JAMES JACKSON v. BARBRO JACKSON, 2011 NLTD 107

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : Jackson v. Harnum , 2011 NLTD(G) 107 Date : 201108 12 Docket : 200501T9254 BETWEEN: JAMES JACKSON AND BARBRO JACKSON PLAINTIFF AND: ROBERT HARNUM DEFENDANT ___________________________________________________________________ Before: The Honourable Madam Justice Deborah E. Fry Reasons for Decision Given Orally ___________________________________________________________________ Place of Hearing: St. John’s , Newfoundland and Labrador Date(

s) of Hearing: June 28 , 29, 30, 2011 Oral Decision: July 5, 2011 Written Decision: August 12, 2011 Appearances: David R. Power Appearing on behalf of the Plaintiffs Gordon Seabright Appearing on behalf of the Defendant

Authorities Cited: CASES CONSIDERED: Bussey v. Maher, 2006 NLCA 28; Carew v. Rockwood, (1993) (NL SC), 112 Nfld. &P.E.I.R. 299 (Nfld. S.C.(T.D.)); Henley v Ryan, (1980) 25 Nfld. & P.E.I.R. 431 (Nfld. Dist. Ct.); Healey v. Hawkins, (1968) 3 All E.R.836. TEXTS CONSIDERED: Rt. Hon. Sir Robert MeGarry et al, The Law of Real Property, 6th ed. (London: Sweet & Maxwell Ltd.,2000). REASONS FOR JUDGMENT Reasons for Decision Given Orally Fry, J.: INTRODUCTION [1] The matter before the court involves a boundary dispute between the Jacksons and the Estate of Robert Harnum. Mr. andMrs.

Jackson purchased their property in Whiteway from Stan Waterman in 2003. [2] Mr. Waterman bought the land from Mr. Pottle in 1978 for $350. A survey accompanied the deed. This property wasbounded on one side by Harnum family land, which had a driveway. [3] The Harnum family land is claimed by possessory title. Mr. Robert Harnum received the land from his grandfather and nowMr. Carl Harnum owns the land as representative and beneficiary of his father’s estate. Several relatives testified that the land hadbelonged to the Harnum family for as long as they could remember.

The Department of Highways also paid compensation forexpropriation in the amount of $27.23 and Mr. Robert Harnum, conveyed as beneficial owner, a parcel of land for a highway reservationon September 29, 1972 when they constructed the new road through Whiteway. (Exhibit CH#1) BACKGROUND [4] Back in the late 1970’s a group of approximately 16 couples spent summer vacation and weekends in the Islington, Heart’sContent, and Whiteway area in their trailers.

Some of them were interested in purchasing land to construct summer cabins and many ofthem spent time with Robert Harnum and occasionally parked their trailers on his land. One of those couples was Stan Waterman andhis wife. They had heard about the Pottle land and purchased it in 1978. The evidence established that there was no easy access to thispiece of property and the only structure on it may have been an old shed. Mr. Waterman was friends with Mr. Harnum and with theassurance of access over the Harnum property, Mr. Waterman completed the purchase of the Pottle land. [5] The question arises as to whether Mr.

Waterman had permission to cross the Harnum property and to use the Harnumdriveway to get access to his property. Mr. Don Randell, who testified, was also part of the group that spent summers together and hesays that he heard both Harnum and Waterman speak about permission to use the access. He said it was necessary to go part way downMr. Harnum's driveway to get to the land. Mr. Randell testified that it was talked about by both Mr. Waterman and Mr. Harnum manytimes. Mr. Harnum was happy to do this for his friend and Mr. Waterman was grateful to get the access to the land.

I should pause tosay that it was not that there was no other way to get onto the land purchased by Mr. Waterman-just that this was the easiest andcheapest way to do so. [6] Mr. Waterman was a good friend of Mr. Harnum. He testified that he was given permission to park his trailer on Mr.Harnum's land and that he was grateful for Mr. Harnum's permission to use the access, however, he thought the area over which he wasdriving to get to his property was “no man's land.” Mr. Waterman says he never sought or received permission to access his propertyacross Harnum land.

