Koziey Estate (Re), 2017 ABQB 597

Court of Queen’s Bench of Alberta Citation: Koziey Estate (Re), 2017 ABQB 597 Date: 20171006 Docket: 1503 13463 Registry: Edmonton Between: Christopher Koziey as Personal Representative of the Estate of Paul Walter Koziey Applicant/Cross-Respondent - and – Larry Brian Taylor Respondent/Cross-Applicant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A.

Sulyma _______________________________________________________ I Introduction [ 1 ] The Applicant, Christopher Koziey (Koziey) as Personal Representative of the Estate of Paul Walter Koziey, applies for judgment quieting title pursuant to s. 74 of the Land Titles Act , RSA 2000, c L-4 based on adverse possession of neighbouring land. [ 2 ] The Cross-Applicant, Larry Taylor, owner of the neighbouring land, seeks a permanent injunction enjoining the Applicant and subsequent owners of the Applicant’s land, as well as their tenants and invitees, from using Taylor’s land to access or leave the Applicant’s land.

II Evidence

A Undisputed Facts [ 3 ] The Estate of Paul Koziey owns land located in Parkland County (Koziey Land) legally described as: MERIDIAN 5 RANGE 1 TOWNSHIP 50

SECTION 32 QUARTER SOUTH EAST EXCEPTING THEREOUT ALL MINES AND MINERALS AREA: 64.7 HECTARES (160 ACRES) MORE OR LESS. [ 4 ] Paul Koziey owned and lived upon the Koziey Land from July 27, 1973 until his death on December 27, 2014. The Koziey Land continues to be occupied by tenants in two houses and a cabin. [ 5 ] Taylor resides on a farm on the northwest quarter of

Section 32, Township 50, Range 1, West of the 5 th which he bought in 1988. [ 6 ] In 1991, Taylor purchased land (Neighbouring Land) described as: THE NORTH EAST QUARTER OF

SECTION THIRTY TWO

(32) TOWNSHIP FIFTY

(50) RANGE ONE

(1) WEST OF THE FIFTH MERIDIAN CONTAINING 64.7 HECTARES (160 ACRES) MORE OR LESS EXCEPTING THEREOUT: 0.42 HECTARES MORE OR LESS AS SHOWN ON ROAD PLAN 792 2348. [ 7 ] Taylor continues to use the Neighbouring Land. [ 8 ] The Koziey Land is contiguous to, and immediately south of, the Neighbouring Land. [ 9 ] A road (Road) used to access the Koziey Land crosses through a portion of the Neighbouring Land in order to circumvent a ravine located on the Koziey Land. The ravine immediately to the south of the Road is quite deep with elevations from the Road dropping by 22 metres.

In 1992, Taylor erected a fence following the north side of the Road. The fence is located partially on the Neighbouring Land and partially on the Koziey Land. [ 10 ] Paul Koziey died in 2014.

On March 11, 2015, Taylor advised the Koziey Estate through his lawyer that he intended to relocate his fence which would cut off access to the Koziey Land by way of the Road. [ 11 ] On October 29, 2015, Anderson J. adjourned the matter to Special Chambers and prohibited Taylor from blocking or preventing Koziey, his tenants or guests from using the Road until further order or agreement by the parties. [ 12 ] Koziey seeks to quiet the portion of the Neighbouring Land delineated by the Road. The area in question amounts to 0.79 acre (0.318 hectares).

B Christopher Koziey [ 13 ] Koziey deposed that the Road provided access to the original homestead on the Koziey Land, it has been in continual use for over 100 years, and it is reasonably necessary for the use and enjoyment of the Koziey Land. He deposed that Paul Koziey and his invitees have continuously used the Road to the exclusion of others since Paul Koziey purchased the Koziey Land. [ 14 ] The Road is the only way to access the houses on the Koziey Land. It is used daily by up to four people to access the houses and outbuildings located on the Koziey Land.

