Peter Jefford Plaintiff And: Warren Eason Defendant And: ROBERT Eason Defendant (Discontinued) And: DORIS METCALFE Defendant (Discontinued), 2022 NLSC 84

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jefford v. Eason , 2022 NLSC 84 Date : May 19, 2022 Docket : 201506G0167 Between: Peter Jefford Plaintiff And: Warren Eason Defendant And: ROBERT Eason Defendant (Discontinued) And: DORIS METCALFE Defendant (Discontinued) Before: Justice Peter A. O'Flaherty Place of Hearing: Clarenville and St. John’s, Newfoundland and Labrador Dates of Hearing: April 12-14 and April 18, 2022

Summary: The Plaintiff brought an action for a declaration of good title to a disputed parcel of land under Rule 7.16 of the Rules of the SupremeCourt, 1986. Held: The Court has no authority under Rule 7.16 of the Rules of the Supreme Court, 1986 to grant a declaratory judgment that a partyhas good title to or is the beneficial owner of land.

Accepting that the Court has authority under the Rules to grant a declaratory judgmentthat the Plaintiff had a better or superior title than the Defendant, the Court declined to exercise its discretion to make such a declarationwhere no good reason was given for the 20 year delay in pursuing the declaration, and the Defendant had suffered prejudice from thepassage of time. The evidence at trial did not establish the Plaintiff had any entitlement to a declaration of better title to the disputedproperty.

The Plaintiff’s action for a declaration was, by its object and effect, an action to recover land and was statute barred under s. 7of the Limitations Act. The Plaintiff’s action was dismissed with costs. Appearances: James D. Hughes, Q.C. Appearing on behalf of the Plaintiff Ronald A. Cole, Q.C. Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: George v. George, 2010 NLTD 64; Petten v. Petten (1999), (NL SC), 177 Nfld. &P.E.I.R. 1, 543 A.P.R. 1 (Nfld. S.C.T.D.); Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2A.C. 438 (U.K. H.L.); Wickham v.

Wickham Estate (1977), 17 Nfld. & P.E.I.R. 452, 46 A.P.R. 452 (Nfld. S.C.T.D.); Hollett v. Hollett(1993), (NL SC), 106 Nfld. & P.E.I.R. 271, 334 A.P.R. 271 (Nfld. S.C.T.D.); Cook v. Cook (1977), 14 Nfld. &P.E.I.R. 237, 33 A.P.R. 237 (Nfld. S.C.T.D.) STATUTES CONSIDERED: Quieting of Titles Act, R.S.N.L. 1990, c. Q. 3; Limitations Act, S.N.L 1995, c. L-16.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT O'Flaherty, J.: INTRODUCTION [1] This is an action for a declaration of title to a parcel of land located in the Town of Conception Bay South, Newfoundland andLabrador (“NL”). The parcel of land in dispute is 0.623 hectares in area (the “Disputed Property”).

It is completely treed as was evidentwhen I took a view of the land with the parties. [2] The Plaintiff claims that the Disputed Property is the northern part of a 0.840 hectare parcel that was conveyed to him by hisparents, Bruce Jefford and Hazel Jefford, in an indenture dated March 30, 2015 and registered at the Registry of Deeds on April 8, 2015.The Plaintiff claims that his predecessor in title, Mr. Bruce Jefford, acquired the Disputed Property from Mr.

Heber Tilley by anindenture dated September 24, 1973. [3] The Defendant claims he has held title to the Disputed Property since an indenture dated September 11, 1995 was registered atthe Registry of Deeds on September 19, 1995. In that indenture, from Mr.

Robert Eason, acting in his capacity as the Administrator ofthe Estate of Jacob Dawe and the Administrator De Bonis Non of the Estate of Robert Dawe, as Vendors, and Robert Eason, WarrenEason (the Defendant), and Doris Metcalfe, as Purchasers, a parcel of land in the long possession of the late Jacob Dawe and RobertDawe, devised to them by their father Abram Dawe, was divided into three portions. The Defendant was conveyed the easterly portion,which is the 0.623 hectare parcel described in

Schedule “C”. [4] This case is about which of the respective claims of title to the Disputed Property is superior. It is also about whether an actionfor a declaration of title to land in the province is authorized under Rule 7.16 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c.

42, Sch. D, (the “Rules”), and whether this action was commenced within the applicable limitation period. [5] In terms of the form of the action, in his Statement of Claim issued December 15, 2015, the Plaintiff sought “a Declaration ofTitle to the portion of land in dispute declaring that the Plaintiff is the beneficial owner of the land” and an “Order preventing theDefendants from trespassing”.

At trial the Plaintiff requested only a declaration that he has a “better” title to the Disputed Property thanthe Defendant. [6] With respect to the action for a declaration of good title and beneficial ownership as originally framed, the Plaintiff is met withthe difficulty that this Court has previously decided it does not have authority under Rule 7.16 of the Rules of the Supreme Court, 1986,to grant a declaratory judgment or order that a person is the beneficial owner of property in this province, or to declare that a person hasgood title to property in this province. See: George v.

George, 2010 NLTD 64, citing Petten v. Petten (1999), (NLSC), 177 Nfld. & P.E.I.R. 1, 543 A.P.R. 1 (Nfld. S.C.T.D.) These authorities hold that entitlement to such an order must be sought underthe procedure set out in the Quieting of Titles Act, R.S.N.L. 1990, c.

Q. 3, (the “Act”), which provides for a statutory regime by which thecourt’s jurisdiction to declare ownership of and title to land is exercised in the province. [7] I agree, both as a matter of authority and of principle, that Rule 7.16 does not give this Court any jurisdiction to grant adeclaration that a party is the beneficial owner of land or has good title to property in the province. The argument before me howeverproceeded on the basis that a declaration of “better” or “superior” title is available under Rule 7.16.

I was satisfied based on theauthorities to proceed on this basis, although such a ruling would not be a judicial determination of either party’s beneficial ownership of,or “good” title to, the Disputed Property. [8] Having heard the evidence, I would decline to exercise my discretion to make a binding declaration on the question whetherthe Plaintiff has a superior title to the Disputed Property.

It would result in material prejudice to the Defendant to decide that questionnow when the Defendant’s surveyor Robert Power, NLS, and other important witnesses, including the two deponents of the Affidavits ofPossession attached to the 1995 indenture, have died or are unavailable.

The discretionary remedy of a declaration of right is notavailable to the Plaintiff in the circumstances because the prejudice to the Defendant directly resulted from the Plaintiff and hispredecessor in title not commencing the action before December 15, 2015. [9] If a binding declaration of superior title was otherwise available, I would have found that the Plaintiff did not establish hisentitlement to the declaration sought. The evidence did not establish that Mr. Bruce Jefford acquired the Disputed Property from Mr.Heber Tilley by the indenture dated September 24, 1973.