He says the only permission he ever received was to park his trailer on Harnum land. [7] He further states that when he hired Mr. Gerald Jackson to bring in fill and make the driveway connection from his propertyto the highway (joining up with the Harnum driveway) that he got a conditional development permit to build a summer cabin from theregional development control officer, Department of Municipal Affairs dated June 25, 1981 (Exhibit SW#2).

He concludes that hewould not have received permission to bring in fill and construct his driveway if he did not own the land. [8] This approval was granted under the Protected Road Zoning Regulations and flowed from Mr. Waterman’s application tobuild a summer cabin. He filled out a form outlining the proposed development. The permit was granted subject to the followingconditions: “1. the development being located and constructed in accordance with the approved plans and specifications and to the standards of the

National Building Code of Canada. 2. The applicant must contact the Department of Health, Harbour Grace in order to obtain plans and specifications of the water and sewage facilities before construction is commenced. 3. The cabin being set back a minimum of 30 metres (100 feet) from the centre line of the Trinity South Highway. 4. A permit is obtained from the municipality of Whiteway 5. This permit is valid for a period of one year from the date of issue.” [ 9 ] The fact that he received permission to build a cabin does not establish ownership of the driveway. [ 10 ] Mr.

Robert Harnum, now deceased, in sworn affidavits filed in this matter stated that, in 1978, he gave permission to Mr. Waterman to use a piece of his land to access a summer cabin which he intended to construct. He stated that Mr. Waterman knew it was his land and he needed permission to use a portion of this property to connect up to the driveway he was building. His affidavit also states that he warned the applicant, Mr. Jackson prior to his purchase in 2003, that Mr. Waterman did not own the right-of-way. [ 11 ] Mr.

Carl Harnum, the son of Robert Harnum, testified that his father told him that he had granted permission to his friend Mr. Waterman to access his land so that he could build a cabin on his land. They were good friends and his father spent a lot of time with the group. He also testified that his mother was worried about what access had been granted and asked her son, Carl Harnum to make a sketch of what was theirs and what permission had been given to Waterman. Mr. Harnum did create this drawing in 1979 – 80 and entered it as Exhibit CH#15.

He was studying CAD (computer assisted drafting) at a college at the time. [ 12 ] By 2003, Mr. Waterman had decided to sell his land. He and Mr. Harnum both agreed to have Bill Doyle survey the property. Mr. Doyle was engaged to create two surveys one for Mr. Waterman and one for Mr. Harnum. Mr. Doyle testified that he met with both of these gentlemen at the same time and that they agreed that Mr. Waterman was gaining access to his land over the Harnum property. Mr. Doyle's survey shows that a piece of the Harnum land was used to access the Waterman property and Mr. Doyle testified that both men knew that. Mr.

Doyle testified that he provided each of the parties with a modern survey, which had some changes from the old magnetic survey done in 1978. He testified that he used a metal detector and found old iron pins and as a result the boundary line changed between the Waterman and Harnum lands by several metres. This, however, did not materially affect the driveway portion of the Harnum land. On either survey, the 1978 survey or the 2003 survey, the disputed portion remains on Harnum land.

Both parties accepted the survey and it formed the basis for the legal description and was attached to the conveyance between Waterman and Jackson in 2003. [ 13 ] In my view, the plaintiffs clearly had legal notice that a portion of their access to the purchased property crossed Harnum land when they purchased the property on July 28, 2003. [ 14 ] Carl Harnum testified that his father told him he was very upset about this purchase as the Jacksons had told him that they planned to run a bed and breakfast business.