Surviving family members of Paul Koziey continue visiting the Koziey Land. [ 15 ] Paul Koziey maintained the Road by adding gravel to it as needed and replacing the culvert at the creek crossing. He hired people to clear the snow. [ 16 ] Koziey obtained a Real Property Report on April 9, 2015 following a letter from Taylor’s lawyer stating that the Road was located partially on the Neighbouring Land. He deposed that the letter was the first notice he had that the Road crossed a portion of the Neighbouring Land. He believed that the fence Taylor built along the Road followed the property line.

Prior to Taylor purchasing the Neighbouring Land, there was an older fence that followed a similar path. [ 17 ] Koziey deposed that Paul Koziey never suggested to him that the Road might encroach on the Neighbouring Land. Paul Koziey never told him about any conversation with Taylor about moving or straightening the Road, nor that the Road crossed the Neighbouring Land or that the Kozieys needed to build a new road. Paul Koziey never discussed the Road with Koziey, nor to his

knowledge, with Koziey’s sisters. [ 18 ] Koziey obtained three quotes for building an alternate road on the Koziey Land: $43,000, $80,700 and $100,000+. Koziey attached to his first Affidavit a tentative plan showing a proposed subdivision. C Larry Taylor [ 19 ] Prior to Paul Koziey’s purchase of the Koziey Land in 1973, Taylor’s family rented it for pasturing cattle. During that time, Taylor helped install a creek crossing on the Road. In Questioning, Taylor admitted that he never did anything to the Road after his family stopped renting the Koziey Land in 1973. [ 20 ] Taylor deposed that the Road existed prior to his purchase of his quarter

section in 1991. When he cleared the brush and surveyed his land in 1992, he knew that the Road entered onto part of his land across his property line. He built the fence in 1992 to follow the north side of the Road, including the part of the Road on the Neighbouring Land, rather than follow the property line between the Neighbouring Land and the Koziey Land. He built the fence around the Road so as not to interfere with Paul Koziey’s tenants’ access to the Koziey Land. Taylor’s fence also meanders onto the Koziey Land due to topography.

Although he wanted to put the fence on the property line, this was the convenient way to put it in. Taylor’s fence replaced an existing fence along the north side of the Road. [ 21 ] Taylor deposed that he did not want to block his neighbour’s access and therefore did not insist that the Road be moved by any particular date. Taylor stated in Questioning that he told Paul Koziey around 1992 when he was building the fence: “And I said, now, you’ll have to, you know, straighten your road out, whatever” and “I want you to move your road” and “I ain’t going to block you off. Like, I ain’t going to lock you out”.

Taylor stated that he believed that Dieter Frundt, who was helping Taylor build the fence, had also talked to Paul Koziey about “moving” the Road. When one of Koziey’s tenants expressed concern about access, Taylor said: “[N]ot to worry. I wouldn’t be that way and lock you off your property”. Taylor said that he told Paul Koziey: “I’m not going to lock you out, but I want you to move this road onto your own side. And [Paul] said he would get to it, or get it done eventually so...

But I would – I didn’t press him on a timeframe ...” After 1992, no further discussions about the Road took place between them despite seeing each other two to three times per year. Taylor did not press Paul Koziey to build a new road. Taylor said he thought he had spoken to Dieter Frundt about the agreement once or twice. [ 22 ] Taylor never took steps to maintain the Road.

He was aware that Paul Koziey added gravel, and acknowledged in Questioning that Paul may have taken other steps to maintain the Road unbeknownst to Taylor. [ 23 ] Taylor engaged a lawyer to send a letter to the Koziey Estate on March 11, 2015. Taylor stated under questioning that he hoped that Paul Koziey would do something with the Road before his passing. When Paul Koziey died, Taylor realized he had to deal with it. [ 24 ] Taylor obtained quotes for building an alternate road on the Koziey Land: $27,500 (provided by Taylor’s long-time friend), $66,000 and $185,000.

These quotes do not include any work in relation to gas and telephone lines which would probably have to be moved. The quotes for $27,500 and $185,000 were provided in writing in October 2015. [ 25 ] Certificates of lis pendens (CLPs) were registered against Taylor’s lands on March 12, 2004 by his wife, Sandra, under the Matrimonial Property Act , RSA 2000, c M-8. They have been married for 20 years and were never separated. Taylor states that the CLPs relate to Sandra releasing her rights in Taylor’s lands to facilitate Taylor obtaining financing.

