2017 NLCA 40, 2017 NLCA 40

Lionel M. House and Quentin House (appellants/respondents by cross-appeal) v. Craig S. Toms (respondent/appellant by cross- appeal) (15/85 and 15/91) Indexed As: House v. Toms 2017 NLCA 40 2 C.A.N.L.R. 40 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Harrington and Hoegg JJ.A. June 23, 2017

Summary: Lionel House, the first appellant, acquired a permit to occupy a lot of Crown land at Shoal Pond, Green Bay, Newfoundland and Labrador upon approval of his application under the Crown Lands Act , RSNL 1970, c-71 on October 25, 1988. He built a cottage on his land and accessed it by building a road partially on the land he occupied and partially on Crown land from a woods road nearby.

His son, Quentin House, the second appellant, occupied Crown land adjacent to the west of his father’s land since 2000, after purchasing that land from a former occupant, and building a driveway to it from the road on his father’s land. On May 17, 2010, the respondent Mr. Toms received conditional approval to occupy land to the west of Quentin House’s land. Mr.

Toms built a road over Lionel House’s and Quentin House’s lands, moved the chain fence that Quentin House had put across the road where the woods road met the road he built on his property, and pushed aside two loads of juniper wood that had been stored on Quentin House’s land to make room for Mr. Toms’ road. Despite promising to do so, Mr. Toms did not construct his own access road or remediate the Messrs. House’s lands once he finished building his cottage. Relations between the men deteriorated and Lionel and Quentin House commenced legal proceedings in trespass.

The applications judge granted an application for

summary judgment and dismissed the trespass action, finding that the licenses held by Lionel and Quentin House were not intended to confer any title, interest or estate in the lands they occupied, that Mr. Toms’ roadbuilding was not in any way injurious or incompatible with the Messrs. House’s rights under their occupancy licenses, and that they did not have exclusive possession of the land they occupied and were not entitled to restrict public access to their lands. Lionel and Quentin House appealed. Mr. Toms’ cross-appealed, seeking solicitor client costs. Held: Appeal allowed, cross-appeal dismissed.

Hoegg J.A. (Green C.J.N.L. and Harrington J.A. concurring): It is not necessary for a plaintiff to prove title to land in order to sustain an action in trespass. Possession of the land in dispute of a character sufficient to sustain a trespass action is required, and further, in order to constitute such possession, some evidence of entry onto the land must be shown and the possession cannot have been abandoned. To establish possession, the plaintiff must prove that: (

i) he intended to possess the land in dispute; and, (ii) the possession was of a character recognized by law as sufficient to support the action. The intention to possess must be an intent to occupy the whole of the land and to exclude others therefrom. There need not, however, be an intent to exclude the true owner. Lionel and Quentin House occupied their respective lands described in their respective licenses. The licenses of Lionel and Quentin House are not bare licenses; they are licenses which relate to the occupation and use of identified lands granted by the Crown to them.

The wording of the original occupancy permits as well as the current licenses shows that the Crown conveyed to the license holders a possessory interest in all of the land covered by the licenses, and not just the cottage footprints, and that the possessory interest conveyed includes the right to exclude strangers and reasonable use of all of the land described in the licenses for purposes ancillary to cottage use, subject only to the conditions outlined in the licenses and otherwise required by law.

Mr. Toms argued that because the Crown holds title to the lands which the Houses are licensed to possess, the Houses cannot excludehim therefrom. This proposition is wrong in law. Establishing a third party’s ownership interest in disputed land is not a valid defence toa trespass action. Messrs. House were granted possession of the land covered by their licenses of a character sufficient to maintain anaction in trespass against a stranger. In deciding otherwise, the Judge erred.

Even without the licenses, it is likely that the Houses have established a sufficient possessory interest in their respective lands to supporta trespass action against Mr. Toms. The improvements Lionel and Quentin House made to the lands demonstrate actual entry onto anduse of the lands of a character long recognized to be indicative of possession. The Judge did not appear to apprehend the law of trespassor apply it to the Houses’ trespass suit.

