markham: LexisNexis Canada Inc., 1988-2013) defines an easement as follows at p.13-51:

An easement is a right one landowner has to utilize land belonging to another and imposes a burden on that land for the benefit of the owner of the land to which the easement is attached.

10 The four essential characteristics of an easement are set out in Anne Warner La Forest, Anger and Honsberger: The Law of Real Property, loose-leaf, 3rd Edition (Toronto: Canada Law Book Ontario, 2012) at p.17-3:

(a) There must be a dominant and a servient tenement;

(b) An easement must accommodate the dominant tenement;

(c) The dominant and servient owners must be different persons; and

(d) A right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

11 An easement can be established through long-time use and enjoyment by one of two means. The first is by the operation of s.32 of the Limitation of Actions Act, R.S.N.S. (1989) c.258:

No claim which may be lawfully made at the common law by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, over or from any land or water of our Lady the Queen, her heirs or successors, or being the property of any ecclesiastical or lay person, or body

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corporate, when such way or other matter as herein last before mentioned has been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated and where such way or other matter as herein last before mentioned has been so enjoyed as aforesaid for the full period of twenty-five years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly given, or made for that purpose by deed or writing. R.S., c. 258, s. 32; 2001, c. 6, s. 115.

12 The other method for establishing an easement based on use and enjoyment is by application of the doctrine of lost modern grant. The Nova Scotia Real Property Practice Manual, supra, describes the doctrine of lost modern grant at p.13-95:

The doctrine of modern lost grant is a judge-created theory which presumes that if actual enjoyment has been shown for 20 years, an actual grant has been made when the enjoyment began, but the deed granting the easement has since been lost. However, the presumption may be rebutted.

The doctrine predates and is an alternative to a finding that a right has arisen by prescription. The doctrine is based upon usage, not a real grant.

13 The requirements for establishing an easement under the limitations statute or the doctrine of lost modern grant are the same. In Mason v. Partridge, 2005 NSCA 144, at para.18, the Nova Scotia Court of Appeal adopted the following passage from the Ontario Court of Appeal's decision in Henderson v. Volk, (1982) 35 O.R. (2d) 379:

14. It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20-year period immediately preceding the bringing of an action.

14 The claimant must also establish that the use was made without violence, secrecy or evasion, and without consent or permission of the servient owner: Mason v. Partridge, supra, at paras.19-22.

15 In view of the serious consequences for the servient property owner, a prescriptive easement will be found only where there is clear evidence of both continuous use and acquiescence in such use by the owner of the servient property: Henderson v. Volk, supra, at para.21.

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The respondents say they, the Vandekiefts and Russells have all provided evidence that they travelled from the Stone property to the East River over the disputed lands. In their post-trial submissions the respondents say that the use of the easement by the Stones and their predecessors in title need not meet the threshold of exclusivity and adversity as the dominant landowners had colour of title. With respect, in the absence of colour of right, the Stones and their predecessors must meet the threshold of exclusivity and adversity.

The applicant set out several arguments in support of his position that the respondents have not established an easement by lost modern grant. These arguments can be summarized as follows:

i. there was no easement being used and enjoyed at the time of migration and, therefore, the respondents cannot make a claim under the doctrine of lost modern grant pursuant to the terms of the Land Registration Act;

ii. the respondents have not proven a claim for an easement by prescription or lost modern grant;

iii. the evidence does not establish that the easement sought by the respondents existed over the disputed property to the river;

iv. the Capital T Trail is not an easement for the respondents’ property;

v. the easement claimed by the respondents was not used open and notoriously, adversely and continuously by their predecessors in title for 20 years; and

vi. the easement claimed by the respondents was not used as of right.

Analysis

The respondents must establish use of the alleged easement, openly, notoriously and adversely for 20 years. The have failed to persuade me that an easement exists under the doctrine of lost modern grant.

Firstly, the respondents have failed to establish that the easement sought existed over the disputed property to the river. It appears from the evidence that the bank between the Stone property and the disputed lands was heavily wooded until the respondents began cutting trees. For example, at paras. 111 and 112 of the Thomas J. McInnis, affidavit filed October 3, 2014, Mr. McInnis stated:

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The Secluded Nature of the Disputed Land

111. The portion of the Disputed Land accessing the water, from the Stone’s Property was heavily wooded and screened. Practically, this meant that when my wife and I sat at the water’s edge we could not be seen by the Russells or anyone else on the Stone Property.

112. A true copy of a photograph looking up from the water’s edge is attached hereto as Exhibit “Q”. The boundary line is approximately near the top of the picture where the hard woods stand. This photograph was taken on or about August 11, 2011.