On the principle nemo dat quod non habet: one cannot give what one does nothave, the Plaintiff’s claim fails. If his father took no title to the Disputed Property from Heber Tilley, the Plaintiff cannot have acquired a“better” title than the Defendant in 2015. [10] The Defendant further claimed that the Plaintiff’s action is statute barred as it seeks the recovery of land and was commencedby the Plaintiff on December 15, 2015, long after the ten year limitation period under s. 7 of the Limitations Act, S.N.L 1995, c. L-16.1,(the “Limitations Act”), had run is course. The Plaintiff, on his

interpretation of the evidence, claimed that the limitation defence was notapplicable as, by 1995, his father was already in constructive possession under the 1973 deed. [11] Based on my findings, I conclude that the Defendant was in constructive possession of the whole of the Disputed Propertyunder colour of right from September 19, 1995. The Plaintiff’s action, by its object and effect, is an action to recover the DisputedProperty.

As neither the Plaintiff nor his predecessor in title pursued the available actions for recovery of the land within the limitationperiod of ten years, I would find that it is statute barred under s. 7 of the Limitations Act. [12] The Plaintiff’s action for a declaration of title must therefore be dismissed. IS DECLARATORY RELIEF AVAILABLE? [13] This is an action for declaratory relief. No other relief is claimed.

Rule 7.16 of the Rules of the Supreme Court, 1986 providesas follows: 7.16 No proceeding shall be open to objection on the ground that only a declaratory judgment or order is sought thereby, and the Courtmay make binding declarations of right whether or not any consequential relief is or could be claimed. [14] The wording of our Rule 7.16 closely tracks that of O. 25, R. 5 of the Rules of the Supreme Court in England.

Because thegenesis of the modern remedy of a declaratory judgment or order lies in the English Rules, the authorities of this Court still refer to theleading English decisions to interpret the scope of the remedy. [15] In Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438 (U.K. H.L.), LordDunedin identified three criteria for the exercise of a court’s discretion to grant a declaration under Order 25, R. 5: 1. The question must be a real and not a theoretical question; 2. The person raising it must have a real interest to raise it; and 3.

The person must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to opposethe declaration sought. [16] The authorities confirm that a binding declaratory judgment or order is an important procedural device for ascertaining anddetermining the rights of parties or determining a point of law in the absence of consequential relief.

They further confirm however thatthe Court’s power to make such a declaratory order is always a discretionary one, and it should not become a means by which litigantsmay skirt the accepted principles upon which the Court exercises its jurisdiction in particular circumstances. [17] The subject matter of this action for a declaration of title appears to provide an example of such a circumstance. In Petten, an

action for a declaratory order that a title be declared invalid, Hall, J. held that Rule 7.16 did not give this Court any authority to make adeclaration of title. At paragraphs 22 and 23 Hall, J. stated: [22] Judicial investigations of and declarations of title are governed by the Quieting of Titles Act, R.S.N. 1990, c. Q-3.

Section 3 ofthat Act gives to a person claiming to be the owner of the land an entitlement to have his or her title judicially investigated and declared.That Act establishes procedures requiring, inter alia, notification to the public of the application for a quieting of title certificate andnotice to known adverse claimants. A certificate of title sealed, signed and registered in the Registry of Deeds is, under that Act,conclusive and the title mentioned shall be considered absolute and indefeasible on and from the date of the certificate as regards theCrown and all persons.

This is subject only to certain encumbrances, charges, exceptions or qualifications mentioned in the certificate. [23] In light of the very detailed requirements of the Quieting of Titles Act, it is difficult to conceive that rule 7.16 of the Rules ofCourt is intended to authorize the exercise of a parallel power to declare absolute title to real property as against the whole world, withoutthe necessity of the advertisements and compliance with the other formalities of the Quieting of Titles Act.

I find that it does not. [18] In George, at para.5, Handrigan, J. stated the rule succinctly: [5]…This Court does not have authority under Rule 7.16 (authorizing applications for declaratory judgments or orders) or otherwiseunder the Rules of Court, 1986 to declare that applicants for declaratory judgments have good title to their property. A declaration thatthey have a good title can only be made under the Quieting of Titles Act: See Petten v.

Petten, (NL SC), 1999CarswellNfld 104, 177 Nfld. & P.E.I.R. 1, 543 A.P.R. 1, 177 Nfld. & P.E.I.R. 1, 543 A.P.R. 1 (NLTD). [19] The rule in Petten and George is based on the primacy in land title matters of the Act, which is a detailed codification of thelaw regarding the investigation and declaration of land title by this Court. The legislation gives a statutory entitlement to acomprehensive investigation of questions of the beneficial ownership of land, and authorizes a judicial declaration of good title as againstall the world, subject to compliance with the statutory notice provisions.

Where the statutory right is exercised, the Court has authority toinvestigate and decide upon the nature of a party’s equitable title, the validity of which depend upon possession and use of the land, andupon the nature of his legal title and the import of any documents of title, registered or otherwise. [20] Under the Act the Court is also permitted to relax the normal rules of evidence in deciding a question of title.

A judge maytherefore rely upon evidence on a question of title which is not receivable or sufficient in point of strict law, if the evidence satisfies thejudge of the truth of the fact intended to be established. This is important in cases in which a question of title depends on the history ofthe occupation and use of ungranted land outside of the memory of living persons. [21] Finding that Rule 7.16 grants a parallel authority for this Court to make a declaration of a good “quasi-title” in a lis between thePlaintiff and Defendant may be a practical and cost-effective solution, but issues of principle arise.

In making the findings necessary todeclare such a title, the normal rules of evidence would have to apply, and the extensive body of case law decided under the regime ofthe Act would be distinguishable. Findings on title may interfere with the jurisdiction exercised by the Court when faced with a petitionunder the Act.

The successful party may rely upon such a declaration as a judicial determination of his ownership, or acquisition of a“good” title to the Disputed Property, which is not available. [22] As a matter of authority and of principle, I would therefore follow the rule as expressed in George and Petten and find thatRule 7.16 does not authorize the Plaintiff’s action for a declaration of good title to the Disputed Property. [23] This brings me to whether Rule 7.16 provides any authority for this Court to grant a declaration that the Plaintiff has a “better”or superior title to the Disputed Property than the Defendant.

As noted above, at trial the Plaintiff only requested a declaration that he hasa “better” title to the land in dispute than the Defendant. The briefs filed by the Plaintiff and the Defendant both addressed the issuebefore me as which party had the “better” or superior title to the Disputed Property. [24] When the jurisdiction of the Court to grant such a declaration was raised, the Plaintiff characterized the issue in this action astwo parties with a disagreement as to who has a “better” title to land asking the Court to answer that particular question.

