douglas m. rotchford PLAINTIFF AND: bernard rotchford FIRST DEFENDANT AND: waynE mahoney v. elsie Mahoney, 2011 NLTD 109

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : Rotchford v. Rotchford , 2011 NLTD(G) 109 Date : 201108 15 Docket : 200701T3181 BETWEEN: douglas m. rotchford PLAINTIFF AND: bernard rotchford FIRST DEFENDANT AND: waynE mahoney AND elsie Mahoney SECOND DEFENDANTS ___________________________________________________________________ Before: The Honourable Mr. Justice Robert M. Hall ___________________________________________________________________ Place of Hearing: St.

John’s , Newfoundland and Labrador Dates of Hearing: March 23, 2009; January 27, 2011; and June 6, 7, 8, 2011 Appearances: Randell L. Wellon Counsel for Plaintiff A. Douglas Moores, Q.C. Counsel for First and Second Defendants Authorities Cited: STATUTES CONSIDERED: Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 . REASONS FOR JUDGMENT

Hall, J. : INTRODUCTION [ 1 ] The Plaintiff, Douglas M. Rotchford, claims that the Late Martin Rotchford was, during his lifetime, the owner in possession of a parcel of land situate at Conception Harbour. This parcel of land is described in a survey completed by the land surveying company of Jerrett & Associates Ltd. in December of 1982 and the survey indicates that the property, which was the subject of it, comprises of some 1.084 hectares in area (the “Subject Property”). [ 2 ] Martin Rotchford died on May 1, 1994, with a Will and letters of probate were issued on March 24, 2000.

The Plaintiff says that Richard P. Morrissey, as executor of the Estate of Martin Rotchford, executed a Deed of Conveyance dated April 6, 2009, wherein on behalf of the Estate of Martin Rotchford he confirmed and conveyed the 1.084 hectare parcel of land to the Plaintiff and that by the same deed Douglas F. Rotchford, the father of the Plaintiff, Douglas M.

Rotchford, also conveyed any beneficial interest that he held in the Subject Property to the Plaintiff. [ 3 ] The First Defendant in this matter asserted ownership of the Subject Property and by a Deed dated September 12, 2006, and registered with registration number 154060 at the Registry of Deeds for the Province of Newfoundland and Labrador the First Defendant conveyed lands, which included the Subject Property, to the Second Defendants for the sum of $2,000.00.

The Plaintiff asserts that the First Defendant had no legal or beneficial interest in the Subject Property, except insofar as he was entitled to a right-of-way across the Subject Property, and that the Deed of Conveyance to the Second Defendant is thus a slander of the Plaintiff’s title to the property and a cloud upon it, and that the Deed constitutes a wrongful conversion of the Plaintiff’s lands to the benefit of the First Defendant. [ 4 ] As a result of these actions, the Plaintiff contends that he has suffered damages for which the Second Defendant is liable to the Plaintiff and the Plaintiff seeks an order for payment of such amounts as may be assessed against the First Defendant for special and general damages, as well as pre- and post-judgment interest and costs of the within action on a solicitor and client basis. [ 5 ] As against the Second Defendants, the Plaintiff asserts that he has suffered damages by reason of the Second Defendants holding themselves out as owners of the Subject Property and seeks special and general damages against them as well as an order that the Deed of Conveyance dated September 12, 2006, wherein the First Defendant conveyed property including the Subject Property to the Second Defendants, be declared null and void and of no effect insofar as that deed purports to convey an interest in the Subject Property, except insofar as the Second Defendants shall continue to have the use of the right-of-way over the Subject Property hereinbefore described.

Again, a pre- and post-judgment interest cost on a solicitor and client basis is sought against the Second Defendants. [ 6 ] In the Defence filed by the First and Second Defendants, the First Defendant asserts that the Will of Nicholas Rotchford, Jr. was executed in 1964, some 25 years before the Last Will and Testament of Martin Rotchford, and was probated on August 1, 1968. The First Defendant also asserts that land referred to in the Will of Martin Rotchford as being “the Pen” is but a small portion of the Subject Property.