A review of the photograph at Exhibit Q reveals no sign of a path or trail, but rather dense woods. The photo was taken on or about August 11, 2011.

The difficulty with the respondents’ position is that there is no clear evidence of a path which is found in many of these type cases. In fact, in this case, the evidence is to the contrary. Paul Handley in his affidavit filed October 3, 2014 commented that when he attended the property in 2011:

31. I was able to observe the terrain to the west of the boundary line marked by the two pins on the north and southern end of the western edge of the property. The brush in that area was fairly grown up. I did not see any paths from the western portion of the Stone Property to the East River: it was just brush.

It is clear from the evidence that it was only after Mr. Stone began asserting a claim to the disputed land that the path through the brush began to be beaten down. I conclude that there is no evidence that there was a visible path or trail on the ground at the relevant time. It is more likely that the Capital T Trail was used by the respondents and their predecessors and other residents of the area, including the applicant, to reach the boathouse lands. This trail does not lead from the Stone property, and therefore is not an easement for the Stone property.

At para. 330 of their post-trial submission the applicant’s counsel makes reference to the following evidence to support his claim that no easement existed:

(a) Mr. McInnis has used the Trail for many, many years. He and his family have maintained it since the 1980’s. He has never seen anyone else maintain the Trail.

(b) Mr. Russell accessed the water via an old road, which is mostly west of the Trail. This usage occurred in the 1984 – 2003 period, after which time any use was with Mr. McInnis’ permission (until that permission was withdrawn in 2010).

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Exhibit 3, Blue Marked “Road” Direct Evidence of Gary Russell, October 28, 2015 at approximately 10:15

Affidavit of Thomas McInnis, filed October 3, 2014, paras. 91, 113 – 114, Exhibit S

(c) Mr. Russell Jr. was away every 3 – 4 years for up to one year while he was deployed on ship with the navy. There is no evidence of what, if any, mode of access was used as a right of way in his absence from the country.

Cross Examination of Gary Russell, October 28, 2015 at approximately 11:55 – 11:56

(d) While there are photographs of the Vandekiefts using the Disputed Property and the Trail, the photographs appear to have been taken on the same day, as the woman in the photographs appears to be the same person, in the same outfit, in the same general weather conditions.

Affidavit of Walter Vandekieft filed December 19, 2014 at Exhibit 1

(e) The affidavits of Robert Vanedekieft and Walter Vandekieft offer no facts explaining the route and mode of access used by the Vandkieft family to access the water. This evidence falls short of being the clear and cogent evidence required to define a prescriptive right.

(f) In the absence of these details, the Applicant submits that the Court should not conclude that the Vandekiefts and the Russells used the same right of way, such that the Stones’ predecessors in title continuously used a right of way for twenty years.

(g) A right of way is limited in scope to its historic use. The Stones cannot “add up” a number of different routes to access used individually for less than twenty years to create a single right of way.

(h) The Vandekieft Affidavits indicate that the property had not been lived in at the time it was purchased by the Vandekieft family. Therefore, there was no continuity of use of any alleged right of way between the Vandeiefts and their predecessors in title.

(i) The Affidavit of Thelma Crowell has been challenged by the Rebutal Affidavit of Mr. McInnis. Mr. McInnis’ response to Mr. Crowell’s evidence was not challenged in cross examination

(j) In any case, Ms. Crowell’s affidavit offers no evidence on the location or scope of any right of way. A general assertion of “use” of the property, without more, should not be sufficient evidence to establish a right of way by prescription. A right of way must have a clearly defined scope.

The fact that there is no visible, physical evidence of an easement, leads me to conclude that no easement exists or ever existed. The respondents have failed to meet their burden.

As I have stated earlier, this appears to be a situation found in many rural areas of Nova Scotia. That is, persons in the community, adjoining owners,

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frequently enter or traverse neighbouring properties without hindrance. To then bring forth a prescriptive claim based on these types of entries would result in numerous claims for title. The burden on persons such as the respondents and their predecessors is to bring forth evidence to support their position. In this case they have failed to do so.

I take comfort in this conclusion from actions of Mr. Russell and the respondents that are consistent with the non-existence of an easement:

Mr. Russell listed the Stone property on Kijiji using a property online map that did not include any water access. Likewise there was no reference to a right-of-way to the water.

Mr. Russell listed the Stone property with the real estate agent Neuer without water access.

Mr. Russell described the Stone property without an easement to the river on the property condition disclosure statement.

Mr. Russell’s agent, Ms. Neuer, represented to the Stones on Mr. Russell’s behalf that they had no right to cross the McInnis property to the water.

