2020 NLSC 85, 2020 NLSC 85

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Power Estate (Re) , 2020 NLSC 85 Date : June 5, 2020 Docket : 201601G4879 In The Matter of the Quieting of Titles Act , R.S.N.L. 1990, c.

Q-3 And In The Matter of a piece or parcel of land situate at the end of Power's Lane and being located in the Town of Logy Bay-Middle Cove-Outer Cove, in the Province of Newfoundland and Labrador And In The Matter of an Application of the Estate of William James Power Between: Estate of William James Power PLAINTIFF And: Donna Hayward First ADVERSE CLAIMANT And: Patrick Hayward Second ADVERSE CLAIMANT And: Brendan Hayward Third ADVERSE CLAIMANT And: Jerome Hayward Fourth ADVERSE CLAIMANT And: PATRICK J. Powers Fifth ADVERSE CLAIMANT And:

JIM Powers Sixth ADVERSE CLAIMANT And: KEVIN PowerS Seventh ADVERSE CLAIMANT And: ANNE POWER Eighth ADVERSE CLAIMANT AND: PATRICK DAVID ANDERSON NINTH ADVERSE CLAIMANT Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: December 9, 10, 11 and 12, 2019 January 29, 2020

Summary: The Plaintiff sought a Certificate under the Quieting of Titles Act to certain land near St. John’s. The Plaintiff (represented by his Estate) sought to exclude his siblings from any interest in the property. While the Plaintiff occupied the land openly, notoriously, continuously and exclusively in respect of third parties, in the circumstances, he did not occupy the bulk of the land with the subjective intent to exclude his siblings, who were co-owners with him of most of the land in question. The application was denied in part. Appearances: John J. Hogan, Q.C.

Appearing on behalf of the estate of William James Power Christopher E. Gill Appearing on behalf of First, Second, Third, Fourth, Fifth, Sixth and Seventh Adverse Claimants William T. Cahill Appearing on behalf of Eighth and Ninth Adverse Claimants

Authorities Cited: CASES CONSIDERED: Pawlett v. Newfoundland (1983), 41 Nfld. & P.E.I.R. 349, 1983 CarswellNfld 56 (C.A.); George v. George,2012 NLTD(G) 196; Newfoundland v. Collingwood (1996), (NL CA), 138 Nfld. & P.E.I.R. 1, 1996 CarswellNfld 75(C.A.); Walsh Estate v. Newfoundland and Labrador, 2014 NLTD(G) 120; Wickham v. Wickham Estate (1977), 17 Nfld. & P.E.I.R. 452,1977 CarswellNfld 211(S.C. (T.D.)); Dyer Estate, re, 2010 NLTD 201; Prince Estate v. Maloney, 2017 NLTD(G) 97; Russell v.Blundon, 2002 NFCA 20; Russell v.

Blundon (1999), (NL SC), 185 Nfld. & P.E.I.R. 181, 1999 CarswellNfld 345(S.C. (T.D.)) STATUTES CONSIDERED: Quieting of Titles Act, R.S.N.L 1990, c. Q-3; Intestate Succession Act, R.S.N.L. 1990, c. I-21 REASONS FOR JUDGMENT Adams, J.: INTRODUCTION [1] This is an application pursuant to the Quieting of Titles Act, R.S.N.L 1990,c. Q-3 (the “Act”) for a Certificate of Title to 19.61hectares of land near St. John’s in the Town of Logy Bay-Middle Cove-Outer Cove. The case is somewhat confusing inasmuch as manyof the parties hold the same names through several generations and as such presents a complicated history.

For ease of reference and todistinguish some people from others who bear the same name, I will refer to some of the relevant people by their first or familiar names. In doing so, I mean them no disrespect. [2] The Plaintiff is the estate of William James Power (hereinafter “William” or “William Power”) who died testate leaving 10children. The land is located on Power’s Lane, just off Logy Bay Road. The estate of William Power is represented by the executors ofhis estate who are three of his children: William Joseph Power, Michael Power and Alice Power.

William is one of six children ofPatrick Power, Sr. (hereinafter “Patrick”), the original occupier of the land: William, John (Jack), Mary (Moll) Hayward, James (Jim),Patrick (Paddy) and Philip (Phil or Phillie). [3] Four adverse claims were filed to the application by the descendants of the siblings of William Power claiming differentinterests in the land: 1) Donna Hayward, Patrick Hayward, Brendan Hayward and Jerome Hayward – children of Mary (Moll) Power (the“Haywards”) who claim a one fifth share; 2) Patrick J.