On its face thisseems a reasonable request, as parties should where possible have recourse to the Court for the resolution of their dispute, and there areother authorities in which this Court has adjudicated the issue. The Plaintiff submitted that this action was not taken as a quieting of titlesapplication, because that would involve the Crown. The Plaintiff seeks a declaration of “better” title instead because, as a practicalmatter, the Crown will not give a quit claim grant to the Disputed Property unless and until the parties have this dispute resolved. [25] The declaration would also involve a narrow point.

The question of whether the Plaintiff has a superior title than the Defendantreally turns on whether the September 24, 1973 indenture from Heber Tilley to Bruce Jefford included the Disputed Property. This issuewas fully argued before me. This point meets the criteria for a declaration of right in Russian Commercial: The question is a real one; thePlaintiff has a real interest in that question as the holder of a registered deed that includes a survey of the Disputed Property; and theDefendant, Mr.

Eason, is a “proper contradictor” for the question as he has a registered indenture to the Disputed Property and has a trueinterest to oppose such a binding declaration. [26] I am satisfied that Rule 7.16 grants authority to the Court to make a declaration of “better” or superior title in favor of thePlaintiff.

Assuming it was appropriate to make such a binding declaration, it would not amount to a judicial determination of eitherparty’s beneficial ownership of, or “good” title to, the Disputed Property. [27] Having heard the evidence, I would decline to exercise the discretion in the Court to make a declaratory order in this case. Theevidence established that the Defendant’s surveyor who completed the survey work in 1993-1995, Robert Power, NLS, is deceased.Both deponents of the Affidavits of Possession attached to the 1995 indenture, Alexander Tilley and Annie Hayes, have also died, as hasMr.

Robert Eason’s aunt, Margaret Monchy Morgan, who lived in the old homestead formerly owned by the late Jacob Dawe. I amsatisfied that the Defendant would be materially prejudiced because of the unavailability of the evidence of the witnesses not to mentionthe impact on the quality of the available evidence. A declaration of “better” or superior title is not an appropriate exercise of discretion

in this case. [ 28 ] I am therefore satisfied that the Plaintiff’s claim in this action for a declaration of title under Rule 7.16 of the Rules of the Supreme Court, 1986 must be dismissed. DOES THE PLAINTIFF HAVE A BETTER TITLE TO THE DISPUTED PROPERTY? [ 29 ] In the event my analysis of the law is incorrect, I will address the issue of whether the Plaintiff has proven his entitlement to a binding declaration that he has a “better” title to the Disputed Property than the Defendant.

It is simpler to address that issue before dealing with the Limitations Act because the Plaintiff claims that his father was in constructive possession of the Disputed Property under the 1973 deed, and that the limitations defence turns on which party was in possession first. [ 30 ] The Plaintiff conceded that he has no claim to the Disputed Property based on long possession. The Plaintiff’s claim therefore rests on the foundation that Mr. Bruce Jefford acquired title to the Disputed Property by the terms of the September 24, 1973 indenture from Mr. Heber Tilley.

The Plaintiff relies upon the terms of the indenture, which described the land as “the same as now enclosed by fence,” documentary evidence of adjacent titles, opinion evidence and the viva voce evidence of his father Mr. Bruce Jefford and a local resident, Mr. Larry Hoskins, to prove that Mr. Bruce Jefford acquired title to the Disputed Property in 1973. [ 31 ] The Defendant submits that he is not obliged to prove or disprove anything in this case.

The Defendant’s position is that his grandmother, Mabel (Dawe) Eason, who was the daughter of Jacob Dawe and the brother of Robert (Bobby) Dawe, provided a copy of the will of Abram Dawe to Mr. Robert Eason showing that there was family land in Kelligrews. Mr. Robert Eason then took steps to have the land surveyed by Robert Power and the title to the land properly registered by a lawyer. [ 32 ] As to the Plaintiff’s claim of title through Mr. Heber Tilley the Defendant relies on the principle nemo dat quod non habet : one cannot give what one does not have.

The Defendant submits that the Plaintiff did not prove that Mr. Bruce Jefford acquired title to the Disputed Property from Heber Tilley, and without proof that his father acquired title from Heber Tilley he cannot have a “better” title than anyone. [ 33 ] The Plaintiff’s first witness was Mr. John D. Berghuis, NLS. Mr. Berghuis has been a practicing land surveyor in this province for 39 years and currently practices in Clarenville, NL. He informed the Court he has been qualified to provide opinion evidence in land surveying on between 10-15 previous occasions. Mr.

Berghuis was qualified by me to provide opinion evidence on the

interpretation of survey documents, including survey markers and descriptions, the

interpretation of aerial photography, and general surveyor’s practice and procedure. [ 34 ] Mr. Berghuis entered his report in evidence, along with copies of registered deeds relevant to his report, including the indenture from Heber Tilley to Bruce Jefford in 1973, registered deeds to two adjoining properties, the indenture from Bruce and Hazel Jefford to Peter Jefford in 2015, and the 1995 indenture from Robert Eason, as Administrator, to Robert Eason, Warren Eason, and Doris Metcalfe, which included the 0.623 hectare parcel described in

Schedule “C”. [ 35 ] Having confirmed that

Schedule “C” is the Disputed Property, Mr. Berghuis reviewed and interpreted the survey completed by Mr. Robert Power, NLS, who he said was a local surveyor in Conception Bay South, now deceased, who had completed the survey work for Robert Eason in 1993-1995. Based on his

interpretation of the survey plan, and the legend, Mr. Berghuis opined that Mr. Power had observed evidence of wire fencing on the perimeter of

Schedule “C” along the western, northern and eastern boundaries, and evidence of rock walls primarily along portions of the southern boundary and some on the eastern boundary. [ 36 ] Mr. Berghuis superimposed the outline of the Disputed Property on a copy of a 1964 aerial photograph of the area. According to his

interpretation of the aerial photograph, he opined it seemed to show two small sections of cleared land. The aerial photograph did not show the presence of fences or rock walls because the resolution would not show those details even if there was fencing present in 1964. [ 37 ] Mr. Berghuis also entered an enlarged copy of the Crown Lands cadastral mapping, which he testified was prepared by Dominion Land Surveyors between the years 1905 and 1926.

Using a highlighter, he showed the Disputed Property as a rectangular parcel contained wholly within and forming the eastern portion of a parcel of ungranted land identified on the mapping by the words “Robt. and Jacob Dawe” (the “Dawe Parcel”). [ 38 ] A certified copy of the September 24, 1973 indenture from Heber Tilley to Bruce Jefford registered at Volume 1570 Folio 600- 601 (the “1973 Indenture”) was entered in evidence as J.B. #2.