Mr. Russell tried to purchase the disputed lands from the company.

The respondents tried to purchase the lands from the applicant.

I dismiss the respondents’ claim for an easement based on lost modern grant over the applicant’s property. I am not satisfied that they have met the burden of establishing such an easement.

Issue #4 Has the applicant established his claim for trespass and negligence?

The applicant says the respondents have interfered with his possession of the land and are, therefore, liable in damages in trespass. The elements of trespass were reviewed in MacQueen v. Sydney Steel Corp., 2013 NSCA 143:

88 The trial decision in Smith v. Inco Ltd., 2010 ONSC 3790, supplies a useful summary of the trespass -- nuisance distinction, emphasizing the need for directness in the former:

[37] The essential characteristics of a trespass to land are concisely set out in Grace v. Fort Erie (Town), [2003] O.J. No. 3475 (S.C.J.) at para. 86, and in R. &

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G. Realty Management Inc. v. Toronto (City), [2005] O.J. No. 6093 (S.C.J.) at para. 40, as follows:

1. Any direct and physical intrusion onto land that is in the possession of the plaintiff;

2. The defendant's act need not be intentional, but it must be voluntary;

3. Trespass is actionable without proof of damage; and

4. While some form of physical entry onto, or contact with, the plaintiff's land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto, the plaintiff's land.

There is no dispute that the applicant owns the McInnis property, including the the disputed lands, subject to any issues arising from a survey. This was confirmed in the affidavits of legal counsel for the applicant, Mr. Berryman, and legal counsel for the respondents, Mr. Brennan. Also the Parker survey clearly establishes the boundary between the McInnis property and the Stone property since at least 1980.

The applicant has set out their position on this issue in his post-trial brief:

345. The Applicant further submits that there has been a direct inference with Mr. Mcinnis’ possession of the Disputed Land:

The Stones have admitted to using the property, treating Mr. McInnis as a trespasser, altering the topography of the land by cutting trees, removing stumps, and filling holes; and

The photographic evidence reveals a significant change in the nature and quality of the land after the Stones began using it. A comparison of Exhibits PP and QQ show a substantial clearing of the Disputed Land by the Stones.

Affidavit of Thomas J. McInnis filed October 3, 2014 at Exhibits PP and QQ

346. Similarly, the comparison of Exhibit CC and in particular photograph one, with Exhibits II and in particular the bottom photograph on the page numbered “245”, shows a significant alteration in the nature of the Disputed Land. Trees have been cut down.

347. The Stones have cut trees, levelled the underbrush, removed or caused the removal of a survey marker, constructed a fire pit on the Disputed Land, used the fire pit on Disputed Land, used the Disputed Land, moored a boat on the Disputed Land, and have attempted to use the criminal justice system to keep Mr. McInnis of his own property.

348. The Applicant submits that there are acts of trespass.

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The respondents made no submission on this issue.

I am satisfied that the respondents have interfered with the applicant’s possession of the disputed lands and are liable, therefore, in damages. The evidence is overwhelming of the acts of interference by the respondents.

Issue #5 Is the applicant entitled to general damages, special damages and/or punitive damages?

The applicant referred the court to Patterson v. Municipal Contracting Ltd. (1989), 98 N.S.R. (2d) 259, 1989 CarswellNS 108, where the court commented on the awarding of damages in a trespass case at para. 35:

The overriding consideration in trespass cases is that the Plaintiff should as nearly as possible be placed in the same position as before the trespass and generally this is considered done if the Plaintiff is paid the amount of the diminution of the value of the property caused by the trespass. However, there are cases where it is reasonable in order to fairly compensate the Plaintiff to make an award based on a consideration of the cost of reinstatement or replacement even though such an award may exceed the diminution of the value of the property caused by the trespass.

The applicant has provided evidence of his loss of privacy due to the actions of the respondents. Prior to the respondents’ actions on the disputed property, Mr. McInnis says, the boathouse area was not visible from the Stone property, but now it is. As a result he seeks damages to cover the costs of constructing a fence. He obtained three estimates from fence companies which are set out in the affidavits on file from Derek Horne, Peter deBellefeuille and Robert MacDonald.

The applicant seeks the sum of $11,420.69, which is the mid-range of the fence estimates. He also seeks HST for a total claim of $13,133.79. He also seeks the amount of his permit fee for the construction of the wharf in the amount of $65.70.

I am not prepared to make an award of damages under this heading. As the respondents argue, there is no evidence that more than two trees were cut down.

The applicant provided several pictures of trees cut down at Tab II of his affidavit. During cross-examination it became apparent that these photos showed only two trees.