Powers, Jim Powers and Kevin Powers – children of James Powers (the “Powers”) who claim a one fifth share;[1] 3) Ann Power, the daughter of Patrick Power, Jr. (hereinafter “Paddy”) who claims a one third share; and 4) Patrick David Anderson, the sole beneficiary of the Estate of Anne Power, his sister and the widow of Philip Power(hereinafter “Phil or Phillie”) who claims a one third share. evidence [4] The evidence of the estate of William Power was presented through various affidavits and documents attached to the Scheduleof Particulars filed with the Originating Application ex parte seeking the Order under the Act.

In addition, a number of the affiants gaveviva voce testimony at the trial. The adverse claimants also filed affidavits and documents. Some of the affiants also testified. Theparties also filed a Consent Book of Documents containing 47 tabs. There was no dispute in respect of the documents at Tabs 1 – 36. Some of the documents at Tabs 37 – 47 required some

interpretation by me, which I have done in my analysis where necessary. [5] The property under investigation was surveyed in 2015 on behalf of the Executors of the Estate of William Power, dividing itinto four parts: Parcels A, B, C and D (the “2015 survey”). This survey was also admitted into evidence. Where I refer to Parcels A, B,C and D, I will be referring to those outlined in the 2015 survey unless otherwise indicated. I have attached the 2015 survey plan tothese reasons as

Schedule “A”. Plaintiff [6] The Plaintiff was principally represented in this action by Alice Power, one of the daughters of William Power and one of theexecutors of his estate. Alice Power filed an affidavit dated 18 April 2016 attached to which were a number of documents which havebeen included in the Consent Book of Documents. [7] In addition, the Plaintiff filed affidavits of Michael Power and William Joseph Power, two of the sons of William Power andthe two other executors of his estate.

Additionally, the Plaintiff filed affidavits of possession from James Hickey, Joe Roche, CharlieSpurrell and Dorothy Boland. These latter affidavits from non-family members were all similar in wording. They contained a statementof the personal knowledge of each of the affiants which was generally limited to the use and occupation of the land by William Power

from the early to mid-1950s until his death in 2003. Their knowledge of the history of the property prior to that was based on statements of advice and belief from unspecified others and was not of their personal knowledge. [ 8 ] The Plaintiff presented evidence of aerial photographs of the property for various years from 1951 to 2009 taken from the records of the Government of Newfoundland and Labrador. I permitted Mr. John Kennedy, a retired employee of Crown Lands, to give opinion evidence on the

interpretation of these photographs. Mr. Kennedy had over 30 years of training and experience in interpreting such photographs. The adverse claimants did not object to his testifying. He stated that in his experience the size of the woodlot represented by Parcel D was not out of keeping with properties of a similar kind in that part of the province. Adverse Claimants [ 9 ] In addition to their adverse claims, each of the adverse claimants also filed affidavits in support of their respective positions.

The following adverse claimants also gave viva voce testimony: Ann Power, the daughter of Paddy Power; Patrick David Anderson, the brother of Phillie’s wife Anne, and the beneficiary of her estate; and Donna Hayward, the daughter of Mary (Moll or Mollie) Power who was the daughter of Patrick Power and a sister of William.

The adverse claim of Patrick David Anderson, in addition to his own affidavit in support, contained affidavits of long possession from Cecil Goulding and Richard Roche. [ 10 ] Each of the parties was permitted to supplement their respective affidavit evidence through viva voce testimony and/or were cross-examined by counsel for the opposing party or parties.

Where affiants did not present supplementary viva voce direct testimony, but were cross-examined on their affidavits, counsel for the respective parties were permitted to re-examine the witness. background [ 11 ] The property is a portion of a Crown grant of a large parcel of land to Ann Haley in 1837. Sometime thereafter certain Power brothers occupied a significant portion of the land in the Crown grant.

This was shown on an old cadastral map of the area from the 1940s. [ 12 ] While the property was subdivided for the purpose of the application into four parcels, (A, B, C and D), the Plaintiff seeks a Certificate for the whole of the property, which comprises approximately 19.61 hectares. [ 13 ] Parcels A and B containing together 2.38 hectares, are closer to Logy Bay Road. The evidence discloses that these parcels were occupied by John Power, the brother of Patrick Power, about which more will be said later in these reasons. [ 14 ] Parcels C and D, containing 17.2 hectares, are central to this case.

Parcel C is the central area of the property where Patrick with his wife, Sadie, and his children and eventually some of their families lived and where the farming activity actually took place. Parcel D is a woodlot immediately adjacent to Parcel C. [ 15 ] Patrick lived on and maintained Parcels C and D during his lifetime. While the evidence of this is hearsay, it comes from direct descendants of his who lived on the land following Patrick’s death and it is the best evidence available.

In particular, I rely on the affidavit of Alice Power, William’s daughter and Patrick’s granddaughter, submitted in support of the application and her viva voce testimony. [ 16 ] In her affidavit in support of the application, Alice referred to Parcels C and D. At paragraph 19, she stated that she was advised and verily believed that in or around 1910 Patrick built a house on Parcel C (the “Patrick Power house”) and that prior to his death in 1942 he farmed and maintained Parcel C and Parcel D.