The 1973 Indenture by its terms provided as follows: WHEREAS the land and premises hereinafter described formed part of the estate of the late Edward Tilley who died prior to January 1, 1972, Testate, AND WHEREAS the piece of parcel of land hereinafter described was devised and bequeathed unto the Vendor herein AND WHEREAS the Vendor has agreed to sell and the Purchaser to purchaser the hereinafter described piece or parcel of land for the consideration hereinafter appearing NOW THIS INDENTURE WITNESSTH that for and in consideration of the sum of Nine hundred dollars ($900.00) paid by the Purchaser to the Vendor on or before the execution of these presents the Vendor as Beneficial Owner hereby SELLS, ASSIGNS AND CONVEYS unto the Purchaser ALL THAT piece of parcel of land situate on the Westerly side off Tilley’s Road at Kelligrews aforesaid abutted and bounded as follows, that is to say: On the South and on the West by land of the Estate of the late Charles Jeffers; On the North by land of the Estate of the late Alfred Tilley and on the East by land of Samuel Jeffords TOGETHER WITH access thereto over and along a right of way known as “Buckley’s Path” (the same as now enclosed by fence) TO HAVE AND TO HOLD the same unto the Purchaser FOREVER . [ 39 ] Mr.

Berghuis was asked to read the description of the land in J.B. #2, and to show where in his opinion the location of the land described in that indenture was on the cadastral mapping exhibit. In other words, Mr. Berghuis was asked by counsel to provide his opinion as to the location of the parcel of land that Mr. Bruce Jefford acquired from Mr. Heber Tilley by the terms of the September 24, 1973 indenture.

[ 40 ] Mr. Berghuis referred to the location of the land in J.B. #2 which was described as to the westerly of Tilley’s Road and he referred to the recitals which stated that the land formed part of the estate of Edward Tilley who died prior to January 1, 1972, and was left to Heber Tilley. He then referenced the “bounds” of the land as described in the indenture. Referring to the cadastral mapping exhibit, J.B. #6, Mr.

Berghuis then demonstrated, by pointing to J.B #6, that in his opinion the land conveyed in the 1973 indenture was a parcel lying south of and abutting of the Disputed Property as he had drawn it using the highlighter. [ 41 ] To ensure that the Court had an accurate record of his opinion as to the location of the land conveyed by the 1973 indenture from Heber Tilley to Bruce Jefford the witness was asked to draw the location on the Crown cadastral mapping entered as J.B. #6.

The exhibit shows that the parcel which he marked as “J.B. #2” is a rectangular parcel abutting and lying south of the Disputed Property. [ 42 ] Based on his review of the registered documents, and the Crown lands mapping, Mr. Berghuis opined that J.B. #2 is not contained in the Annie Tilley grant. On re-direct, Mr. Berghuis confirmed he was aware that J.B. #2 also contained the wording “(the same as now enclosed by fence).” [ 43 ] The Plaintiff’s second witness was Mr. Bruce Jefford. Mr. Jefford is a farmer who lives at 70 Tilley’s Road South, CBS with his wife Mrs. Hazel Jefford. He moved to Kelligrews in 1967.

His father Mr. Samuel Jefford bought farm land off Buckley’s Path adjoining the Disputed Property in 1963. According to the witness, Mr. Samuel Jefford purchased the adjoining land from Alfred Tilley, who was Heber Tilley’s brother, in 1963. Mr. Bruce Jefford still farms on a portion of that land today. [ 44 ] At the time that Mr. Jefford purchased the land described in J.B. #2 from Mr. Heber Tilley he said it was all fenced, as was all land in the Kelligrews area at that time.

He testified that Heber Tilley was still farming the two cleared areas shown on the 1964 aerial photograph, and that he recalled seeing Mr. Tilley working that land. [ 45 ] In terms of the documents recording the purchase Mr. Jefford testified that when he bought the land he received a Bill of Sale which was entered in evidence as B.J. #1. The Bill of Sale provides as follows: Sept 17/73 Sold to Bruce Jefford one piece of land situated in Kelligrews, off Tilley Rd and Buckley’s Path. Next to his father’s Sam Jefford, for the sum of $900.00 Nine Hundred Dollars. Received in Full. [ 46 ] Mr.

Jefford recalled that he and Mr. Heber Tilley went to a lawyer, Mr. Ralph Fagan, to prepare a deed to the land sold by the Bill of Sale. Mr. Jefford said he understood he was buying all the land next to his father Samuel Jefford’s land, which extended from Buckley’s Path to the northern limit of the fencing on the land. Mr. Jefford testified that there was no doubt in his mind that he had bought all of the land, which included the Disputed Property. Mr.

Jefford does not read proficiently but said it was impossible that he had misunderstood what he had purchased, as he had walked around the land with Heber Tilley who showed him the land he bought. [ 47 ] Mr. Jefford testified that nobody challenged his ownership of the Disputed Property until 1995 when Mr. Eason cut wood off the land and that at the time he informed Mr. Eason it was his land. He took photographs of the activity on the land at the time and he engaged lawyers to have Mr. Eason put on notice of his ownership. [ 48 ] On cross-examination, Mr.

Jefford admitted that the fencing was on the Disputed Property when he purchased J.B. #2 and he did not ever see Mr. Heber Tilley fence the Disputed Property. He confirmed that when he and Mr. Heber Tilley and the witness Mr. Porter went together to see Mr. Ralph Fagan, that Mr. Heber Tilley confirmed he was selling him land that was formerly owned by Edward Tilley. [ 49 ] Mrs. Hazel Jefford testified next. She and Mr. Bruce Jefford have been married for 57 years. She entered the correspondence exchanged between lawyers in 1995 between July 20, 1995 and November 20, 1995 about the Disputed Property.

She did not recall any further dispute about the land after 1995. On cross-examination Mrs. Jefford agreed she had no dealings with the lawyers and while she knew where the land was located, she had no personal knowledge about the dispute. [ 50 ] Mr. Larry Hoskins is a 75 year old resident of Kelligrews. He recalled first meeting Bruce Jefford when the latter moved to Kelligrews in 1967. He testified that he knew the late Heber Tilley, and was a friend of Mr. Tilley’s son, Winston Tilley. Mr.

Hoskins was shown the survey of the 0.840 hectare parcel and testified he was familiar with Heber Tilley’s land off Buckley’s Path, which was about 1000 feet from the house he grew up in, and would have been on the land as a boy. He recalled Heber Tilley growing potatoes on the land and seeing Heber Tilley and his sons farming the land, and that sometimes Winston would be on the land. He described the land in question as having a gate off Buckley’s Path and said the land was fenced. He said that the land next to it was Alfred Tilley’s, which was sold to Sam Jefford.