The son testified that his father told him that he was upset because now rather than a friend using a summer cabin, he would have a B&B business with people coming and going every few days and he was not going to permit them to use the driveway. [ 15 ] Mr. Jackson testified that he did not anticipate any problems using the access. He understood the driveway had been in use for 20 years. Mr. Jackson testified that Mr. Harnum said he might block it off and Mr. Jackson replied to Mr. Harnum that he could not. He testified that he "bought the access". [ 16 ] In the summer of 2004, Mr.

Harnum put a rope across the entrance to the Jackson property. Mr. Jackson testified that, with legal advice, he took it down. After that the dispute escalated. Fencing was put up and taken down, ditches were dug and filled in, and boulders were placed across the entrance.

All incidents resulted in contact with the RCMP and involved the court process either criminal or civil. [ 17 ] On October 16, 2005, the Jacksons sought and received from the Watermans, a deed of rectification indicating that the 2003 conveyance did not include the conveyance of a piece of land that “consisted of access to the property.” The deed then purported to convey “all the confirmor's (Waterman'

s) right, title and interest in that piece of land outlined on the attached survey.” This is an important point because of course the Waterman's could only convey their right, title or interest in whatever they owned. They could not convey more. [ 18 ] This is the very issue in the case before me: what did the Watermans have and what did they convey to the Jacksons? [ 19 ] The deed of conveyance clearly conveys the parcel of land, including most of the driveway that was constructed by Waterman. My estimate is that this shows at least 60 to 70 percent of the driveway on the survey being Waterman/Jackson property.

The other piece, the upper portion of the driveway connecting to route 80, is clearly shown to be on the property not conveyed to the Jacksons. [ 20 ] The burden is on the plaintiff to prove their claim on the balance of probabilities. As to ownership, the disputed piece of land (the upper portion of the driveway) was not conveyed to them. So I turn to consider what other ways they could have acquired an interest in the land.

Adverse possession [ 21 ] Case law suggests that to acquire an interest in property by adverse possession, there must be open, notorious, continuous and exclusive possession of the land in question. If successful, a claim of adverse possession results in the extinguishment of title in the other person. See Bussey v. Maher , 2006 NLCA 28 at paragraphs 41-43 ) [ 22 ] The facts show that the Watermans used the driveway for the entire time they owned the property from 1978 to 2003. I leave aside the issue of permission at this time.

There is no question that the use was open, notorious and continuous during this time period. However, it is just as clear that the Waterman's did not “exclusively” use the access from the highway crossing Harnum land to enter their own property. In my view, the claim fails on the basis of exclusivity, particularly given that a successful claim would result in the Harnums losing access to their own property.

Prescriptive Easement [23] The plaintiffs argue in the alternative for a prescriptive easement. What is a prescriptive easement and how does it arise? InCarew v. Rockwood, (1993) (NL SC), 112 Nfld.& P.E.I.R. 299 (Nfld. S.C.(T.D.)), Barry, J states as follows: 20. The main case in Newfoundland on the establishment of common law prescriptive easements is, coincidently, another case where theboundary between properties was in the middle of a driveway. In Henley v. Ryan (1980), 25 Nfld.& P.E.I.R.431 (Nfld. Dist.

Ct.), SteeleC.J.D.C. reviewed the authorities extensively and pointed out that, to support a prescriptive claim at common law, one must show "useras of right", which has been enjoyed neither by violence, nor secretly, nor with permission (nec vi, nec clam, nec precario). The usermust be continuous for a period long enough to give rise to a presumption that the right to use existed from time immemorial or, at least,to the presumption that the right arose from a lost modern grant. Both presumptions are legal fictions. [24] In Henley v Ryan, (1980) 25 Nfld. & P.E.I.R. 431 (Nfld. Dist.

Ct.), Steele, J. stated at paragraph 21: In order to support a prescriptive claim on the doctrine of prescription at common law, it must be shown to have been "user as of right",that is, having been enjoyed nec vi, nec clam, nec precario. Nec vi means that enjoyment must not be by violence; nec clam means thatthe enjoyment must not be secret and finally, nec precario requires that the enjoyment must not be permissive. [25] Steele, J also went on in Henley v. Ryan to deal with the effect of permission on a claim to a prescriptive easement 30.