The Judge reasoned that the shoreline reservation stipulated by section 7(1) of the Act supported the notion that the legislature did notintend licensees to have exclusive possession of their lands. Instead, the shoreline reservation set out in section 7(1) of the Act supportsthe legislature’s intention to convey possession of licensed lands to license holders. Otherwise, there would be no need for section 7(1) tobe included in the Act. The appeal was allowed. Given the result, it was not necessary to decide Mr. Toms’ cross-appeal on costs. The cross-appeal was therefore dismissed. Cases cited: Shea v.

Noseworthy (1981), 35 Nfld. & P.E.I.R. 432 (Nfld. C.A.) Hickey v. Walsh (1997), (NL SC), 154 Nfld. & P.E.I.R. 59 (Nfld. T.D.) Ultramar Canada Inc. v. Atjem Holdings Ltd. (1995), (NL SC), 133 Nfld. & P.E.I.R. 31(Nfld. T.D.) Bowaters (Nfld.) Ltd. v. Pelley Enterprises Ltd. and Pelley (1977), 12 Nfld. & P.E.I.R. 251 Counsel: John Sinnott Q.C., for the appellants/respondents by cross-appeal; Gerald R. Ralph, for the respondent/appellant by cross-appeal. This appeal was heard on January 18, 2017 before Green C.J.N.L., Harrington and Hoegg JJ.A.

The following judgment was delivered on June 23, 2017 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: INTRODUCTION [1] This case concerns whether Lionel and Quentin House have a sufficient interest in the lands they are licensed to occupy tosustain an action in trespass against Craig Toms. The trial Judge did not think so, and dismissed their action against Mr. Toms. TheMessrs. House appeal the Judge’s decision, and Mr. Toms cross-appeals seeking solicitor-client costs.

BACKGROUND [2] Lionel House has occupied a lot of Crown land at Shoal Pond, Green Bay, Newfoundland and Labrador since 1988. Mr. Houseacquired a permit to occupy his land upon approval of his application (No. 85352) by the Regional Lands Supervisor of the Departmentof Environment and Lands under the authority of the Crown Lands Act, RSNL 1970, c-71 on October 25, 1988. He received what theMinister of Environment and Lands called his “fully executed title” to the land described in his application from the Minister onNovember 18, 1988. [3] Mr.

House’s land is described in his application as “[b]ounded on the north by Shoal Pond, bounded on the east by Shoal Pond,bounded on the south by Shoal Pond Ridge, and bounded on the west by Shoal Pond.” Its dimensions are stated to be 300 feet in widthand 200 feet in depth, and the purpose for which the occupancy permit was given to Mr. House, who was a trapper, is stated to be “toconstruct a commercial resource based cottage”. [4] Lionel House built a cottage on his land. He accessed his land and cottage by building a road from a woods road situatedapproximately 2,000 feet away.

The road he built was partially on the land he occupied and partially on Crown land which he did notoccupy. Mr. House regularly renewed his occupancy permit for a modest yearly fee, which increased from $5.00 to $100.00 in 2008because he no longer had a trapping permit and his cottage was no longer considered a resource-based cottage but a recreational one.

[ 5 ] Lionel House’s son, Quentin House, has occupied Crown land adjacent to the west of his father’s land since 2000. He acquired his occupancy permit by purchasing the land to which it pertained and the cottage on it from Garnet T. Clarke, who had acquired an original occupancy permit for the land on February 4, 1992 in much the same manner as Lionel House had acquired his. Quentin House’s land is described in Mr. Clarke’s original occupancy permit as “being situate at Shoal Pond in the Electoral District of Green Bay comprising an area not to exceed 0.4000 hectares, as delineated in the attached

Schedule A.” (Schedule A shows the location of Mr. Clarke’s land at Shoal Pond.) The purpose for granting the permit is stated to be a remote cottage. After purchasing his property from Mr. Clarke, Quentin House built a driveway to it from the road on his father’s land. Quentin House has paid the applicable annual fees since he purchased his property from Mr. Clarke. [ 6 ] The legislation governing occupancy permits respecting Crown lands changed in 1991. The new Lands Act, SNL 1991, c. 36 describes what was formerly a “Permit to Occupy Crown Lands” as a “License No. ___”.