He said that the Tilley’s were firm about protecting their land, and that he understood Mr. Bruce Jefford had bought all the 0.840 hectare parcel of land from the Tilley’s. It appeared to me that Mr. Hoskins initially suggested, by pointing to the survey of the 0.840 hectare parcel of land, that some of the potatoes planted by Heber Tilley were in areas within the Disputed Property. He confirmed however that when he saw the Tilley’s farming the potatoes he was looking from the gate on Buckley’s Path. [ 51 ] The last witness was the Plaintiff, Mr. Peter Jefford. Mr.

Jefford is a helicopter pilot who resides in Clarenville, NL. He is the son of Bruce and Hazel Jefford. When Mr. Jefford was a teenager he was told that the Disputed Property was his father’s land and that it was going to be left to him. He said he had walked the entire boundary of the 0.840 hectare parcel with his father and cut the boundary with a chain saw by following the remnants of wire fencing when he was 14-15 years old, in 1994 or 1995.

He confirmed that there are still remnants of wire fencing around the eastern, northern and western boundaries, and there is a rock wall where the cultivated portion of the land meets the southern boundary of the Disputed Property. [ 52 ] The Plaintiff was asked by counsel to comment on the title documents to the Disputed Property registered by the Defendant, and in particular to the accuracy of the recitals in the 1995 indenture to Robert Eason, Warren Eason, and Doris Metcalfe.

Apparently the Plaintiff had discovered on the day before trial that the second recital referenced a devise that was not recorded in the copy of the will annexed to Letters of Administration, CTA granted in the Estate of Abraham Dawe in 1912. The thrust of this evidence, which was really a matter of argument, was to show that the title claimed by the Defendant to the Disputed Property was invalid.

[ 53 ] The Plaintiff was also asked to comment on the opinion evidence of Mr. Berghuis regarding the location of the parcel of land his father had purchased from Heber Tilley. Mr. Peter Jefford said that Mr. Berghuis had not correctly considered that one of the “bounds” in J.B. #2 referred to the land being bounded on the north by land of the Estate of the late Alfred Tilley, which was north of the Dawe Parcel. [ 54 ] In cross-examination Mr. Jefford confirmed he has never received a tax bill for the Disputed Property. When counsel pointed out that Mr.

Berghuis had testified that the land that his father purchased ended at the southern boundary of the Disputed Property, and asked if he disavowed his expert’s evidence, Mr. Jefford said that was the witness’s

interpretation, but his position was that the Disputed Property was fully fenced and he read the 1973 indenture as selling all the fenced land to his father. [ 55 ] The Defendant, Mr. Warren Eason, is a resident of Long Pond-Manuels, NL and except for 8 years working away in 1983- 1991 has lived in the area all his life. He has paid the municipal taxes on the Disputed Property since acquiring it by deed in 1995.

The land he acquired in 1995 was all treed, so he did not apply for an agricultural land tax exemption as he knew “there was no exemption.” He entered evidence showing the Disputed Property is assessed by the Town of Conception Bay South for tax purposes and he is on the tax roll as the owner and pays the taxes. [ 56 ] The Defendant testified that he cut wood from the Disputed Property for a number of years after it was acquired and that there is not much usable wood there now. He recalled meeting Mr.

Bruce Jefford on one occasion in 1995 and, following that meeting, his father Robert Eason received a letter from a lawyer which was taken to counsel for the Defendant to deal with and he understood it was dealt with. [ 57 ] Mr. Eason testified that in 1996 he received a letter from the government which expropriated some of the Disputed Property for use in the CBS Bypass Road. He signed a deed to the land and later received payment for the land he sold and a new survey from Craig Nightingale, NLS, which showed Bruce Jefford’s land was south of the Disputed Property.

Craig Nightingale was a surveyor in CBS for many years, but is now retired and living away. Mr. Eason testified that he hired a surveyor to go around the perimeter of the Disputed Property and locate all the survey pins, number the pins, and plot them on the survey plan that he entered in evidence. [ 58 ] In cross-examination the Defendant admitted that he was not very familiar with the area of the Disputed Property growing up. He agreed it was all wooded and pretty isolated. He testified that Mr.

Gerry LeDrew showed his father where the Disputed Property was and that his father showed him the land after it was surveyed and “straightened away” by his lawyer. He understood his father first learned of the Disputed Property in 1993 when his grandmother Mabel Eason, the daughter of Jacob Dawe, told his father about the family land in Kelligrews, showed him the copy of the will of Abram Dawe, and told his father to ask Mr. Gerry LeDrew to show it to him. A copy of what purported to be a copy of the will of Abram Dawe which had been mailed by the Supreme Court to Mr.

Jacob Dawe, Kelligrews, on June 22, 1912, and marked O.H.M.S. (“On His Majesty’s Service”), was earlier entered in evidence by consent pursuant to a Notice to Admit. [ 59 ] As to the question of fencing, the Defendant agreed there was still some fencing visible in 1995 but he said the land was not fenced all around. He was asked about Mr. Berghuis’ evidence that based on the markings on the survey plans there was fencing there in 1993-1995 and he agreed there was some wire fencing visible but not along the southern boundary of the Disputed Land where the rock wall was shown.

He agreed that he did not know who put the fencing there and therefore could not say whether it was or was not Heber Tilley who had put the fencing on the land. [ 60 ] Mr. Maxwell Tilley, a 78 year old resident of Kelligrews, testified that he has lived in the vicinity of the Disputed Property all his life. He testified that before the trial he showed Mr. Eason “Bobby Dawe’s” land, which was how he described the Disputed Property. Mr. Tilley’s evidence was that he knew Robert “Bobby” Dawe who was a good friend of his family and that he was a local carpenter who had worked in his house.

He testified that when he grew up all the land in the area was fenced because of animals and that Bobby Dawe’s land was also fenced. [ 61 ] Mr. Tilley testified that his grandfather was George Alfred Tilley who owned all the land to the north of the Disputed Property. He testified that his grandfather has owned about 11 acres of land in the area of what is now Peacekeeper’s Way, and the bypass road cut the George Alfred Tilley land parcel in half. Mr. Tilley testified that the sons of his grandfather were his father, Maxwell, Randell, Frederick, and Frank. Mr.

Tilley said that if he was standing on the Peacekeeper’s Way and looking south, that next to Bobby Dawe’s land was Heber Tilley’s land, then Alf Tilley’s land, and then Herm Tilley’s land. [ 62 ] On cross-examination he confirmed that he knew Sam Jefford, and he knew his son Bruce Jefford well, who he described as a life-long friend. He said that as far as he knew Sam Jefford bought his farm land from the Tilley’s and he believed it was from Herm Tilley. He confirmed that George Alfred Tilley was his grandfather and his land abutted the top of the Disputed Property and the top of the Tilley land.