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There is no clear evidence that the respondents caused the loss of privacy. Although one could infer that the respondents were responsible, the objective evidence overall does not support that conclusion. Both Mr. Russell and Mr. McInnis cut trees on the property. Ms. Neuer confirmed on cross-examination that on the listing documents the Stone property was listed as having a river view. Finally there was evidence that trees fell on the property or were damaged as a result of Hurricane Juan and the spruce beetle.

For all of these reasons I decline to award special damages against the respondents.

General Damages

The applicant seeks $5,000 in general damages for the loss of use and enjoyment of the land.

The respondents have not provided any submission in opposition to this claim.

As to his loss of use and enjoyment of the land the applicant states in his affidavit:

2012

183. In 2012 Stone virtually took over my property. Additional trees were cut. His boat was put back in the water.

184. I would not go down to the water on the McInnis Property because I was afraid and felt anxiety at the thought of him calling the RCMP again. This anxiety was shared by my wife Brenda, with whom I had previously enjoyed the property.

185. Hearing the power saw going, seeing smoke from his fires were visible and audible reminders of what we had lost.

186. My plans for a wharf were discontinued.

187. So another year passed without me having access to the land I purchased

This is but one example of how the respondents interfered with the applicant’s use and enjoyment of his lands. This interference started shortly after the respondents purchased their property and continued throughout 2013. The applicant’s affidavit sets out many of the acts of interference carried out by the respondents. I accept his evidence on this issue.

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I award the sum of $1500 for loss of enjoyment of the land.

Punitive Damages

The applicant seeks punitive damages in the amount of $5,000.

Counsel for the respondents have not provided any submission on punitive damages other than to state “it is further submitted that the applicant has failed to prove that either general or punitive damages are warranted in this case”.

In his pre-trial submission counsel for the applicant refers to authorities which support the proposition where a property owner is treated in a high-handed manner, an award of punitive damages is appropriate:

237. In Hendricks the Court of Appeal upheld an award of punitive damages in the amount of $3,000. The Court of Appeal’s reasoning on this point is as follows:

21 The trial judge's award of punitive damages is also attacked on appeal. In this regard, the trial judge said:

...Brennan acknowledged that he had an oral agreement with Hendricks not to do anything further on the disputed property until this litigation was resolved. In spite of that agreement, Brennan proceeded in a surreptitious manner to construct a very substantial road on the disputed property. ... Brennan's action is inexcusable and reprehensible. It is precisely the type of outrageous conduct which ought to trigger consideration of a punitive damage award. The construction of the road was an arbitrary and wilful disregard of the plaintiff's rights. It was also an indication of Brennan's disdain for the legal process.

…

23 In my view, the trial judge did not misdirect himself on the applicable law, nor does his decision give rise to an injustice. On the evidence at trial, punitive damages in this case serve a rational purpose, particularly having regard to the modest award of compensatory damages. I would not interfere with the trial judge's decision respecting punitive damages.

238. More recently, the Ontario Court of Appeal upheld an award of $5,000 for the punitive damages in Cantera. The trial judge’s reason on this point was upheld in a brief decision dismissing the appeal. The trial judge held as follows:

65 The claim for punitive damages in the amount of $5,000 is made out on the facts of this case. As I have discussed above, the defendants acted

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knowingly, deliberately and willfully. While they clearly did not accept the plaintiff's assertions that she had adverse possession, they knew that the plaintiff and Mr. Sdao were making these claims long before April 10, 2004. The fact that Mr. Wright may have had an "honest" belief that the claim of adverse possession was ill-founded does not in any way mitigate his conduct. Nor does his feeling that the plaintiff and Mr. Sdao were trying to bring undue pressure on him to sign a quit claim at that point. In removing the fence, he chose to bear the risk that his conduct was unlawful. In short, the defendants have acted in a high-handed and arrogant fashion and their conduct justifies an award of punitive damages: see Furgal v. Angel, supra, Saly Estate v. Flabiano, supra, Glashutter v. Bell, supra.

The applicant says the respondents have attempted a land grab.

The waterfront was important to the Stones. Mrs. Stone stated at para. 12 of her affidavit that:

12. Owning to the river was important to us as we own a boat, we both fish, and we have children who would want to swim in the river.

The respondents purchased their property in February 2011. Martina Neuer was the real estate agent who sold the property to the respondents on behalf of the Russells. The listing document for this property made clear that there was no water access. Ms. Neuer originally showed the respondents the property in 2010. She gave them a copy of the online property map found at Exhibit C of her affidavit filed April 12, 2015. It is clear from a review of this document that it does not include the disputed lands. Further Ms. Neuer made the following remarks about her discussions with the respondents:

31. I recall telling Mr. and Mrs. Stone that the waterfront was not included in the Property.

32. I told Mr. Stone that he did not have access to the water, because the property that borders on the water (what is now the Disputed Land) belonged to Tom McInnis.