This is consistent with the usage his brother John made of his land in Parcels A and B. [ 17 ] Following Patrick’s death in 1942, his wife, Sadie, and five of her six children, including William, continued to live on the property in the Patrick Power house. William was the eldest of Patrick and Sadie’s children and was 31 at the time of his father’s death. Paddy and Phillie were teenagers. The undisputed evidence is that William continued to live with his mother and siblings until he married.

I am satisfied by reasonable inference on the evidence that he continued the family farming operation on Parcels C and D which had been conducted by his father and which constituted mainly subsistence farming, although he did sell some produce from the farm and wood from the woodlot. He used the woodlot to obtain firewood, building materials, fence posts and the like, and for hunting and fishing.

He maintained the fencing around the land in Parcels C and D. [ 18 ] In or around 1945, upon getting married, William built another house on Parcel C not far from the Patrick Power house (the “William Power house”) and moved there with his family. William also built and maintained a barn/garage on Parcel C. [ 19 ] Alice states in her affidavit that Parcels A and B were owned by John Power and Parcels C and D were owned by Patrick. Again, this is consistent with the evidence and was not in dispute.

Alice further swore in her affidavit that she had been advised and believes that John Power built a house on his land in or about 1920, and farmed and maintained the land until he moved to Boston in or around 1950. [ 20 ] In or about 1955, William purchased his Uncle John’s property (i.e., Parcels A and B). There was no formal deed of conveyance at that time but in 1988 William registered a statutory declaration declaring himself to be the owner of John Power’s property.

Included in the declaration is a handwritten receipt signed by John Power showing that he had received $200 from William Power for land. [ 21 ] Then in 1956 William Power demolished John Power’s house and built a new one on the same foundation. In his statutory declaration, William stated that John Power had lived on the land since the late 1890s and built his house in the early 1900s.

He stated that John lived on the land, “kept a house and cattle and farmed by growing vegetables” and that the property in question was in the “open, sole, exclusive, notorious, continuous and adverse possession and use of the said John Power for upwards of 60 years.” [ 22 ] The declaration was accompanied by an affidavit of Cyril Pine. [2] Mr. Pine stated that he was 76 years old at the time he gave

the affidavit having been born in Outer Cove in 1912. He stated that he was well aware of the particulars of families which resided and owned land in Logy Bay. He stated he was particularly familiar with John Power’s property and he confirmed that John lived in a house on the property and “kept a horse and cattle and which he farmed by growing vegetables.” [ 23 ] While Mr. Pine was obviously not available for cross-examination, none of this was disputed so I accept his statements as fact as it comports with the other evidence of usage of Parcels A and B.

Alice Power who was born in 1949 actually lived on Parcels A and B with her family until she left home in the mid-1970s. [ 24 ] Alice stated that when Patrick died he left surviving him his widow, Sadie, and six children: William, (Alice’s father), John, James, Patrick, Philip and Mary. They were all living in the Patrick Power house, except Mary, who had married prior to her father’s death and was living in St. John’s. She stated that William, as the eldest son lived in and maintained the family home after his father’s death. He “maintained” the fences surrounding Parcels C and D.

Since the evidence is that he maintained the fences, it is a reasonable inference that it was his father Patrick who had erected them. All witnesses confirmed that the Property was fenced, including the woodlot represented by Parcel D. [ 25 ] The affidavit of James Hickey dated 14 April, 2016 attached to the application and found at Tab 5 of the

Schedule of Particulars is consistent with this conclusion. Mr. Hickey was 90 years old at the time he signed his affidavit and lived within less than a kilometer from the property his entire life. At paragraph 22 he stated: 22.

THAT each year for as long as I can remember and from at least 1955, the boundaries of the Property were marked by fencing which was regularly maintained by William Power. [ 26 ] Similar statements can be found in the affidavits of other affiants filed in support of the application. [ 27 ] I have no reason to doubt the accuracy of the history of the occupation of John Power and Patrick Power of their respective properties.

Alice Power testified that Patrick and John had other brothers as well but there is no evidence of occupation by them of any of the land in question in this case. [ 28 ] In or around 1960, the Patrick Power house was torn down and a new house was built by William on Parcel C on the site of his barn and into which Sadie Power moved with her children who were still living with her: Paddy, Jack and Phillie (the “Sadie Power house”). Jack later purchased and moved into a house on adjacent property. As already stated, Mary (Moll) had married before her father’s death and had moved off the Property.