The First Defendant further asserts that he maintained fences on his lands, which were originally placed there by his father at least 50 years prior to the Statement of Defence, and that the subject lands were cultivated by Nicholas Rotchford, Jr. and the First Defendant for many years. The Second Defendants assert that the First Defendant had an unbroken chain of title going back over 60 years and that the Second Defendants acquired that title from him via the aforementioned Deed in 2006.

They ask that the action be dismissed as against all Defendants. [ 7 ] Martin Rotchford and Nicholas Rotchford, Jr. were brothers. Martin was the great-grandfather of the Plaintiff. The Plaintiff’s father, Douglas F. Rotchford, was the grandson of Martin Rotchford but he had lived for many years with his grandfather, Martin Rotchford, and as a result was treated by Martin Rotchford as his son rather than his grandson. As a result, the Plaintiff, Douglas M. Rotchford, often refers to Martin Rotchford as his grandfather as opposed to his great-grandfather.

Land Usage [ 8 ] On the 13th of October, 1983, Martin Rotchford filed a Declaration of Ownership of the 1.084 hectare parcel of land in the Registry of Deeds for the Province of Newfoundland and Labrador. It is registered at volume 3882, at pages 193-203. In it he states, “I have owned and operated the said land for the past 84 years.” Martin Rotchford was born in 1899. It is therefore unlikely that he owned and operated the said land for the full 84 years of his life up to the time that he filed the Declaration of Ownership.

However, evidence was given by numerous witnesses of the usage of the property by Martin Rotchford and members of his immediate family. There was produced in evidence a photocopy of the Will of one Nicholas Rotchford, Sr. who was the father of Martin Rotchford and of Nicholas Rotchford, Jr. In that Will it appears that Nicholas Rotchford, Sr. owned several parcels of land within the Cemetery Road area in Conception Harbour in the vicinity of Weavers Pond. He made a division of two sections of property with one being at the foot of Weavers Pond and one being at the north of Weavers Pond.

He divided these two parcels such that Martin Rotchford received one-third of the parcel at the foot of Weavers Pond as well as one-third of the parcel on the north side of Weavers Pond. I am satisfied that the Subject Property comes from the piece of land on the north side of Weavers Pond. Similarly, Nicholas Rotchford, Sr. bequeathed to his son, Nicholas, Jr. “one-third of each of the two pieces of land above described”, which I am satisfied is the land at the foot of Weavers Pond and on the north side of Weavers Pond.

Thus, Nicholas Rotchford, Jr. and Martin Rotchford each received one-third of these two parcels of property. There was no evidence before me as to what the size of these parcels of land might have been before the division of the properties into thirds by Nicholas Rotchford, Sr. occurred.

The Will of Nicholas Rotchford, Sr. was not probated and no formal deeds to Martin Rotchford or Nicholas Rotchford, Jr. were presented in evidence. [ 9 ] As mentioned earlier, the Last Will and Testament of Nicholas Rotchford, Jr. was probated in August of 1968 and in it he states: … I devise and bequeath unto my son, Patrick Bernard Rotchford, all that portion of land owned by me and located at (Rhodney’s [sic] Marsh Hill.

The Patrick Bernard Rotchford referred to in that Will is the First Defendant. Again, no formal deeds of conveyance from the Estate of Nicholas Rotchford, Jr. were made to Patrick Bernard Rotchford, the First Defendant, and, again, there is no evidence produced other than the 1.084 hectares surveyed parcel as to where or what size the land was which was purported to be bequeathed by Nicholas Rotchford, Jr. to the First Defendant. [ 10 ] Douglas F. Rotchford is the father of Douglas M. Rotchford. Martin Rotchford was his grandfather and Douglas F. Rotchford was raised by Martin and his wife, Rose.

He called Martin “Pop” and was raised by Martin as Martin’s son. Nicholas Rotchford, Jr. was the First Defendant’s father. Nicholas Rotchford, Jr. was the father of both Martin and the First Defendant, Bernard Rotchford. Douglas F. Rotchford did not know Nicholas Rotchford, Sr., he having been born after the death of Nicholas Rotchford, Sr. Douglas F. Rotchford was born in 1949. With respect to the 1.084 hectare parcel of land claimed by his son, Douglas M. Rotchford, Douglas F. Rotchford described this property as being generally known in the family as the “Hill”.