Jackman at p. 115 states that user enjoyed precario, that is, with permission, cannot normally give rise to a prescriptive right.Whether user is permissive, or as of right, is a question of fact. User which begins in agreement may become as of right as illustrated byHealey v. Hawkins (1968) 3 All E.R.836. 31. A licence or permission to use another's land is fatal to a claim for a prescriptive easement.

Di Castri, Law of Vendor and Purchaser,2d at p. 550 states: Permissive use of another's land, no matter how long continued (i.e., a use or licence exercised in subordination to that other's ownership)is not adverse in the accepted sense so as to confer an easement by prescription. (Footnote omitted) 32.

Halsbury at p. 549, paragraph number 1190 under the heading of "Permission of servient owner" states: Enjoyment of an alleged right which has taken place with the licence of the owner of the servient tenement is not enjoyment as of right.For if a person who claims an easement or other incorporeal right has exercised the right, not in the manner in which a person rightfullyentitled to it would have used it, but has even occasionally asked the permission of the servient owner, no title can be acquired under thedoctrine of prescription. There is no such thing as a precarious easement.

If the servient owner can, whether the dominant owner likes itor not, put a stop to the alleged easement, there is no easement at all, because the very idea of right which necessarily underlies aneasement is negatived. (Footnotes omitted) 33. Cheshire states at p. 549: It is clear that permission of any sort, whether written or oral is fatal to a claim based upon prescription at common law, however longthe enjoyment may have lasted.... [26] Whether the use is permissive or as of right is a question of fact.

In the case before me, the facts are disputed as to whether theuse of the Harnum driveway was by permission or as of right. [27] Mr. Harnum, by a sworn affidavit, his son Carl Harnum, and Mr. Don Randell all testified that Mr. Robert Harnum gavepermission to Mr. Waterman to use a portion of his driveway to access the Pottle property, which Mr. Waterman wished to purchase,given that there was no easy or other access to the Pottle property. The surveyor, who also testified, was employed by both Mr.Waterman and Mr. Harnum to conduct a survey when Mr. Waterman was planning to sell the property. Mr.

Doyle testified that he spokewith both gentlemen who acknowledged at the time that Mr. Waterman was crossing a portion of Mr. Harnum's driveway to access hisown driveway. [28] Mr. Waterman acknowledged that he and Mr. Harnum were good friends and that he was part of the group that wished to try tofind and purchase land for the purpose of building a summer cabin. He acknowledged that he needed to cross the driveway of Mr.Harnum to access his property but stated that the only permission that he ever received was to park his trailer on Mr. Harnum's propertywhile constructing his cabin. Mr.

Waterman stated that he assumed at the time that portion of the driveway that he had to cross was “noman's land”. During the course of the trial he also spoke briefly about the fact that the land might be owned by highways as a roadreservation, but no evidence was entered to support this contention. At one point in his testimony he said Robert Harnum gave himpermission to use the driveway. He also said that the two driveways co-existed but that he did have to travel over the asphalt portion(constructed by Harnum) to get to his driveway. [29] It seems to me that Mr.

Waterman's position and his evidence varied during questioning at the trial and was inconsistent withthe survey evidence and that of Mr. Carl Harnum and Mr. Don Randell, as well as the affidavit evidence of Robert Harnum. Mr.Waterman's position and evidence was clearly aligned with the Jacksons, purchasers of the property, who after considerable difficulty

with using the driveway sought and received a deed of rectification. I find based on the evidence before me that Mr. Waterman did havepermission, or an agreement, from Mr. Robert Harnum to access the property he purchased for the purpose of building a summer cabin. [30] When the Jacksons purchased the property, they had a copy of the survey, which clearly showed a portion of the driveway thatthey used to access the property was situated on land that was not part of the land being conveyed. The survey and the legal descriptionshowed that the "disputed" land was on the adjacent Harnum property.