Jim had moved to Boston in or around 1950. Sadie died in the early 1960s. Paddy and Phillie continued to live on Parcel C. [ 29 ] After marrying their respective wives, Paddy and Phillie left the property for some time: Paddy for approximately four years and Phillie for about 18 months to two years for various reasons, such as to care for an elderly relative or for work. However, they kept in constant touch with the land through visitation and in the early to mid-1970s approximately, they both moved back to the property and occupied the Sadie Power house on Parcel C.

That house had only rudimentary services and comprised four rooms – two each occupied by Paddy and Phillie and their respective wives. [ 30 ] Sometime in the mid to late 1980s the local church provided a house it owned to Paddy which was also placed on Parcel C not far from the other dwellings (the “Paddy Power church house”). Paddy’s wife, Shirley, died. Paddy continued to live in the church house (with his daughter Ann) until his death in the early 2000s. Ann continued to live there until she moved to British Columbia in 2003. Phillie and his wife Anne continued to live in the Sadie Power house until his death.

Phillie and Anne had no children. Anne continued to live in the house until her death. In her Will, Anne bequeathed her estate to her brother, Patrick David Anderson, one of the adverse claimants. [ 31 ] There appears to have been a wire boundary fence between what was John Power’s land (Parcels A and

B) and Patrick’s land (Parcels C and D). There was no fence between Parcels C and D. Parcel C was not actually a surveyed parcel of land but one delineated by the surveyor on the survey plan on the instruction of the Plaintiff to show the approximate area of the property where the farming activity was undertaken and to show where certain members of the Power family lived at various times as earlier described.

The boundary between Parcels C and D is delineated by a tree line. [ 32 ] I am satisfied on the evidence that it was William Power who carried out most, if not all, of the farming activity on Parcel C following his father’s death in the early 1940s. He also did the bulk, if not all, of the wood cutting on Parcel D, the wooded section. [ 33 ] The evidence in respect of what, if any, farming activity was carried out by Paddy and Phillie who continued to live on Parcel C was equivocal.

Most affiants who filed affidavits on behalf of the Plaintiff, both in their affidavits and in their viva voce evidence, testified that they did not see Paddy and Phillie do very much to help William with the farming. However, the evidence of Ann Power, Paddy’s daughter, is that Paddy did help with harvesting produce, and cutting hay and wood.

I found Ann to be a credible and forthright witness who lived on the land with her father and was able to speak with direct knowledge (or at least knowledge obtained directly from him at a time that the ownership of the property was not a live issue) of the activities he undertook on the property. While her father’s activities were not extensive, I do not believe they were as minimal as represented by the Plaintiff and its witnesses. I find on the evidence that Phillie was not a particularly active person on the property.

However, I am satisfied on the evidence that Paddy and Phillie both provided some minimal assistance at harvest time and took a share of the produce. Like any good farmer, William rotated his crops, leaving some fields fallow or growing hay or oats in order to regenerate the earth. Paddy and Phillie helped cut the hay from time to time, particularly in later years after much of the vegetable farming had ceased. [ 34 ] William had up to six gardens at various locations on Parcels A, B and C. He grew potatoes, cabbage, carrot, and turnip in these gardens. He had horses for ploughing and hauling wood.

He had chickens and ducks and cows. William also maintained the perimeter fence and exercised control over the property. William and Teresa had 10 children. His children helped him in the farming operation, planting and harvesting. While he lived on Parcels A and B, he clearly used Parcels C and D as he felt necessary to feed his growing family.

[ 35 ] This farming and wood cutting activity continued until William was too old to carry on. Eventually, William retired to his homestead on Parcels A and B where he maintained exclusive control and where he died in 2003.

Paddy and Phil and their wives continued to live on Parcel C until their respective deaths. positions of the parties Plaintiff [ 36 ] Counsel for the Plaintiff submitted that there is no dispute that William Power occupied Parcels A and B as that was his homestead and that an Order should issue granting him a Certificate in respect of that part of the property being claimed. [ 37 ] The Plaintiff’s position is that it has also shown that William Power occupied Parcel C (the farming and residential area) and Parcel D (the “woodlot”) sufficiently to warrant a Certificate of Title under the Act to those parcels as well, with the exception of the homes occupied by Paddy and Phillie on Parcel C, together with a reasonable amount of land around each house (approximately one acre each). [ 38 ] Counsel submitted that the Estate’s onus is simply to show that William occupied the property openly, continuously, exclusively and notoriously so as to oust Ann Haley, the Crown grantee, from the land as there is no direct evidence of the occupation of the property by Patrick.

Alice Power, one of the executors of William Power’s estate and the principal witness for the Plaintiff, testified that both her father, William, and (according to him) his father, Patrick, spoke of Ann Haley as the legal owner of the land. Counsel submitted that the Estate does not have to show that William excluded his siblings as they did not do anything to possess Parcel C or D except the small area around their homes on Parcel C.