A Statement of Claim for Divorce and Division of Matrimonial Property, filed by Sandra Taylor on December 1, 2004 states that the couple had lived separate and apart in excess of one year. In Questioning, Taylor stated that they never separated. [ 26 ] Taylor stated in Questioning that he wants the Road off the Neighbouring Land as he wishes to construct a house for his imminent retirement. However, no plans have been drawn up.

D Dieter Frundt [ 27 ] Paul Koziey’s neighbour, Dieter Frundt, deposed that he made Paul Koziey aware that his Road crossed over onto the Neighbouring Land when they were building a fence in the early 1990s. Taylor used a rifle with a scope to sight a straight line from the survey pin as they cleared a path for the fence and Frundt pushed in the posts. While working on the west side of the ravine, Taylor and Frundt looked over across to the east side of the ravine. They could see the Road. Frundt asked “What are we going to do about Paul’s access”. Larry said: “Can’t just cut him off by the hip pockets”.

So they built the fence on the east side of the ravine around the Road. [ 28 ] Frundt deposed that Paul Koziey approached Frundt while he was working on the fence and told him that the fence was encroaching on his property. Frundt explained that the fence on the other side of the ravine was on the property line, they had surveyed it, and the part on which Frundt was working was actually on Taylor’s property. He told Paul Koziey that if they stayed with the property line, Paul’s access would be cut off and that he should talk to Taylor about it.

Paul Koziey did not disagree, curse him, or question him about where the fence was going in. He never raised it with Frundt again. [ 29 ] Frundt deposed that he simply told Paul Koziey he would need to talk to Taylor. Frundt was unable to say that Paul Koziey agreed he would one day have to move the fence. He was unable to confirm whether such a conversation ever took place. Neither Taylor nor Paul Koziey told Frundt at any time that they had discussed it. III Law A Legislation

[ 30 ] The Limitations Act provides in part: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. ...

(3) For the purposes of subsections (1)(

b) and (1.1)(b), (

f) a claim for a remedial order for the recovery of possession of real property arises when the claimant is dispossessed of the real property. ...

(6) The re - entry of a claimant to real property in order to recover possession of that real property is effective only if it occurs prior to the end of the 10 - year limitation period provided by subsection (1)(b).

(7) If a person in possession of real property has given to the person entitled to possession of the real property an acknowledgment in writing of that person’s title to the real property prior to the expiry of the 10 - year limitation period provided by subsection (1)(b), (

a) possession of the real property by the person who has given the acknowledgment is deemed, for the purposes of this Act, to have been possession by the person to whom the acknowledgment was given, and (

b) the right of the person to whom the acknowledgment was given, or of a successor in title to that person, to take proceedings to recover possession of the real property is deemed to have arisen at the time at which the acknowledgment, or the last of the acknowledgments if there was more than one, was given. [ 31 ]

Section 74 of the Land Titles Act , RSA 2000, c L-4 provides: 74(1) Any person recovering against a registered owner of land a judgment declaring that the person recovering the judgment is entitled to the exclusive right to use the land or that the person recovering the judgment be quieted in the exclusive possession of the land, pursuant to the Limitation of Actions Ac t, RSA 1980 cL - 15, or pursuant to an immunity from liability established under the Limitations Act , may file a certified copy of the judgment in the Land Titles Office.

(2) Subject to

section 191, the Registrar shall (

a) enter on the certificate of title a memorandum cancelling the certificate of title, in whole or in part, according to the terms of the judgment, and (

b) issue a new certificate of title to the person recovering the judgment. [ 32 ]

Section 11 of the Alberta Evidence Act , RSA 2000, c A-18 provides: 11 In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the deceased person, unless the evidence is corroborated by other material evidence.

B Case Law [ 33 ] A person claiming adverse possession must establish on a balance of probabilities that he is in possession and that the true owner is out of possession: O’Brien v Fox , 2000 ABQB 1002 at para 31 , 280 AR 153, citing Handley v Archibald (1899), 1899 CanLII 79 (SCC) , 30 SCR 130 at 137, [1899] SCJ No 58. Possession of the property must be without the owner’s permission: Law v Lau , 2015 ABQB 423 , [2015] AJ No 748 at para 58 .