The licenses now held by Lionel and Quentin House each bear the same number as their former occupancy permits bore, which are the numbers of the original applications made by Lionel House and Garnet Clarke. The current licenses are subject to conditions which do not differ from the conditions to which the original occupancy permits were subject in any manner material to this case. [ 7 ] Craig Toms occupies land to the west of Quentin House’s land. On May 17, 2010, Mr.

Toms received approval to occupy this land conditional upon the installation of an approved sewage design/water supply system and his providing a Crown land survey. His conditional approval specifically directed that he was not to occupy the land until he received fully executed title. He received his Crown grant on February 15, 2013. [ 8 ] In 2010, a land surveyor alerted Lionel House to the fact that a road was being built on his land. Mr. House investigated, and concluded that Mr. Toms was building a road over his and his son Quentin’s lands.

He noticed that the chain fence he had put across the road where the woods road met the road he built on his property was lying on the ground, and discovered that two pick-up loads of juniper wood stored on Quentin House’s land had been pushed aside to make room for Mr. Toms’ road. Mr. House spoke to Mr. Toms about the situation, and according to Mr. House’s affidavit evidence, Mr. Toms said that he would turn the Houses’ lands “back to how he found it” and “cut his own access” after he finished hauling the building material for his own cottage onto “his own land”. Mr.

Toms did not challenge Lionel House’s version of this conversation by cross-examination, although he (Mr. Toms) testified that he told Mr. House only that he would move his road when Crown Lands told him where to go. [ 9 ] Mr. Toms finished building his cottage and did not construct his own access road or remediate the Messrs. House’s lands. Lionel House and Mr. Toms had words, and Lionel House put up a fence and a “No Trespassing” sign. Mr. Toms subsequently tore down the fence and threw the sign into the woods.

Matters did not resolve, so in September 2012, Lionel and Quentin House commenced legal proceedings in trespass. Mr. Toms denied liability. Several months later, Mr. Toms applied for

summary trial and dismissal of the trespass suit. [ 10 ] Mr. Toms’ application was heard at the Supreme Court Trial Division in Gander in September, 2014. The Judge granted it, and dismissed the trespass action. The Judge found that the licenses held by Lionel and Quentin House were not intended to confer any title, interest or estate in the Shoal Pond lands they occupied (paragraph 8), that Mr. Toms’ roadbuilding was not in any way injurious or incompatible with the Messrs.

House’s rights under their occupancy licenses, and that they did not have exclusive possession of the land they occupied and were not entitled to restrict public access to their lands (paragraph 9). At paragraph 10 of his decision, the Judge concluded: … The licence of occupation that they rely on is simply a licence giving them the right to enter upon Crown land in accordance with certain terms and conditions for the limited purpose of having a wilderness cottage.

The licence does not give the holders any interest in land capable of sustaining an action in trespass. … [ 11 ] In support of his decision, the Judge reasoned that the shoreline reservation in

section 7(

a) of the Act was evidence that the Crown did not intend to or grant exclusive possession to licensed occupiers of its land. The Positions of the Parties on Appeal Lionel and Quentin House’s Position [ 12 ] The Messrs. House argue that the licenses they hold give them sufficient possession of all of the land described therein so as to sustain a trespass action against Mr. Toms. Mr. Toms’ Position [ 13 ] Mr.

Toms argues that the licenses held by Lionel and Quentin House give them only simple permission to enter upon their lots of land to build cottages, and that they do not convey a possessory interest or estate in the lands sufficient to sustain a trespass action against him. Mr. Toms does not dispute that Lionel and Quentin House possess the land directly under their respective cottages, but he argues that the remaining land within the boundaries of their respective licenses, including the land under their respective roads or driveways, is Crown land which they do not possess and which he is free to use.