He submitted that the adverse claims are based entirely on the children of Patrick inheriting their father’s interest in Parcels C and D through the Intestate Succession Act , R.S.N.L. 1990, c. I-21 . [ 39 ] Counsel submitted that there is no merit in this claim as Patrick did not enter into the property with any colour of title (i.e., paper title).

Nor, it was submitted, can his children claim any colour of title as Patrick’s estate was never administered and, in any event, there is no direct evidence of what activity Patrick undertook on Parcels C and D. [ 40 ] Counsel submitted that the only direct evidence of possessory acts on Parcels C and D is that of William Power and that these are sufficient to warrant the issuance of a Certificate to that land, subject to a reasonable amount of land being reserved (approximately one acre each) to Paddy and Phil surrounding their respective dwellings on Parcel C.

Adverse Claimants [ 41 ] The adverse claimants submit that their parents, along with William, inherited an undivided interest in Parcels C and D from their grandfather Patrick upon his death intestate and, as such, they are now entitled to their shares of their respective parents’ interest. [3] Counsel submit that all the children of Patrick are co-owners with William and therefore they do not have to prove acts of occupation or possession of Parcels C or D, although the descendants of Paddy and Phillie led evidence of possession by them nonetheless. [ 42 ] It should be noted that there is some apparent conflict in the positions of the adverse claimants, with some claiming a one fifth share and others a one third share.

This is not an issue I have to resolve and so I leave it for another day. [ 43 ] More especially, counsel submit that William has not proved the requisite occupation of Parcels C and D to warrant a Certificate in the name of his estate.

They say that while the collective occupation of Parcels C and D by William and his siblings and their predecessors is sufficient to show open, notorious, continuous and exclusive possession of Parcels C and D since at least 1910 as against third party strangers, the Plaintiff has not met the higher evidentiary burden of possession by William necessary to dispossess the adverse claimants, the descendants or assigns of his siblings. [ 44 ] The adverse claimants conceded that the Plaintiff is entitled to a Certificate of Title in respect of Parcels A and B, being approximately 2.38 hectares which is currently held in the name of Ann Power in respect of Parcel A and Catherine (Power) Ryan in respect of Parcel B, both children of William Power.

THE LAW The Act [ 45 ] The relevant sections of the Act state: 3.

(1) A person claiming to be the owner of land shall be entitled to have his or her title judicially investigated and declared, whether he or she has the legal estate or not, and whether his or her title is or is not subject to a charge or encumbrance. 9.

(1) The judge in investigating the title may receive and act upon evidence that is received by the court on a question of title, or other evidence, whether the evidence is or is not receivable or sufficient in point of strict law where the evidence satisfies the judge of the truth of the fact intended to be established.

(2) It shall not be necessary to produce or account for the originals of registered deeds, documents or instruments, unless the judge otherwise directs.

(3) The proof may be by affidavit or certificate or may be given orally or in another manner satisfactory to the judge.

(2) Where the judge considers that the applicant is entitled to the land, he or she may grant a certificate to that effect or grant aconveyance, and that certificate or conveyance will apply against all persons except the Crown. … 23. The judge may give a certificate of title comprising the lands mentioned in the petition or may give separate certificates as toseparate parts of the land. [46] The civil standard of proof on a balance of probabilities applies. The applicant must show that the claim to the land stems froma legal basis or, alternatively, possession: Pawlett v.

Newfoundland (1983), 41 Nfld. & P.E.I.R. 349, 1983 CarswellNfld 56 (C.A.) atpara. 9. The Act does not permit the judge hearing an application for a Certificate to declare other interests in the property. The onlyjurisdiction the Court has is to determine whether the Plaintiff is entitled to the Certificate sought: George v.

George, 2012 NLTD(G)196, at para. 5. [47] The authorities are clear that each case must be determined on its own facts and what may constitute possessory title for thepurpose of the Act will differ according to the circumstances, including the nature and situation of the land. [48] In Newfoundland v. Collingwood (1996), (NL CA), 138 Nfld. & P.E.I.R. 1, 1996 CarswellNfld 75 (C.A.)Cameron, J. A. stated at paragraph 10: 10. At page 1513 of their text, Anger and Honsberger Law of Real Property, 2nd ed.

(1985) Volume 2, Oosterhoff and Rayner state: Whether there has been sufficient possession of the kind contemplated by the statute is largely a question of fact in each case in whichdue regard is to be had to the exact nature and situation of the land in dispute.

Possession must be considered in every case with referenceto the peculiar circumstances, for the facts constituting possession in one case may be wholly inadequate to prove it in another; thecharacter and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor mightreasonably be expected to follow with a due regard to his own interests, are factors to be taken into account in determining thesufficiency of possession. [49] In Walsh Estate v. Newfoundland and Labrador, 2014 NLTD(G) 120 O’Regan, J. stated at paragraph 27: 27.