The land was basically used in three different ways. The bottom of the property closest to what is now Cemetery Road was what was known as the “Pen”. This parcel was used to graze and restrain animals. A small corner of this area was further fenced off from the animals and was used as a cabbage patch. The middle portion of the property was used for the growing of hay and the top portion was set out in various small gardens in which potatoes, strawberries and other crops were grown. All of the land was kept fenced by Martin Rotchford, he having maintained fences erected earlier. Douglas F.

Rotchford referred to the land described in the Will of Nicholas Rotchford, Jr. bequeathed to the First Defendant and named Rodney’s Marsh Hill as land which was situate at the rear and outside of the boundaries of the 1.084 hectare Subject Property. There was a marsh on the north side of the Subject Property known as “Rodney’s Marsh” and there were portions of that used by Nicholas Rotchford, Jr. and his son, Bernard, the Second Defendant. In 1984, when Martin Rotchford had the land surveyed, Douglas F. Rotchford cut the boundary lines with the aid of Richard Wade, Frank Barnes and Leo Mahoney.

This work only took a couple of days and was intended to open up the boundary lines which existed previously so as to give a clear view for the surveyor to do his work. Douglas F. Rotchford never saw the First Defendant on the property and the First Defendant never complained to him about the lines being cut. [ 11 ] Douglas F. Rotchford’s memory of the usage of the land by Martin Rotchford commences when he was about five years old. That would have been in 1954. He said that the whole of the family would go up to the land to work and grow vegetables.

He told of there being at various times eight to twelve goats kept on the bottom portion of the land and, in addition, horses and sheep were kept there. The last horse was named Star. Douglas helped with the gardens, starting when he was 12 to 14 years’ of age, setting potatoes and harvested them in the fall. He did not have much involvement with the pasture. In the early 1970’s the farming ceased but up to that time, in addition to Douglas F. Rotchford helping Martin, his older sisters assisted with the land. Douglas F. Rotchford did not recall the First Defendant ever working the land.

He said that the First Defendant kept a horse in the Pen area because there was no fence between the rear of the Subject Property and the First Defendant’s property at Rodney’s Marsh and that the First Defendant had no garden on the Subject Property and did not erect any fences. [ 12 ] Douglas F. Rotchford further stated that Martin Rotchford gave up the farming when Douglas F. Rotchford went to work full time and was no longer able to assist Martin who was then getting advanced in age. Numerous other witnesses testified with respect to the use of the Subject Property by Martin Rotchford.

These included sisters of Douglas F. Rotchford as well as a nephew of the First Defendant, Bernard Rotchford. These witnesses described the land beyond the Subject Property as being that of Bernard Rotchford and known as Rodney’s Marsh. They confirm a lot of fencing of the Subject Property being done by Douglas F. Rotchford together with Martin Rotchford. They also confirm that the First Defendant, Bernard Rotchford, never worked the Subject Property.

This was confirmed by other witnesses such as Jim Dalton and Frank Barnes, both of whom confirmed that the land behind or outside the boundaries of the Subject Property was the property known as Rodney’s Marsh and that that is the property Nicholas Rotchford, Jr. conveyed to the First Defendant. [ 13 ] Only one witness testified for the First Defendant other than the First Defendant himself. That individual was John Curran. Shown aerial photos of the area, Mr. Curran was asked to identify the area where he had worked on the property of Bernard Rotchford, the First Defendant, cutting wood, etc. and which Mr.

Curran understood to be owned and claimed by Bernard Rotchford. He was totally unable to identify it as the Subject Property and indeed, on all occasions when asked to point to where the property was that he cut the wood on and which was owned by the First Defendant, he pointed to land well outside the boundaries of the Subject Property. [ 14 ] The First Defendant himself testified that all of the other witnesses were lying and that he and his father maintained all of the fence lines on the Subject Property and that this was the property which was conveyed to his father by Nicholas Rotchford, Sr.