B Ziff in Principles of Property Law , 3d ed (Toronto: Carswell, 2000) at 126 wrote: The adverse possessor must send out a clarion call to the owner, who, if listening, should realize that something is awry.

If the adverse possession continues, the owner must commence an action within the limitation period to avoid being statute barred. [ 34 ] The acts of possession must be actual, exclusive, open, visible, notorious, adverse, peaceful, and continuous, not equivocal, occasional or for a special or temporary purpose: Lutz v Kawa , 1980 ABCA 112 at paras 19 , 27, 23 AR 9, 1215565 Alberta Ltd v Canadian Wellhead Isolation Corp , 2012 ABQB 145 at para 28 , 534 AR 198, Reeder v Woodward , 2016 ABCA 91 , 616 AR 255, Bennett v Butz , 2003 ABQB 60 at paras 18 , 20-22, 334 AR 162.

Adverse possession does not require continuous occupation: Nelson (City) v Mowatt , 2017 SCC 8 , [2017] SCJ No 8 at para 31 . [ 35 ] The existence of a licence is a complete defence to a claim for adverse possession, and the intention to create a licence can be inferred from the circumstances, the parties’ conduct, and acquiescence: Robertson v King Estate , 1999 ABQB 167 , 243 AR 201, aff’d 1999 ABCA 314 , 244 AR 379, Lehr v St Mary River Irrigation District , [1993] AJ No 1411 at para 40 (QB) . [ 36 ] In order for a licence to re-start the limitations clock under s. 3(7) of the Limitations Act , it must be in writing; the owner cannot foist a licence on the occupant after the fact by unilaterally declaring that the owner will permit the occupation to continue: Reeder at paras 19-20 . [ 37 ] Only an unequivocal and overt act objectively showing the intention to recover the land then and there can stop the limitation clock from running under s. 3(6) of the Limitations Act : Canadian Wellhead at para 34.

[38] In Alberta, an easement cannot be acquired through prescription: s. 69(3) of the Law of Property Act, RSA 2000, c L-7. Acourt’s power to grant a remedy under s. 69(1) addresses lasting improvements made by a property owner on another’s lands under themistaken belief that the lands were his own: Power v Goodram, 2012 ABQB 50 at paras 183-89. [39] The terms of a written easement granting permission to pass over one’s property without more do not amount to a grant oftitle: Westside Land Corporation v Deszynski, 2004 ABQB 82 at paras 19-20, 20 RPR (4th) 225.

Where an owner stops short ofunconditional conveyance of too many property rights, what is granted may not rise above the status of an easement: Zanussi v Roosen,2011 ABQB 751 at paras13-14, 30, 528 AR 194. [40] The test for corroboration under s. 11 of the Alberta Evidence Act is whether the evidence in question makes the plaintiff'sevidence more probable or strengthened by some evidence which appreciably helps the Court to believe one or more of the materialstatements.

It suffices that the testimony produces inferences or probabilities tending to support the truth of the plaintiff's statement; itmay consist of circumstantial evidence and fair inference: Stephenson v McLean (1977), (AB KB), 4 Alta LR (2d)197, [1977] AJ No 393 at para 30 (QB) and Stonchinsky v Chetner Estate, 2003 ABCA 226 at para 29, 330 AR 309.

IV Parties’ Positions [41] Koziey claims that Paul Koziey and his successors have had open, continuous, and exclusive possession of the land to bequieted for a period of 41 years, and the title holder has been out of possession of the lands for a period of 24 years and well in excess of10 years.

Koziey asserts adverse possession over a 24 year period, citing Reeder and Lutz. [42] He claims to be entitled to immunity from liability against the title holder to the lands as Taylor’s claim occurred well beyondthe end of the ultimate 10 year limitation period under the Limitations Act, RSA 2000, c L-12 which started in 1991 when Taylorobtained title to the Neighbouring Land. In other words, Taylor cannot eject the Applicant from the Neighbouring Land. The fencedemonstrates Taylor’s dispossession from the Road.