The burden of proof is on the plaintiff and it must be proven that it is more likely than not that the plaintiff was in open, notoriousand exclusive actual possession for the relevant period. Each case must be looked on individually and I would add that each case shouldbe viewed with "an air of reality". Admittedly, each act purporting to show possession may not on its own be sufficient to discharge theburden.

Thus, identification shown on a cadastral map, sporadic wood cutting, paying municipal taxes, obtaining permits forconstruction, maintaining fences, cutting fire breaks, farming a portion of the land, placing signs, calling police about trespassers,knowledge of ownership in the community and other acts of control may not in themselves be sufficient to satisfy the burden. However,when there is abundant evidence of numerous acts both physical and otherwise that directly points to ownership, control and usage, thatis another matter.

As in Collingwood, it is the individual's unique usage of the land that must be considered. [50] In Wickham v. Wickham Estate (1977), 17 Nfld. & P.E.I.R. 452, 1977 CarswellNfld 211 (S.C. (T.D.)), Goodridge, J. referred tothe difficulty of claimants who have an undivided interest with others in property in establishing ownership through acts of possession byone against the others. At paragraphs 129 to 133, Goodridge, J. stated: 129. … A colour of title is a paper title. There must be a paper writing under which the claimant honestly believes he is entitled to theentire property referred to therein.

He must enter into possession in good faith believing himself to be the owner. 130. Then, and only then, does he by entering upon and possessing part of the land acquire constructive possession of all. 131. The situation of a co-owner is quite different. A claimant having a colour of title must believe himself to be the owner of all theproperty, not just an undivided interest therein, and he must enter into possession in good faith with this belief. There must be some sortof document of title to all of the property. 132. None of these factors applies to a co-owner.

He enters in good faith only respecting his own undivided interest and is aware thatthere are other undivided interests. He does not believe himself to be the owner and cannot therefore enter into possession in good faithwith such belief. 133. There is no colour of title. There is an unquestioned title as to part and nothing whatsoever as to the rest.

[ 51 ] In discussing ownership of an adjacent woodlot, Goodridge, J. stated at paragraph 149: 149. Lot 2 This is a woodland adjacent to Lot 1. It would be an improvident law which would separate the title of a wood lot adjacent to a homestead from the title to a homestead. In Newfoundland and, presumably, elsewhere a woodlot is just as necessary to a homestead as the fields for hay and crops.

It provides firewood, posts for fences, and wood for other purposes. issue [ 52 ] Has the Plaintiff, the estate of William Power, satisfied the burden to prove that it is entitled to a Certificate of Title pursuant to the Act to either Parcels A, B, C or D? [ 53 ] For the reasons which follow, I find that it has satisfied the burden in respect of Parcels A and B but that it has not in respect of Parcels C and D. DISCUSSION [ 54 ] There is no doubt that William Power and his wife and children occupied Parcels A and B.

The adverse claimants concede this and consent to a certificate issuing to the Applicant in respect of Parcels A and B. Neither is there any doubt in my mind on the evidence on a balance of probability that William exercised sufficient possessory acts over Parcels C and D to oust any strangers to the Property.

The real issue is whether by his acts of possession he also intended to and did exclude his siblings represented by the adverse claimants. [ 55 ] Counsel for the Plaintiff acknowledges that Patrick maintained his homestead on the Property during his lifetime until his death in 1942, but he submits that there is no direct evidence of Patrick’s usage of the land. [ 56 ] However, it is a reasonable inference from all of the evidence that Patrick carried on a similar usage to that employed by his son, William, before William took control in 1942. This was a tightknit family that was tied to this land.

I am satisfied on the evidence that William learned to care for and use the land from his father. [ 57 ] It was stated by the witnesses for the Applicant that William followed a very traditional understanding of the law of inheritance where the eldest son was thought to have inherited the land from his father. I will have more to say on that later in these reasons. But even if that were so, it did not change the legal inheritance rules on an intestacy under the Intestate Succession Act .

That Act states that upon the death of an intestate who leaves a spouse and children, the estate goes to his wife and children: s. 4(2) and s. 5 . Patrick died without a Will. His estate has not been administered. [ 58 ] There is no evidence that William excluded his siblings from Parcels C and D. On the contrary, they all lived on Parcel C until they either left home as adults or died. They were free to go on the property if they wished. The evidence from Paddy’s daughter Ann is that Paddy walked the property frequently and knew the trails through the woods intimately.

Mary and her children visited her parents and her Uncle Paddy and Uncle Phillie frequently. Neither Paddy nor Phillie sought nor were granted permission by William to build their houses and to live freely on the land. [ 59 ] William died in 2003. He left a Will in which he bequeathed his homestead in equal shares to his daughters Anne and Catherine. This is the land comprising Parcels A and B in the 2015 survey. I am satisfied that there is no dispute over the ownership of this land by William.