The purchaser has an obligation when purchasing land to satisfythemselves as to what they are purchasing and as in this case, where access to their property is shown to be within an adjacent propertyowner’s boundary, to either satisfy themselves as to any right-of-way or easement or simply take the risk that the previous arrangementwill continue without change. [31] There is no evidence that the Jacksons did anything to confirm the existing arrangement with Mr. Harnum. In his affidavit, Mr.Robert Harnum indicates that he told Mr. Jackson that he had no access to the property. Mr.

Carl Harnum gave evidence that heoverheard a conversation between his father and a Mr. Goobie, who was interested in the property, to the effect that there was no accessto the property. Mr. Jackson acknowledged talking with Mr. Harnum at the time of the sale of the property but said it was just afriendly conversation. The evidence was that Mr. Jackson informed Mr. Harnum that he intended to operate a bed and breakfastbusiness on the property. Mr. Carl Harnum's evidence was that this upset his father.

He was concerned about increased traffic, safety,and the fact that what was the use by a friend of a summer cabin was turning into a business enterprise. There is no evidence before methat Mr. Jackson and Mr. Waterman discussed the issue, at least not until October 2005 when the deed of rectification referred to earlierwas provided. [32] There is evidence of long use, approximately 25 years, of Mr. Harnum's driveway by Mr. Waterman. I have found that this usewas by permission. I also find, based on the evidence, that Mr. Harnum never withdrew his permission for Mr. Waterman to use thedriveway to access his land.

The permission given was oral. There is no evidence to show that the permission was granted in writing. The evidence of Mr. Randell demonstrates that the fact of permission being granted was discussed, both at the time and after the sale ofthe property to Mr. Waterman. [33] In most cases, use by permission has been considered fatal to a claim for prescriptive use. However, in Healey v. Hawkins,(1968) 3 All E.R. 836, there is discussion of a situation where a user which begins by agreement or permission can become as of right.

Itwas held in that case that once permission had been given, the user must remain permissive and was not capable of ripening into a rightsave where permission was oral and the user had continued for 40 or 60 years unless and until, having been given for a limited periodonly, it expired or, being general, it was revoked, or there was a change in circumstances from which revocation might fairly be implied.(See: page 841, paragraph D) [34] In Healey v Hawkins, which is a long use case, the court found that on the particular facts in that case, what had started as apermissive use had ripened into a use as of right.

In that case, the facts did not fall into one of the exceptions outlined by Goff, J. that theuse would remain permissive and not capable of ripening into an as of right use, where there was general permission which was revokedor there was a change in circumstances from which a revocation could be implied. [35] In the case before me, Mr. Harnum had granted a general permission to Mr. Waterman which was capable of being revokeddespite long use by Mr. Waterman.

The long use itself did not create a prescriptive easement, when its roots were in a permissive use,and the permission did not automatically extend to a new purchaser, particularly when the use of the property was changing significantly.There was notice on the deed of conveyance and, at least according to the affidavit of Mr. Robert Harnum, oral notice to the prospectivepurchasers that the access was across another’s property. [36] The plaintiffs have not established either ownership by adverse possession or a prescriptive easement over the portion of theproperty of the driveway used to access their property.

Easement by Estoppel [37] Counsel for the plaintiff argued that if I were to find that a prescriptive easement had not been made out then I should consideran easement by estoppel. In Carew v. Rockwood, Barry, J set out some principles to be considered in addressing easement by estoppel. In paragraph 29 he stated: In Central Trust Company v. Thistle (1986), 58 Nfld. & P.E.I.R. 1 (Nfld. Dist.