Taylor did not re-enter or obtain an acknowledgement in writing from Paul Kozieyof his title to the Road. Paul Koziey and his tenants used the Road continuously, exclusively and openly. It is the only way for them toaccess their homes by vehicle. [43] Taylor argues that he built the fence to keep his cattle from wandering onto the Koziey Land. Taylor claims that Paul Kozieysaid in 1992 that he would move the Road, without mentioning a timeframe. This was just after both parties learned that the Road veeredonto the Neighbouring Land.

From that point on, Paul Koziey’s use of the Road was with Taylor’s permission and the limitation perioddid not start to run as Taylor never withdrew his permission. Taylor submits that it is clear from Frundt’s evidence that Paul Koziey wasaware that the Road encroached on the Neighbouring Land. [44] Koziey disputes that Paul Koziey agreed to move the Road.

Taylor’s account of his alleged words to Paul Koziey in 1992support an inference that he was expressing irritation at the fact that Paul Koziey was in possession of part of the Neighbouring Land.Taylor took no further steps to enforce any alleged agreement until March 11, 2015, after Paul Koziey’s passing in 2014. Frundt’sevidence does not corroborate the alleged agreement. Koziey submits that Taylor has not tendered any evidence of unequivocal and overtaction within the 10 year limitation period showing an intention to recover possession.

Nor is there any evidence of an implied licence.Paul Koziey’s knowledge that the Road was partly on the Neighbouring Land is not a bar to a claim for adverse possession. [45] Koziey submits that s. 11 of the Alberta Evidence Act restricts the evidence Taylor can rely upon against the executor of PaulKoziey’s estate.

The evidence adduced by Taylor does not constitute corroboration of the alleged agreement as defined in Stephensonand Stonchinsky. [46] Taylor argues that there is evidence that he acquiesced to Paul Koziey’s continued passage over the Neighbouring Land, andthere is no evidence that Paul Koziey’s possession was without Taylor’s consent or adverse to his ownership. [47] Taylor submits that Paul Koziey’s use and occupation of the Neighbouring Land was for passage only, which is not the typeof use which can form the basis of a claim in adverse possession. There is no evidence of a hostile occupation.

He argues that the use ofthe Road really supports an easement which is not available to Koziey, citing Westside Land and Zanussi. [48] Further, the part of Taylor’s Land that Koziey used is un-subdivided and not of a size, shape or location amenable tomunicipal subdivision approval. Taylor argues that the Court cannot quiet title to a portion of land which really amounts to a subdivision.If the Court grants Koziey’s application, the Applicant will gain land south of the Road that is not specifically used for the Road. [49] Taylor submits that the Road is little more than an unimproved trail through the woods.

The Road needs improving at asignificant cost which should entail taking out the bend in the Road where it crosses over the Neighbouring Land. Taylor argues thatKoziey should build a proper road on the Koziey Land. V Issues [50] The Court must determine the following issues: 1) Has Koziey established a claim for adverse possession in relation to the land he seeks to be quieted? 2) If not, is Taylor entitled to a permanent injunction? VI Analysis

A Has Koziey established a claim for adverse possession in relation to the land he seeks to be quieted? [ 51 ] The evidence establishes that Paul Koziey had actual possession of the .79 acre portion of the Neighbouring Land in question, and effectively excluded the true owner, Taylor, from possession.

The uncontroverted evidence establishes that Paul Koziey’s possession of the Road and the part of the Neighbouring Land which it bordered was actual, exclusive, open, visible, notorious, peaceful, and continuous; it was not equivocal, occasional or for a special or temporary purpose. [ 52 ] The evidence also establishes that Paul Koziey originally believed that the Road was on the Koziey Land. Once he knew the Road encroached on the Neighbouring Land, he continued using it as he had when he believed he owned it, to the exclusion of Taylor.

Further, he never moved the Road despite an apparent discussion between Taylor and Paul Koziey in that regard. [ 53 ] Taylor argues that the possession was not adverse and that there was an implicit licence. [ 54 ] The Court of Appeal’s decision in Reeder is instructive. In that case, the County upgraded a highway a few feet south of the actual property line between two parcels, creating a disputed strip of land. The County moved the fence to the boundary of the roadway and took fill from the respondents’ property without compensation.