William purchased it from his Uncle John and then he and his family occupied it to the exclusion of others from 1956 to the present. A Certificate pursuant to the Act should issue to the estate of William James Power for Parcels A and B in the 2015 survey. [ 60 ] I find the situation in respect of Parcels C and D is different. While the Plaintiff submitted that William possessed Parcels C and D, counsel acknowledged that Paddy and Phillie retained an interest in some portion of Parcel C.

Counsel for the Plaintiff sought to limit this interest to the land immediately surrounding the houses occupied by Paddy and Phillie, which he submitted was approximately one acre each. Reference was made to municipal residential taxation information which allocated about that amount of land to the residential numbers representing the Power properties recognized for taxation purposes. Ann has been paying municipal taxes on 17 Power’s Lane and David Anderson has been paying taxes on 15 Power’s Lane.

This was but one piece of information to be considered and was not conclusive of actual ownership or of the amount of land involved: Walsh, supra . [ 61 ] The Plaintiff relied on a number of cases in support of its claim: Dyer Estate, re , 2010 NLTD(G), George v. George , supra ., and Prince Estate v. Maloney , 2017 NLTD(G) 97. I find all of these cases are distinguishable on their facts from this case. In none of those cases were the applicant and adverse claimants found to be co-owners of the land in dispute. [ 62 ] In Russell v.

Blundon, 2002 NFCA 20 , the Court of Appeal dealt with the issue of one member of a family, all of whom inherited property from the same common ancestor, dispossessing his siblings. [ 63 ] In Russell , a brother and sister, John Blundon and Rosie Russell, inherited land from their grandfather, George Pardy, who had died intestate. The parties were in agreement that Mr. Pardy was the owner of the property. The grandfather’s estate had never been administered. The parties resided on the property as children with their grandfather. Eventually, Rosie married and moved off the property.

John also moved off the property but over the years grew vegetables and harvested hay on it. He used it for grazing his horses. He maintained the fences on it that had been built by his grandfather. He conveyed a piece of the land to his son on which his son built a house in which he resided with his family. [ 64 ] John sought to have the land quieted in his name, contending that his acts of possession extinguished any claim his sister may have had to the Property.

Rosie resisted the application on the basis that she was a co-owner of the property with her brother and, while she didn’t object to his acts of possession, neither did she see these acts as an attempt to dispossess her. The Court of Appeal upheld the trial judge’s decision dismissing the brother’s claim for sole ownership. [ 65 ] In paragraph 32 of his trial brief, counsel for the Plaintiff sought to distinguish Russsell on the basis that in that case there was

no dispute over the ownership of the land by the parties’ grandfather, George Pardy. Counsel referred to paragraph 23 of the Court ofAppeal decision which stated “The late George Pardy’s ownership of the land is not in question here.” Counsel then concluded thatsince there is no proof of “ownership” by Patrick, there is therefore no proof of joint ownership by his children. [66] I find there is no merit in this argument. For one thing, reference to the trial decision of Easton, J. in Russell v.

Blundon (1999), (NL SC), 185 Nfld. & P.E.I.R. 181, 1999 CarswellNfld 345 (S.C. (T.D.)), on which the Court of Appeal based itsconclusion in paragraph 23 of its decision referred to above, shows that there was no more evidence of George Pardy’s ownership of theland in question there than that in respect of Patrick in the case before me. In fact, one might reasonably conclude that that there waseven far less. [67] At paragraph 3 of Easton, J.’s decision, he stated: 3.

One of the few areas on which the parties agree is that one George Pardy, who died intestate on October 4, 1958 had acquiredgood title to the property in question. Rosie Russell and John Blundon, as sole next of kin of George Pardy, obtained an interest in theproperty. Both the Plaintiff and the First Defendant were raised by their grandfather after the death of their mother. They both residedwith George Pardy on the property, which is the subject matter of this litigation. [emphasis added] [68] The above extract represents the sum total of the evidence on ownership of the land by George Pardy in Russell.

In the casebefore me, however, there is agreement by all parties that Patrick owned Parcels C and D. The undisputed evidence of the Plaintiff’sown witnesses is that Patrick built a house on Parcel C in or about 1910. He farmed Parcel C. He cut wood on Parcel D. He fenced theentire property comprising Parcels C and D. He raised his family of six children there, among them William who now seeks to claim theentire property. They all lived there until Patrick’s death except Moll who had married and moved away.

Patrick’s wife Sadie and theirchildren continued to live there after Patrick’s death in the house he had built. William took over the family operation upon his father’sdeath. He maintained the fences his father had built. None of this evidence (albeit technically hearsay) is in dispute. [69] With respect, I find that the Plaintiff’s attempt to distinguish Russell on this ground is ill founded, as is the suggestion that thereis no evidence of Patrick’s occupation. Section 9(1) of the Act is instructive on the acceptance of evidence in cases such as this. I repeatit here for ease of reference: 9.