Ct.), Adams C.J.D.C., at p. 8, accepted the followingstatement of the doctrine of estoppel, set out by Anger and Honsberger: About all that can be presently said with confidence is that as a minimum requirement to raise an estoppel, the court must find that, inreliance upon some type of representation by another, the party seeking to raise the estoppel must have in some way acted to his or herdetriment. See also, Pearce v. Pearce (1986), (NL SC), 63 Nfld. & P.E.I.R. 321 (Nfld. T.D.) and Corner Brook v. C.U.P.E.(1984), 47 Nfld. & P.E.I.R. 46 (Nfld.

T.D.)., which take the same approach. [38] In order to raise an estoppel argument here, Mr. Jackson would have to show that he relied on some type of representationmade by another to his detriment. He has not indicated through his evidence on whose representation he relied, but obviously if he hadin fact relied on someone’s representation that he had a right of way over the driveway of Mr. Harnum, he has relied on it to his detrimentas he has had to build another access to the property situated wholly on his own land. One could assume that he relied on a representationfrom Mr.

Waterman as there is a deed of rectification attempting to convey access over the Harnum driveway some two years after hepurchased the property. Despite my concern that Mr. Jackson has not established that he relied on a representation at the time ofpurchase, I will move on to deal with factors that need to be considered in the easement by estoppel argument.

[ 39 ] In Carew v. Rockwood there was a submission by counsel that the courts of England have gone further in developing the doctrine of estoppel than the traditional statement of estoppel by representation set out above. In that case counsel urged the Court to adopt the modern English approach, which counsel submitted was to allow an easement by estoppel whenever that is necessary to avoid an unfair result. At paragraph 33, Barry, J states 33. Counsel for the Rockwoods submits that the applicable principle is that set out by Lord Denning M.R. in Amalgamated Investment & Property Co. Ltd. v.

Texas Commerce International Bank Ltd. , [1981] 3 All E.R. 577 , at p. 584, where he stated: The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietory estoppel, estoppel by representation of fact, estoppel by acquiescence and promissory estoppel.

At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence; estoppel cannot give rise to a cause of action; estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations.

When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have conducted the dealings between them, neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so.

If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands. [ 40 ] In the Rockwood case, at paragraph 56 , Barry, J concluded as follows: Assuming, but not holding, that these recent developments in the laws of England should form part of the law of Newfoundland, I, in any event, do not accept the submission of Counsel for the Rockwoods that the circumstances require or permit this Court to find an easement by estoppel, so as to avoid an unfair result.

Having found that Sidney Rockwood, Senior, agreed with James Tulk that the Rockwoods' use of the Tulk property would not result in any cloud upon the Tulk title, I conclude that, to find an easement for parking by estoppel, would be to create an unfair result, rather than avoid one. [ 41 ] In the present case, the plaintiff seeks an equitable remedy. In Megarry & Wade, The Law of Real Property, the authors note that this form of relief, proprietary estoppel, is discretionary in nature and also points out that the conduct of the parties is relevant.

At paragraph 13-022, page 743, the authors state: “A party seeking equitable relief must come with clean hands. Although trivial misconduct will not be fatal to his claim, the court will refuse relief if he has seriously misconducted himself. …” [ 42 ] There has been a considerable amount of inappropriate conduct in this boundary dispute. Unfortunately, this is not unusual in land disputes. What started as a gesture of friendship has now become a very serious situation. From nearly the outset, Mr.

Robert Harnum has used many self help remedies to stop the new owner, Jackson from using his driveway, apparently with the advice of legal counsel. Mr. Jackson, also with the advice of legal counsel, has been removing any barriers erected by Mr. Harnum to continue to access the driveway. Mr. Carl Harnum testified that his father was ill and distressed by the operation of a B and B where the summer cabin used to be and was worried about the safety of people entering and leaving through his driveway on the curve in the road. The clients of the B and B operation were not familiar with the area.

There was also more traffic coming and going. Mr. Carl Harnum testified that he and his wife and children were frequent visitors to his father’s home and that he was also concerned about the increased traffic. He also testified that Mr. Jackson was taking pictures of his family and that he used to come down the driveway and shine his headlights into the Harnum home. Eventually, Mr. Carl Harnum’s wife became concerned enough that she did not want to spend time there with the children and they stayed with her family in the general area. Mrs.