The respondents used the disputed strip on a regular basis to grown hay and pasture cattle. The use would have been obvious to the appellants when they took title. The parties unsuccessfully attempted to resolve the issue from time to time in a neighbourly way. The trial judge found that the respondents’ possession of the disputed strip was exclusive, continuous, open, visible and notorious. [ 55 ] The Court of Appeal held that in order to change the character of the occupation from "adverse" to "permitted", both the occupant and the owner must agree that the possession of the land is consensual.

Section 3(7) of the Limitations Act contemplates this sort of acknowledgment being in writing. [ 56 ] The Court also held that where possession is taken on a consensual basis, it can only become "adverse" if there is some clear repudiation of the contract by the occupant of the land, or some clear assertion of rights inconsistent with the title of the owner. The Court noted that the appellant told the respondent shortly after acquiring title that he wanted to fence off the disputed parcel.

The respondent refused. [ 57 ] The appellants argued that there was an implicit licence as they had allowed the respondents’ occupation to continue uninterrupted. The Court of Appeal held that the appellants’ acquiescence in the respondents’ occupation of the disputed parcel was essentially a failure of the appellants to take timely steps to assert their claims to the disputed parcel.

As for the allegation that the respondents “knew” who was the true owner, the Court stated that nothing can be more adverse than claiming property owned by another; what matters is not knowledge, but rather intention. [ 58 ] This case is similar to Reeder in that Taylor allegedly sought to resolve the matter in a neighbourly way in 1992, but it remained unresolved. Taylor allegedly told Paul Koziey in 1992 that Paul would have “to straighten [Paul’s] road out”, and that Taylor wanted Paul “to move his road”. Taylor alleges that Paul Koziey said he would do it eventually.

However, Paul Koziey never did move the Road. In essence, Paul Koziey declined until his death to resolve the matter as allegedly proposed by Taylor in 1992. [ 59 ] Frundt deposed that he made Paul Koziey aware in 1992 of the fact that the Road encroached on the Neighbouring Land. However, Frundt was not aware of any agreement between Taylor and Paul Koziey that the Road would be moved despite having had considerable contact with Paul over the years. [ 60 ] Taylor submits that he granted an implied licence to Paul Koziey.

However, his evidence is that he wanted the Road to be moved and sought an agreement from Paul to that effect. In my view, his acquiescence in the face of Paul Koziey’s continued failure to move the Road constituted a failure on Taylor’s part to take timely steps to assert his claim to the land beyond the fence he had constructed. [ 61 ] Taylor also argues that Koziey’s claim is really one of easement given the fact that a right of passage was involved. In my view, whether a claim of easement would be successful is irrelevant.

The Courts in both Westside and Zanussi were interpreting the terms of written easements. Furthermore, Taylor has not advanced any law to support the argument that a non-owner may not gain an interest in a private road through adverse possession. B Is Taylor entitled to a permanent injunction? [ 62 ] Given my conclusion on the first issue, it is unnecessary to consider the second.

Conclusion [ 63 ] The Applicant is entitled to the exclusive right to use the land to be quieted, and is quieted in exclusive possession of the land. [ 64 ] The Registrar of the Northern Alberta Land Registration District is hereby directed to register the judgment notwithstanding s. 191 of the Land Titles Act , to cancel the Certificate of Title to the Neighbouring Land in whole, and to issue a new Certificate of Title reflecting the Tentative Plan Showing Proposed Subdivision on Exhibit “E” of the Affidavit of Christopher Koziey sworn on August 30, 2015. Costs

[ 65 ] If the parties cannot agree on costs, they may speak to them within 30 days of this decision. Heard on September 15, 2016 and March 20, 2017. Dated at the City of Edmonton, Alberta the 6 th day of October, 2017. D.A. Sulyma J.C.Q.B.A. Appearances: John M Frame Witten LLP for the Applicant/Cross-Respondent, Christopher Koziey as Personal Representative of the Estate of Paul Walter Koziey David C McGreer Gaffney McGreer & Rowand for the Respondent/Cross Applicant, Larry Brian Taylor