When asked if the Disputed Property was fenced he agreed all the land was fenced at the time. He testified that all the Disputed Property was wooded, not cultivated, and it is still all trees today. [ 63 ] The final witness was Ms. Amy Adams, a title searcher with Adams Hearn Searching Services in St. John’s, NL. Ms. Adams prepared a title search of the Disputed Property. The first registered document was a conveyance in 1966 to Ellen Dawe from Phyllis Kelly and Doris Metcalfe as Vendors, with Dorcas Ledrew and Mabel Eason as Confirmors, of a homestead property on LeDrew’s Road.

The property was described in the recitals as part of the property of Jacob Dawe, who had died on Dec 1, 1917, leaving his wife Dorcas, his son Robert Dawe and his daughter Mabel Eason. The deed stated that Robert Dawe died in 1959, leaving his widow Ellen Dawe and two daughters Phyllis (Dawe) Kelly and Doris (Dawe) Metcalfe. Ms.

Adams included the deed because in the document Ellen Dawe was purportedly transferred all of the estate of the late Robert Dawe. [ 64 ] The next deed included in the search report was the 1995 indenture from the Administrator of the Estate of Jacob Dawe, and the Estate of Robert Dawe, to Robert Eason, Warren Eason, and Doris Metcalfe. This deed, registered in 1995, included the 0.623 hectare parcel described in

Schedule “C”. [ 65 ] According to Ms. Adams, the recitals stated that Abram Dawe died on July 14, 1898 in possession of a seven acre parcel of land (the “inside piece”) and by his will bequeathed the property to his two sons, Jacob Dawe and Robert Dawe. Robert Dawe and Jacob

Dawe then divided the property between them and Parcel C (the Disputed Property) became Robert Dawe’s property. Robert Dawe died on April 18, 1907 intestate and Letters of Administration De Bonis Non were granted on April 25, 1995 to Robert Eason. Jacob Dawe died on December 1, 1917, and Letters of Administration were granted on April 19, 1995 to Robert Eason. The indenture has two affidavits of possession attached which stated that the land was originally owned by Abram Dawe and then owned by his sons Robert and Jacob Dawe.

The affidavits of possession, signed by Alexander Tilley and Annie Hayes outline this title history and attest that the Dawe family maintained the fences on the property. [ 66 ] In her report Ms. Adams states that the seven acre piece described as the “inside piece” appears on the old Crown cadastral mapping as ungranted land in the names of “Robt. And Jacob Dawe”. She concluded that “the 0.623 hectare parcel appears to be contained in the seven acre parcel.” On cross-examination, Ms.

Adams confirmed that there was no registered title into Abram Dawe, the father of Robert and Jacob Dawe, and there was no deed of vesting assent from the Estate of Abram Dawe to Robert and Jacob Dawe. [ 67 ] Ms. Adams also prepared a title search of the land registered to the Plaintiff. According to her search report, the first registered document is the 1973 indenture marked as J.B. #2.

She confirmed that recitals in the deed from Heber Tilley to Bruce Jefford state that the land was bequeathed to the Vendor by the late Edward Tilley, but based on her search she could find no registered title into Edward Tilley or into Heber Tilley or a registered connection between them. The report confirmed that the land was sold with access over and along a right of way known as Buckley’s Path. [ 68 ] Ms. Adams reported that the next deed was the March 30, 2015 indenture from Bruce Jefford and Hazel Jefford to Peter Jefford.

There were two affidavits of possession attached stating that the land was originally contained in a Crown grant to Annie Tilley issued on January 14, 1905 and that Heber Tilley had occupied the land from at least 1953 until September 24, 1973 when he conveyed it to Bruce Jefford. Based on her review of the registered documents, and the Crown lands mapping, she concluded that the 0.840 hectare parcel lies north of the Annie Tilley Crown grant. This was the same conclusion reached by Mr. Berghuis in his evidence. [ 69 ] Ms. Adams’ overall conclusion was that the Crown cadastral mapping shows the “southern

section of the subject property (the 0.840 hectare parcel) as a part of ungranted land in the name of Edward Tilley and the north

section as part of ungranted lands in the names of and (sic) Robt. and Jacob Dawe.” The report included a sketch made by Ms. Adams on the same Crown cadastral mapping marked by Mr. Berghuis, showing the 0.840 hectare parcel as having a southern

section abutting and lying south of the Disputed Property. This sketch is remarkably consistent with the expert opinion reached by Mr. Berghuis in his evidence and his own sketch of the northern and southern sections of the 0.840 hectare parcel. [ 70 ] Photographs of the Disputed Property, and the abutting parcel on Buckley’s Path were also entered in evidence by both parties. I agreed on the application of the Defendant to take a view of the land.

I found it helpful, given the issues in dispute, to have walked around the entire perimeter of the 0.840 hectare parcel, and to have walked across the Disputed Property diagonally. [ 71 ] With the exception of one small area where there is evidence of some wood cutting, the Disputed Property is now completely treed. There are many changes in elevation evident which would not be consistent with the land having been cleared for cultivation. There is no visible evidence whatsoever of any prior cultivation of the Disputed Property, in particular in the two areas that Mr. Berghuis suggested it seemed were cleared.

Based on taking the view, the Disputed Property appeared to be in its original state as treed land. The southern cleared

section on Buckley’s Path contains no trees and the uniform level of the land appeared to me to be consistent with the land having been cleared for cultivation as the witnesses testified. [ 72 ] This is an action for a binding declaration that the Plaintiff has a better or superior title to the Disputed Property than the Defendant. The onus rests on the Plaintiff to prove on the civil standard his entitlement to the declaration he sought, in accordance with the normal rules of evidence in a civil proceeding.

The substantive law basis of the Plaintiff’s action lies in the principles of real property law in the province. There is no dispute on the law governing how a person becomes the owner of a legal right, title or interest to land in the province, or with respect to the law on the doctrine of constructive possession. [ 73 ] The question of whether Mr. Bruce Jefford acquired the Disputed Property turns on the proper construction of the terms of the 1973 indenture taking into account any admissible evidence of the facts and circumstances at the time when the land was transferred to Mr.

Bruce Jefford. [ 74 ] The Plaintiff conceded in final argument that he has no claim to the Disputed Property based on long possession or otherwise. There was an attempt however in the Plaintiff’s case to show that the Disputed Property was in the possession of Heber Tilley prior to 1973, and in particular that areas of the Disputed Property were under cultivation, so I will deal with this point first as it assists to establish the factual context at the time when the land was transferred to Mr.

Bruce Jefford by the 1973 indenture. [ 75 ] With respect to the prior cultivation of the Disputed Property by Heber Tilley, Mr. Berghuis’ opinion evidence was that the 1964 aerial photograph seemed to show two small sections of cleared land, but he was unable to say what the clearings were or who may have cleared the land, or for what purpose. [ 76 ] The only witnesses who were able to speak from a personal recollection of the facts they related about the use of the land before 1973 were Mr. Maxwell Tilley, Mr. Larry Hoskins and Mr. Bruce Jefford. Mr.