Consequently, Mr. Toms submits, the Messrs. House do not have a sufficient possessory interest in the land over which he built his road to sustain a trespass action against him. ISSUES [ 14 ] The central issue on appeal is whether Lionel and Quentin House have a sufficient possessory interest in the lands they are licensed to occupy to sustain an action in trespass against Mr. Toms.

The issue concerns the nature of interests conveyed to them in their licenses, as well as the law of trespass. [ 15 ] Lionel and Quentin House also argue that the Judge erred in reasoning that the inclusion of the shoreline reservation in

section 7

of the Act supported his decision. [16] If the Judge’s decision is sustained, whether he erred by not awarding solicitor-client costs to Mr. Toms is an issue. [17] The interests held by Lionel and Quentin House by virtue of their occupancy licenses vis-a-vis the Crown are not in issue. ANALYSIS The Law of Trespass [18] In Shea v. Noseworthy (1981), 35 Nfld. & P.E.I.R. 432 (Nfld. C.A.), this Court established that it is not necessary for a plaintiffto prove title to land in order to sustain an action in trespass.

The Court explained that possession of the land in dispute, of a charactersufficient to sustain a trespass action, was required, and further, that in order to constitute such possession, some evidence of entry ontothe land must be shown and the possession cannot have been abandoned (paragraph 11). [19] This principle was elaborated on by Green J. (as he then was) in Hickey v. Walsh (1997), (NL SC), 154 Nfld.& P.E.I.R. 59 (Nfld. T.D.), wherein he described in detail the requirements to be met by parties to a trespass action: To make out his claim, the plaintiff does not have to prove a title to the land.

All he need do is establish on a balance of probabilities thathe was in possession of the land at the time of the alleged trespass or, if not in possession, that he has a better right to possession than thedefendant. It is only in this latter connection that the parties' relative claims to title become relevant. The defendant may resist the plaintiff's claims by showing that the plaintiff cannot prove possession of a character necessary to support atrespass action or, alternatively, that the defendant has a claim of title to the land that is better than the plaintiff's.

It is not sufficient forthe defendant simply to show that title is not in the plaintiff, but in a third party: Bowaters (Nfld.) Ltd. v. Pelley Enterprises Ltd. andPelley (1977), 12 Nfld. & P.E.I.R. 251; 25 A.P.R. 251 (Nfld. C.A.), at p. 256. To establish possession, the plaintiff must prove that: (

i) he intended to possess the land in dispute; and, (ii) the possession was of acharacter recognized by law as sufficient to support the action. The intention to possess must be an intent to occupy the whole of the land and to exclude others therefrom. There need not, however, bean intent to exclude the true owner; a licence or other permission to occupy from the true owner will be sufficient to support an action intrespass against a stranger. The degree of possession required is not high.

It need not be of such a character as to constitute adverse possession for the purpose ofextinguishing another's title under the Limitations Act, S.N. 1995, c. L-16. There must, however, be some evidence of entry, howeverslight: Shea v. Noseworthy (1981), 35 Nfld. & P.E.I.R. 432; 99 A.P.R. 432 (Nfld. C.A.), per Morgan, J.A., at 438. It must be of a degreeand kind sufficient to indicate the requisite possessory intention and must be sufficient to amount in fact to some measure of actualoccupation or use of the land.

The extent of the contact specified in order to amount to possession varies with the nature of the land. (Paragraphs 3-7.) I would adopt this statement of the law. Is Mr. Toms’ road on lands occupied by Lionel and Quentin House? [20] The trespass action of Lionel and Quentin House is based upon Mr.

Toms pushing a road over their lands to the land eventuallygranted to him. [21] The evidence of Lionel and Quentin House was that they have occupied their respective lands described in their respectivelicenses, in Lionel’s case since he received his permit to occupy from the Crown, and in Quentin’s case since he acquired his permit tooccupy from Mr. Clarke. Their evidence also explains that sometime in 2010 Mr. Toms entered upon a corner of Lionel House’s landand from there pushed his road onto and across Quentin House’s land to Mr. Toms’ own conditionally approved lot.