He asserts that all of the gardens on the property were cleared and maintained by his father, Nicholas Rotchford, Jr., and himself. Conclusion [ 15 ] All of the witnesses for the Plaintiff tell a consistent story of Martin Rotchford, his wife and children fencing and using the Subject Property. Each describes in varying levels of details the types of uses and portions of the Subject Property where the various farming activities and usages occurred. There are the normal and to be expected differences in their recollections, either of time, type of uses, areas in which the various uses occurred, etc.

However, these differences are not significantly materially different and do not detract from the general story which is that from at least the early 1930’s onward to the 1970’s the land was fenced and controlled by Martin Rotchford. The usage was typical of rural Newfoundland lands, i.e., growing of hay, growing of vegetables, woodcutting, and animal grazing. Fences were continuously maintained by Martin Rotchford and family members up to the 1970’s when increasing age forced Martin to cease farming at the time when Douglas F. Rotchford got full-time work.

Not much use was made of the land since that time and the fences are now in disrepair. [ 16 ] All of the witnesses acknowledge that there was some penning of horse in the Pen by Bernard Rotchford as well as usage of the right-of-way depicted on the Jerrett and Associates survey. The right-of-way was used to gain access to Bernard Rotchford’s land at Rodney’s Marsh. [ 17 ] In contrast to the straightforward and frank demeanour of the Plaintiff’s witnesses, the whole demeanour of the First Defendant was argumentative.

He claimed that the Subject Property was worth $70,000.00, nonetheless, he sold it for a mere $2,000.00. His explanation of how the Subject Property came to be sold is bizarre, asserting that “some woman” whom he knew actually advertised the

property for sale. He even acknowledged that he sold the land not for the money, stating that at his age money was of no use to him. He also stated that he in fact “gave it away”. I am satisfied that the First Defendant’s motive in conveying the Subject Property in the manner and for the amount which he received detracts from his credibility as to the ownership of the Subject Property and the usage by him.

He is simply not credible and the only witness whom he produced who was independent of him could not even properly identify the Subject Property. [ 18 ] I am therefore satisfied that the First Defendant has no legal or possessory title or interest in the Subject Property by deed, will, possession or otherwise.

I am also therefore satisfied that the conveyance dated the 12th of September 2006 from Patrick Bernard Rotchford, the First Defendant, to Wayne Mahoney and Elsie Mahoney, the Second Defendants, registered on the 16th of October 2006 as registration number 154060 is void and of no effect due to a lack of title thereto on the part of Bernard Rotchford. [ 19 ] This matter was not commenced as an action under the Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 , seeking that the Court certify the title of Douglas M. Rotchford to the Subject Property.

Rather, the Plaintiff’s action was simply to defend against what he regarded as trespass and defamation of his title by reason of the activities of the First Defendant and the Second Defendants in asserting title thereto.

Therefore, in the circumstances of this case, I can only determine whether there has been sufficient possession of the Subject Property by the Plaintiff and his predecessors in title, as to maintain an action in trespass against other parties other than the true owner, to show an intent to possess the land in dispute and that the possession thereof was of a character recognized by law as sufficient to support such an action in trespass against any party other than the true owner. By making this statement, I am not concluding that Martin Rotchford was not the true owner thereof.

The evidence before me is simply that of possession and it is on that basis that this judgment is made. [ 20 ] I reserve nevertheless from this Declaration a right-of-way in favour of the First Defendant and the Second Defendants in the area and dimensions set out in the survey plan of Jerrett & Associates Ltd. attached to the Declaration of Ownership of Martin Rotchford filed in the Registry of Deeds.

Damages [ 21 ] I am satisfied that damages in the sum of $2,000.00 should be awarded against the First Defendant, Bernard Rotchford, for the interference with the usage of the Plaintiff’s property. [ 22 ] Costs in this matter are awarded in favour of the Plaintiff against the First Defendant on a party and party basis using the scale in effect before June 30, 2011. [ 23 ] I make no judgment nor award any costs against the Second Defendants. _____________________________ Robert M. Hall Justice