Maxwell Tilley testified to his familiarity with the land he described as Bobby Dawe’s land, given its adjacency to his grandfather’s land which he worked, and the fact he knew Bobby Dawe and his family. In substance, Mr. Tilley’s evidence was that the Disputed Property was treed land and was never under any cultivation. Mr. Larry Hoskins’ initial evidence when shown the 0.840 parcel was that some of the Disputed Property was under cultivation for potatoes, but he later said that when he saw the Tilley’s farming the potatoes he was looking at the land from the gate on Buckley’s Path. Mr.

Bruce Jefford recalled that there were potatoes grown in areas of the Disputed Property by Heber Tilley. [ 77 ] In terms of the 1964 aerial photograph, I find that it could possibly show either areas of cultivation or areas from which trees had been removed but there was nothing uniform about the cleared spaces which suggested cultivation over tree cutting. Furthermore, given the elevation changes I saw while taking a view, I am unable to rely upon the photographs to draw an inference that the small sections of cleared land were cultivated by anyone, let alone Heber Tilley.

[ 78 ] Based on my assessment of the witnesses’ evidence, and my view of the land, I am persuaded that the evidence of Mr. Maxwell Tilley is the most reliable on this point. His evidence was internally consistent and externally consistent with the evidence of the other witnesses on the other material points. He came across as having no personal stake in the dispute and he was careful not to offer evidence on points where he had no recollection of the events. His evidence was consistent with what I saw on the ground.

I therefore find that the Plaintiff has not proven that any portion of the Disputed Property was under cultivation by Heber Tilley prior to 1973. [ 79 ] The terms of the September 24, 1973 indenture specifically provided that the Vendor, Heber Tilley, was conveying to the Purchaser, Bruce Tilley, land that formed part of the estate of the late Edward Tilley who died prior to January 1, 1972, Testate, and was devised and bequeathed to the Vendor. The 1973 indenture did not contain a survey or even a “metes and bounds” description of the land.

Instead, the indenture described the land as off Tilley’s Road at Kelligrews, with its boundaries directionally referenced to the surrounding lands. The land was conveyed with access thereto over and along a right of way known as “Buckley’s Path,” and the indenture included the words “(the same as now enclosed by fence).” [ 80 ] Turning first to the question of where Heber Tilley acquired the land he sold in 1973, by Mr.

Heber Tilley’s signature on the 1973 indenture he makes the representation that the land being sold to Bruce Jefford formed part of the estate of the late Edward Tilley who died prior to January 1, 1972, Testate, and was devised and bequeathed to the Vendor. The documentary evidence placed before me, consisting of the registered grants and Crown mapping in the area, establishes that from at least 1905 the only land of Edward Tilley on Buckley’s Path was a parcel of ungranted land lying to the south and east of the Dawe Parcel.

There was no documentary evidence which could lead to another conclusion. [ 81 ] There was confirmatory evidence from a witness who had reviewed the title records in the province. Ms. Adams gave evidence that her

interpretation of the Crown mapping and grants was that the “southern

section of the subject property (the 0.840 hectare parcel) (w)as a part of ungranted land in the name of Edward Tilley”. Her sketch, superimposed on a copy of the cadastral mapping of the area of the land, shows the entire southern

section of the 0.840 hectare parcel being within the boundaries of a parcel of ungranted land off Buckley’s Path which is shown as “Edward Tilley”, lying south of and outside the Dawe Parcel of ungranted land. [ 82 ] The Plaintiff’s expert, Mr. Berghuis, gave opinion evidence based on the wording of the 1973 indenture regarding the location of the land sold by Heber Tilley in 1973.

In his evidence, he referred to the location of the land to the westerly of Tilley’s Road, the recitals which stated that the land formed part of the estate of Edward Tilley who died prior to January 1, 1972, and was left to Heber Tilley, and the “bounds” of the land as described in the indenture prior to offering his opinion. Referring to the Crown cadastral mapping exhibit, Mr.

Berghuis demonstrated, first by pointing, and then by using a marker to draw the parcel of land sold by Heber Tilley, that in his opinion the land conveyed by Heber Tilley to Bruce Jefford in the 1973 indenture was land off Buckley’s Path wholly within the area shown on the cadastral mapping as owned by “Edward Tilley”, lying south of and outside the Dawe Parcel of ungranted land. I find that his evidence and that of Ms.

Adams, the title searcher, were completely aligned on this point. [ 83 ] I note that the Plaintiff had alleged in his pleadings, and in the Affidavits of Possession attached to the 2015 deed, that the Disputed Property was contained within a Crown Grant to Annie Tilley dated January 14, 1905, however at trial he accepted that the land does not fall within that Crown Grant and is ungranted land. [ 84 ] The Plaintiff’s principal argument is that the fencing on the property in 1973 which is referred to in the conveyance as “(the same as now enclosed by fence)” was the wire fencing going around the perimeter of the Disputed Property as shown to Mr.

Jefford by Mr. Tilley in 1973. I cannot rely upon evidence from Mr. Bruce Jefford as to what Mr. Heber Tilley told him or showed him at the time, for the truth of the statements or demonstrative actions of Mr. Tilley. Mr. Heber Tilley’s words and actions at the time in 1973 are inadmissible hearsay. I further note that none of the witnesses, including Mr. Bruce Jefford, ever saw any fencing of the property by Mr. Heber Tilley or any other person. [ 85 ] There was evidence from Mr. Berghuis that wire fencing and rock walls would have been visible to Robert Power, NLS, in 1993-1995.

His evidence is equally consistent however with the conclusion that the rock wall fencing marked the northern boundary of the land being conveyed to Bruce Jefford in 1973. There was no evidence provided for why the work to construct a rock wall of that scale would be undertaken if all the land was owned by one person. The view I took of the land satisfies me that the rock wall fencing more likely marked a boundary between two parcels of land that were of a different character, one which had been cleared for cultivation and was likely the source of many of the rocks, and the other in its natural wooded state.

I therefore find that the rock wall formed the boundary line between the cultivated land of Edward Tilley, and later Heber Tilley, and the uncultivated land of Robert and Jacob Dawe, and later Robert “Bobby” Dawe. [ 86 ] Having considered all the evidence, I find that the Plaintiff has not established that the land conveyed to Bruce Jefford in the 1973 indenture from Heber Tilley included the Disputed Property.

It follows on the principle nemo dat quod non habet that the Plaintiff did not acquire any title to the Disputed Property in 2015, and he therefore has not established that he has any title to the Disputed Property on which a binding declaration of “better” or superior title than the Defendant could rest. [ 87 ] For the reasons stated above, I would have dismissed the Plaintiff’s action for a declaration that he has a “better” title to the Disputed Property than the Defendant.