In the spring of 2011 the respondents attempted to buy the waterfront lands from the applicant. The applicant refused.

Mr. Stone met with the applicant in July 2011 and asserted he had the right to cross the McInnis property based on a book titled “Our Coast, the 2009 State of

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Nova Scotia’s Coast Technical Report”. The applicant rightly advised Mr. Stone he had no such right.

In his affidavit of November 28, 2014 at para. 29, Mr. Stone gave the following evidence as to his interaction with the applicant in July 2011:

28. On July 23, 2011, I went to Mr. McInnis’s house with a bottle of wine for him to attempt to come to an agreement regarding the Disputed Property. At first, we had a neighbourly conversation and Mr. McInnis told me about the families living in the area. I told him that I was there to discuss the Disputed Property. Mr. McInnis continued to say he owned the Disputed Property.

29. I took the position with Mr. McInnis that he could not stop me from using the river, as it is tidal and notwithstanding any dispute over the Disputed Property, nobody had private ownership below the ordinary high water mark. …

The applicant wrote Mr. Stone after this meeting, in a July 24, 2011, letter and correctly, in my opinion, told Mr. Stone that he had no right to trespass over his property. This letter is at Exhibit X of the Thomas J. McInnis affidavit filed October 3, 2014. In response as Mr. Stone described in his affidavit, he wrote back:

32. On July 26, 2011, I wrote to Mr. McInnis, again stating that the waterway in front of the disputed property was public as I intended to moor my boat there. I asked Mr. McInnis to ensure that his “No trespassing” signs were not posted on the Stone Property.

The applicant posted “no trespassing” signs. These signs were removed and trees were cut down. At para.142 of his affidavit Mr. McInnis stated:

142. After my discussions in July 2011 with Mr. Stone, I posted “No Trespassing” signs by nailing them to trees on the McInnis Property. These trees were located west of the survey pins, making the boundary between the McInnis Property and the Stone Property described above in paragraphs. The “No Trespassing” signs that I posted were almost immediately removed. Some of the trees that had the signs on them were cut to the ground.

The land grab by the respondents escalated. They began a series of actions to claim the land.

When the applicant and his spouse entered their property Mr. Stone would call the police. He did so on numerous occasions; even on one occasion when the applicant was there with his legal counsel. In his affidavit the applicant stated:

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173. When we did go to the property just to go for a walk or sit in our chairs, Mr. Stone called the police and they would come to our home, no matter the time of day. I’ve been called down from my bed. We have been literally shut out of the McInnis Property virtually since the Stones moved in to the Stone Property and put their boat in the water in 2011.

The respondents put a fire pit on the disputed land and excavated and graded from the Stone property beyond the western boundary line and onto the McInnis property.

The applicant testified that in 2012 the respondents virtually took over his property. Despite being advised at the time of purchase that the disputed lands were not part of their property, despite the Parker survey and advice from the applicant that they had no interest in the disputed lands, the intrusions continued by the respondents. The respondents’ intentions were clear. In his affidavit, Mr. McInnis stated:

193. On one occasion in 2013 on a Saturday afternoon, I saw Mr. Stone at the fire pit that he had constructed in the recently leveled and now Disputed Lands. Mr. Stone looked at me and smiled and “Tom, I am going right to the bottom” and waved to the water.

I find the actions of the respondents to have been calculated, malicious, inexcusable and a departure from a standard of decent behaviour. Their actions virtually robbed the applicant of the use and enjoyment of his property from at least 2012. He was literally forced off the land he bought, surveyed and registered under the LRA.

I award the sum of $3500 for punitive damages.

Issue # 6 Is the applicant entitled to an injunction?

The applicant submits this is an appropriate case for an injunction. The respondents have not made any submission on this issue. I am not prepared to issue an injunction at this time. The applicant can make application for an injunction at a later date should the need arise.

Summary

In summary:

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i. the respondents’ claim for adverse possession is dismissed;

ii. the respondents’ claim for an easement based on lost modern grant is dismissed;

iii. the applicant’s claim for trespass is granted;

iv. a declaration shall issue declaring the boundaries of the Stone property to be the Parker survey; and

v. the following damages are awarded:

a. General damages for loss of use and enjoyment of the property in the amount of $1500.

b. Punitive damages of $3500.

c. Costs and disbursements to the applicant to be agreed by the parties or assessed by the court.

Pickup, J.