Quentin House’sevidence also says that after Mr. Toms cast aside the “no trespassing” sign that his father erected, Mr. Toms bulldozed again across theHouses’ lands to keep his (Mr. Toms’) access open. [22] Mr. Toms did not dispute the evidence of Lionel or Quentin House or cross-examine either of them at trial. Because he did notchallenge their evidence, he may be taken to have conceded that his roadbuilding occurred on lands they occupied (Rule 17A.02(5) andUltramar Canada Inc. v. Atjem Holdings Ltd. (1995), (NL SC), 133 Nfld. & P.E.I.R. 31(Nfld. T.D.), at para. 26). Mr.

Toms acknowledged in his trial testimony that he took no steps to ascertain the boundaries of the lands to which the licenses held byLionel and/or Quentin House pertain, or determine by measurement or survey if he (Mr. Toms) was building his road on their land. Mr.Toms’ testimony was that he “took the easiest route” to his conditionally approved land despite knowing and seeing that QuentinHouse’s cottage and driveway were very close to the road he was building.

Additionally, he all but admitted in his testimony that he builthis road on their lands saying that he “did not realize he had done so until Lionel House spoke with him about it” (Transcript, at pages29-31). Furthermore, and while not supported by surveys, the documents filed by the Houses in their trespass suit also show that Mr.Toms’ road was built over both Lionel and Quentin House’s lands. Accordingly, the evidence and the record establish that Mr. Tomsbuilt his road on lands covered by the licenses held by Lionel and Quentin House and actually occupied by them.

In any event, Mr.Toms did not argue that the land on which he built his road was not the land occupied by Lionel and/or Quentin House. Rather, hedefended the trespass action on the basis that the licenses held by Lionel and Quentin House did not give them a sufficient interest in thelands to which their licenses pertain to sustain an action in trespass against him. The Licenses [23] I would first observe that the change in nomenclature from “permit to occupy” to “license” did not alter the purposes for use or

the dimensions of the land to which the current licenses pertain, and it has not been shown that the integrity of the rights and interests conveyed in the original permits has otherwise been affected by the change. I would also observe that licenses come in various forms and with various conditions. For instance, a license I give to my neighbour to enter my land to pick my vegetables while I am away on vacation is quite different from a license to build on and occupy a described parcel of land.

The licenses of Lionel and Quentin House are not bare licenses; they are licenses which relate to the occupation and use of identified lands granted by the Crown to them.

In this regard, I note the statement at paragraph 6 of Hickey that “a license to occupy from the true owner will be sufficient to support an action in trespass against a stranger”. [ 24 ] The question to be answered therefore is whether the licenses held by Lionel and Quentin House conveyed to them a possessory interest in all of the land to which the licenses pertain – not just the land under their respective cottages – sufficient to sustain a trespass action. [ 25 ] The original occupancy permit granted to Lionel House states that he was permitted to occupy “Crown land located at Shoal Pond … as described in … application 85352 ”.

Mr. Clarke’s original permit permitted him to occupy “[a]ll that piece or parcel of land delineated … and situate … and comprising an area of .4000 hectares …” as described in his application . [ 26 ] Neither the original occupancy permits nor the licenses specify the use to which the land remaining around the cottages after being built could be put.

Although the licenses contain conditions relating to building within certain distances from the high water mark, other cottages, and a firebreak, they do not differentiate between the land under the cottages — whether built on or not, and the balance of the lands covered by the licenses. As well, the word “improvements” is used in the licenses in reference to the lands. This plural word suggests that more than one improvement – perhaps a driveway, shed or garden – was in the contemplation of the Crown when conveying the licenses and also within the contemplation of the licensees upon receiving them. In

summary, both the original occupancy permits and the renewed licenses are replete with references to “land” and “lands” without differentiation between the cottage footprints and the balance of the lands described therein. Accordingly, the language used in both original occupancy permits and both licenses purports to cover all of the lands to which the licenses pertain, which are the lands described in the original applications of Lionel House and Garnet Clarke and incorporated into the licenses held by Lionel and Quentin House. [ 27 ] Mr.