THE LIMITATIONS ACT DEFENCE [ 88 ] The Defendant also claims that the Plaintiff’s action is statute barred under s. 7 of the Limitations Act . Based on the facts as I have found them, the Defendant went into possession of the Disputed Property from September 19, 1995. I am satisfied that the Defendant went into possession of the Disputed Property in good faith under an indenture by which he understood he was entitled to the entire property referred to therein. I further find that he was in constructive possession of the whole of the Disputed Property from September 19, 1995 under colour of right (See: Wickham v.

Wickham Estate (1977), 17 Nfld. & P.E.I.R. 452 , 46 A.P.R. 452 (Nfld. S.C.T.D.) , p. 478) . [ 89 ] The evidence shows that Mr. Bruce Jefford had encountered the Defendant on the Disputed Property in 1995 cutting wood and that an extensive correspondence was exchanged from July 20, 1995 to November 20, 1995 between lawyers acting for Bruce Jefford

and Robert Eason about the title and ownership of the Disputed Property. According to the documents placed in evidence, Mr. BruceJefford claimed the Disputed Property was part of the land conveyed to him by the 1973 indenture from Heber Tilley, however counselfor Robert Eason rejected that claim. In the final correspondence from counsel placed in evidence before me, dated November 20, 1995,counsel for Mr.

Jefford “…request(ed) that your clients not enter upon the property again, and if they do, we shall be advising our clientto institute legal proceedings for trespass, damages, and costs.” [90] The Defendant thereafter openly used the Disputed Property as a wood lot, a purpose which the treed land permitted, he paidmunicipal taxes on the land, and he sold part of the land to the Government of Newfoundland and Labrador by deed dated September 30,1996. [91] The evidence showed that Bruce Jefford later engaged a surveyor, Paul Bennett, NLS, to prepare a survey of the property thathe acquired from Heber Tilley on Buckley’s Path, Kelligrews.

The February 14, 1998 survey showed the Disputed Property as land“claimed by the Estate of Robert and Jacob Dawe” and that a portion had been sold. This was the survey attached as

Schedule “A” to theMarch 30, 2015 indenture by which the Disputed Property was purportedly sold to the Plaintiff. [92] I am satisfied that by November 20, 1995, or by February 14, 1998 at the latest, Mr. Bruce Jefford knew that the Defendantclaimed ownership of and title to the Disputed Property, and was exercising his rights as an owner in possession by registration of the1995 indenture, and by using the Disputed Property for a wood lot. By February 14, 1998, Mr.

Jefford also knew or ought to have knownthat the Defendant had sold a portion of the Disputed Property to the Crown in 1996. [93] The Defendant argues that the Plaintiff’s right to bring an action for recovery of the Disputed Property was subject to ss.7(1)(

g) and 19(1)(

a) of the Limitations Act, as amended, which provides: 7.

(1) Following the expiration of 10 years after the date on which the right to do so arose, a person shall not bring an action orproceeding (

g) to recover land. 19.

(1) The right to enter, distrain or bring an action to recover land or rent by a person arises at the time (

a) of dispossession, discontinuance of possession or when that person has last received profit or rent from the land; [94] No explanation has been provided however as to why Mr. Bruce Jefford did not pursue an action or proceeding for the recoveryof the Disputed Property either in 1995, or in 1998. The Defendant continued in open possession of the Disputed Property according tothe evidence. Instead of commencing an action for trespass, or to recover the land, more than 17 years passed before this action wascommenced for a declaration of good title to the Disputed Property by his successor in title.

By the time this matter proceeded to trialboth deponents of the Affidavits of Possession attached to the 1995 indenture and the surveyor, Robert Power, NLS, were deceased. [95] An action for a declaration as to the title to property by a person in possession of that property has no limitation period pursuantto s. 8(1)(

b) of the Limitations Act. In my view this provision is inapplicable here as when the Plaintiff’s action was commenced onDecember 15, 2015 the Defendant had been in possession of the Disputed Property under colour of right for more than 20 years. [96] In Hollett v. Hollett (1993), (NL SC), 106 Nfld. & P.E.I.R. 271, 334 A.P.R. 271 (Nfld. S.C.T.D.), Green, J.relied upon the decision of Goodridge, J., in Cook v. Cook (1977), 14 Nfld. & P.E.I.R. 237, 33 A.P.R. 237 (Nfld.

S.C.T.D.) at 238, whichheld that a claim for a declaration that land was held on a resulting trust was a claim for “recovery of land” within the meaning of s. 3(1)of the Limitation of Realty Actions Act, to find that an action for specific performance of an agreement to jointly purchase land shouldlikewise be regarded as a proceeding for “recovery of land” to which the same limitation period should apply.

At paragraph 80 Green, J.held: [80] On this analysis, an action for specific performance, where by virtue of prior payment and acceptance of the purchasemoney, the purchaser can be said to have acquired an equitable interest in the land, should likewise be regarded as a proceeding forrecovery of land to which the same limitation period should apply. Proceedings which have the same object and effect should be treatedalike. [97] I find that the same reasoning applies on the facts of this case. The Plaintiff’s action for a declaration is, in object and effect, anaction or proceeding to recover land.

When the Plaintiff acquired the land on Buckley’s Path in 2015, his right to bring an action orproceeding for recovery of the Disputed Property could be no better than that of his predecessor in title, Mr. Bruce Jefford. Based on thefacts, I find that the right to bring an action against the Defendant to recover the Disputed Property expired on November 21, 2005, or atthe latest on February 15, 2008, and the limitation period under s. 7 of the Limitations Act had long passed in 2015.

DISPOSITION [98] Rule 7.16 does not give this Court any authority to grant a declaration that the Plaintiff has good title to the Disputed Property.The Court does have authority to make a declaration of “better” title, in its discretion, however such a ruling would not be a judicialdetermination of beneficial ownership of, or “good” title to, the Disputed Property. [99] I would decline to make a declaration of “better” title in the circumstances where there was no good reason for the 20 yeardelay in commencing the action, and the Defendant suffered material prejudice from the passage of time. [100] I further find that the Plaintiff’s action was by its object and effect an action to recover land and is statute barred under s. 7 of theLimitations Act.

[ 101 ] If my analysis of the law is incorrect, I would find on the evidence before me that the Plaintiff did not establish his entitlement to the declaration sought. [ 102 ] The Plaintiff’s action for a declaration is dismissed. [ 103 ] The Defendant shall have his costs taxed on the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D, Rule 55 , Appendix 1, Scale of Costs, Column 3. _____________________________ Peter A. O'Flaherty Justice