Jackson, in her testimony, offered some explanation as to why the headlights shone into the house next door when they were on their own property but neither Mr. nor Mrs. Jackson denied doing it. Since 2005 there has been a new access driveway built to allow the clients of the B and B to enter the property. There are now 3 cabins for rent as well as an apartment attached to the home of the Jacksons. [ 43 ] I conclude that granting an easement by estoppel would create an unfair result rather than avoiding one.

I find that it would be unfair to the Harnum family to allow an easement by estoppel because the use of the property has changed so dramatically.

Further, that a permission for access granted to a friend for a summer cabin that has been resisted and not extended to the new owner, should not be permitted to blossom into a permanent easement especially when the other factors of equity are considered. [ 44 ] In considering the remedy of easement by estoppel, I find that there is no easement for access to the use of the driveway established by estoppel either on the basis of representation, reliance and detriment or so as to avoid an unfair result.

OTHER CLAIMS [ 45 ] Often times parties can, by agreement, or for compensation work out a shared access arrangement to a driveway. In this case, such an agreement was not possible prior to the death of Robert Harnum. [ 46 ] There is now a separate access to the Jackson property. Exhibits and photos show it to be a reasonable access and perhaps even at a safer location to turn off route 80 to the tourist cabins.

The plaintiffs’ claim for damages to compensate for the construction of this access fails as their main claim was not successful. [ 47 ] There are now three additional tourist cabins on the Jackson property as well as their own redeveloped home. Mr. Carl Harnum, as representative of his father's estate, is not precluded from making any new arrangements with the Jacksons to allow access to their property via the Harnum driveway. Alternatively, he is free to close the access by erecting a suitable barrier on his boundary line, as per the Doyle survey. [ 48 ] Mr.

Harnum claims damages due to trespass by the Jacksons. This was pleaded in the prayer for relief rather than by counterclaim and he pleaded no facts to support the claim. [ 49 ] During the course of the hearing, Harnum's son, Carl Harnum, entered pictures of Mr. Jackson directing a backhoe, which

removed buried corrugated culverts running down the property to deal with runoff. Mr. Carl Harnum entered correspondence from the Minister of Works and Services dated March 18, 1997 which confirmed the drainage problem and who agreed to supply 20 metres of pipe. (Exhibit C.H. No. 5). Mr. Harnum, Sr. paid $400 to have the culvert installed which Mr. Jackson dug up leaving an exposed ditch. Mr. Carl Harnum also entered a written estimate of the cost to purchase new pipe and labour for $7,400. He claims the culvert/pipe was installed on his father's land. Mr.

Jackson agrees that he had the culvert removed, but claims it was installed on his property. The defendants have inadequately pleaded this claim and have not established by evidence where the culvert was laid. In fact, some photographs would appear to show that the culvert was well outside the fence line, which was claimed as the Harnum boundary line. The defendants have not proved either the trespass or that the culvert was on their property and their claim for damages is therefore, dismissed. [ 50 ] Mr. Carl Harnum also submitted an estimate for the installation of 100 feet of fencing in the amount of $1,200.

As with the previous claim there is inadequate evidence for me to find the trespass by Mr. Jackson took place or that he removed the fencing and further that 100 feet of fencing was removed and therefore this claim for damages is also dismissed.

DISPOSITION [ 51 ] The plaintiffs’ claim for a declaration that the plaintiffs are entitled to full use and ownership of the driveway running from their land to that of the main highway through Whiteway without interference from the defendant is dismissed as are the damage claims associated therewith. [ 52 ] The defendant’s claim for damages associated with trespass to his property is dismissed. [ 53 ] As the defendant has been successful in resisting the claim of the plaintiffs, he shall be entitled to his costs on a party and party basis. _____________________________ Deborah E. Fry Justice