Lionel House’s original occupancy permit provides for the payment of fees, and Mr. Clarke’s permit refers to “taxes and charges” being levied in relation to the “land and premises”. The licenses held by Lionel and Quentin House require them to pay “all annual fees and charges that may be levied by any Municipal, Provincial or Federal authority on or in respect to the land and premises”. The requirement that license holders pay any annual taxes, fees or charges sets them apart from strangers who might claim a right of entry to occupied lands but who are not required to pay anything to anyone.

This financial requirement shows an intention on the part of the Crown to give to license holders something more than that to which a stranger would be entitled, and supports the license holders’ understanding that they were conveyed a possessory interest in the identified land of such a nature as to permit them to exclude strangers.

Were it not so, license holders would not likely agree to pay such taxes, fees or charges; they must get something for the “privilege” of agreeing to pay annual taxes, fees or charges, and that something must be the right to exclude persons other than those to whom the Crown has specifically granted access as set out in the licenses. [ 28 ] Mr. Lionel House’s original occupancy permit did not address whether persons other than the permit holders could access or use his occupied land, except for specifying that access must be granted to Noranda Exploration for mineral exploration. Mr.

Clarke’s original permit specifically stated that officers authorized by law or the Minister must be granted access. The current licenses require licensees to permit access to the land at all times by Officers authorized by law or by the Minister.

Such specific allowances for third party and Crown access show that the Crown intended to convey to the licensees the right to exclude strangers from the lands their licenses cover, for if the Crown did not so intend the specific allowances would not be necessary. [ 29 ] Lionel and Quentin House also argue that their obligation to indemnify the Minister against loss, cost or damage resulting from their use of the “land” described in their licenses is support for their position that their licenses give them possession of all of the land covered by them. I agree.

The Crown could hardly have intended licensees to be responsible for damage respecting the lands they are licensed to occupy if they are not able to exercise some measure of control over access to and use of it.

Likewise, license holders would hardly agree to be so responsible if they were not able to control who entered upon their lands. [ 30 ] Aside from there being no obvious basis in the licenses for saying that the holders of licenses such as those held by Lionel and Quentin House possess only the land directly under their cottages, to so hold would mean that a stranger could enter upon licensees’ lands, use their driveways, knock down their woodpiles, help themselves to their flora and fauna, and otherwise interfere with the licensees’ ordinary use of the land surrounding their cottages all while paying and being responsible for nothing.

The notion that Lionel and Quentin House would have to tolerate strangers camping on their front lawns illustrates the absurdity of Mr. Toms’ position. In this regard, Mr. Toms’ roadbuilding on the Messrs. House’s land is quite incompatible with their occupation and use of it. [ 31 ] In addition to the above, the purposes for which the respective licenses are granted, that being for cottages, contemplates cottagers possessing the land surrounding their cottages.

Cottage possession, whether for trapping or recreational purposes, contemplates use of land surrounding these cottages for access, storage of supplies and equipment, parking, and all manner of other purposes reasonably associated with cottage use. Such use logically requires possession of the surrounding land.

In addition, the unchallenged affidavit evidence of Lionel and Quentin House confirms that they occupied all of the land covered by their respective licenses, and asserted by the use of “no trespassing” signs and in other ways a claim to exclude others therefrom. [ 32 ] In the result, the wording of the original occupancy permits as well as the current licenses shows that the Crown conveyed to the license holders a possessory interest in all of the land covered by the licenses, and not just the cottage footprints, and that the possessory interest conveyed includes the right to exclude strangers and reasonable use all of the land described in the licenses for purposes ancillary to cottage use subject only to the conditions outlined in the licenses and otherwise required by law. [ 33 ] Mr.

Toms did not assert any claim to or possessory interest in the lands that Lionel and Quentin House possess. Instead, he argued that because the Crown holds title to the lands which the Houses are licensed to possess, the Houses cannot exclude him therefrom. This proposition is wrong in law. Establishing a third party’s ownership interest in disputed land is not a valid defence to a

trespass action, as was decided by this Court in Bowaters (Nfld.) Ltd. v. Pelley Enterprises Ltd. and Pelley (1977), 12 Nfld. & P.E.I.R. 251 , at p. 256, and restated in Hickey at paragraph 4 . [ 34 ] Accordingly, the Messrs. House were granted possession of the land covered by their licenses of a character sufficient to maintain an action in trespass against a stranger ( Hickey , at paragraph 6 ). In deciding otherwise, the Judge erred in finding that the licenses the Crown conveyed to the Messrs.

House did not entitle them to restrict public access and contain a sufficient possessory interest in land to sustain an action in trespass. [ 35 ] However, even without the licenses, it is likely that the Houses have established a sufficient possessory interest in their respective lands to support a trespass action against Mr. Toms. [ 36 ] Both Lionel and Quentin House established at trial that they have cottages on their respective lands. Lionel House built his cottage himself, and Quentin House’s cottage, built by Mr. Clarke, was on his land when he purchased it.

Both Lionel and Quentin built access roads on their lands. These improvements demonstrate actual entry onto and use of the lands of a character long recognized to be indicative of possession. In fact it is hard to imagine a more definitive act of possession than building living quarters and access thereto on land.

Quentin House’s stacking of wood on his land, and Lionel House’s erection of a chain and later a wire fence and “no trespassing” sign across the road he built to delineate his land from land outside the boundaries of his license are also acts indicating intention to possess as well as acts of actual entry onto and use of the lands within the boundaries described in their licenses. Mr. Toms is a stranger; he did not assert any claim to the lands in dispute, let alone one that could compete with the claims of the Messrs. House.

Accordingly, the Judge did not appear to apprehend the law of trespass or apply it to the Houses’ trespass suit. [ 37 ] In all of the circumstances, Lionel and Quentin House have sufficient possessory interest in the lands they are licensed to hold to sustain a trespass action against Mr. Toms. [ 38 ] The Judge reasoned that the shoreline reservation stipulated by section 7(1) of the Act supported the notion that the legislature did not intend licensees to have exclusive possession of their lands. As explained above, exclusive possession is not an issue in this case.

Regardless, I am of the view that the shoreline reservation set out in section 7(1) of the Act supports the legislature’s intention to convey possession of licensed lands to license holders. If it were otherwise, there would be no need for section 7(1) to be included in the Act. In any event, Mr. Toms concedes that the Judge’s reliance on section 7(1) to support his decision was in error. [ 39 ] Something more must be said about Mr. Toms. He admitted at trial that he was aware in 2012 that Lionel and Quentin House were asserting that he was trespassing and altering their land.

Yet, he stated in his affidavit of September 19, 2013 that he was unaware of any adverse claim to the land on which he had built his road. Given that he was well aware of the land dispute at this time, his position is more than a little suspect. [ 40 ] In the result, Lionel and Quentin House have a possessory interest in the lands they are licensed to occupy sufficient to sustain an action in trespass against Mr. Toms, and they have established that Mr. Toms did trespass upon their lands.

In deciding otherwise, the Judge misapprehended the nature of interests the Crown conveyed to Lionel and Quentin House in their respective licenses, and misapprehended and misapplied the law of trespass to their suit. [ 41 ] Given the above result, it is not necessary to decide Mr. Toms’ cross-appeal on costs. DISPOSITION [ 42 ] I would allow the appeal of Lionel and Quentin House and remit the matter to the Supreme Court Trial Division for assessment of damages. I would order column 3 costs in this Court and the court appealed from to the Messrs. House. Appeal allowed. Cross-appeal dismissed .