(1) The judge in investigating the title may receive and act upon evidence that is received by the court on a question of title, orother evidence, whether the evidence is or is not receivable or sufficient in point of strict law where the evidence satisfies the judge ofthe truth of the fact intended to be established. [70] I find that the undisputed evidence referred to above of Patrick’s occupation of Parcels C and D, being the best available,satisfies me that Patrick was the owner prior to his death of Parcels C and D sufficiently to bring this case within the legal principles setout in Russell.

In fact, contrary to the Plaintiff’s position, I find that this case is substantially like Russell. [71] At paragraph 6 of Russell, Gushue, J.A. (Wells, C.J.N. concurring) stated: 6. … It is important to note that whether or not, in these circumstances, the respondent took any active interest in the property overthe years is irrelevant. She was a co-owner of an undivided half-interest in the property. She was never excluded in any manner from theland by her brother. Surely, a co-owner who is being excluded from her property by the other co-owner should at least be aware of thatexclusion.

There are no acts of a possessory nature on his part which could possibly be deemed to demonstrate open, notorious andexclusive possession as against her as a co-owner. Indeed, it may be said that, generally, one co-owner cannot exclude another co-ownerexcept in exceptional circumstances which certainly do not obtain here. [emphasis added] [72] In a lengthy separate opinion in Russell, Marshall, J.A. explained the evidentiary burden facing an applicant seeking todispossess family members claiming ownership through the same ancestral estate. At paragraph 30, he stated: 30.

Moreover, it is also important to appreciate the evidentiary burden to establish the element of subjective intent is morechallenging for parties in Mr. Blundon's position, who seek to establish adverse possessory title against family members claimingthrough the same ancestral estates, than it would be against unrelated parties who have no colour of title to the property. While it maynot be unequivocally stated that the burden of establishing the requisite subjective intent may never be discharged in such instances,claimants in kindred positions to Mr.

Blundon face obvious significant hurdles in establishing the requisite adverse aspect to thepossessory acts vis à vis a family member claiming under the same estate. As the extract from Wickham reproduced in preceding 15[para. 50 above] points out, such claimants could not have entered the property in the belief that they had any "colour of title" superior tothe family member because they must be presumed to have been aware of the undivided interest of other next-of-kin.

In these situations,it will be more difficult to sustain a possessory title against such a co-beneficiary because acts of possession, which might be sufficient toripen into title as against others, could not be assumed to have been exercised with the same subjective adverse intent against the relativewhose inheritance made him or her a co-owner of the property. [73] It is clear from Russell that a claim to possessory title comprises both an objective and subjective element.

I am satisfied on theevidence that William exercised sufficient acts of possession over Parcels C and D to fulfill the objective criteria as against strangers. Hehad lived on and farmed Parcel C. Parcel D was an adjacent woodlot which he used in conjunction with his homestead on Parcel C aswell as later when he lived on Parcels A and B. The real question is did his acts of possession in respect of Parcels C and D oust anyclaim by his siblings, who were co-owners with him? [74] On the balance of probabilities I find that they did not. It is clear on the evidence that William’s acts of possession were open,

notorious, continuous and uninterrupted.

The affidavits and viva voce evidence of Alice Power, William Power, Jr., Dorothy Boland, Charlie Spurrell, James Hickey, Karl Boland, Herb Cook and Steve Power are consistent with this conclusion; and, while William’s possession was exclusive as against strangers, I cannot conclude on the evidence that he had the subjective intent to exclude his siblings as co-owners. [ 75 ] Counsel for the Plaintiff submitted that Sadie and her children did not inherit anything from Patrick upon his death by intestacy as they had no colour of title which he submitted meant a paper title, relying on Goodridge, J.’s observations in Wickham referred in paragraph 50 above.

I reject this argument. [ 76 ] Marshall, J. A. in Russell specifically rejected this

interpretation of a colour of title. At paragraph 43 he stated: 43. At this juncture, it should be parenthetically noted that counsel for the Blundon family points out that the extract from Wickham , upon which the judge relied and which is reproduced in preceding para. 15 [para. 50 above], treats "colour of title" as being "a paper title". Because no letters of administration to the late George Pardy's estate had been granted, and with no formal transfer of interests from the grandfather's estate having been made, counsel argued at one stage in his submissions that Mr.

Blundon, having no document signifying his "colour of title", could not be deemed to have entered on to the land, on a strict reading of Wickham ’s precept, with any "paper title" reflecting his interest.

It follows, he submits, that this client ought not be considered to have entered on the Property with any "colour of title" of co-ownership and therefore must be treated on the same footing as entering on the land "in good faith believing himself to be the owner" (sic) With respect, this attempt to distinguish his client's entry on the land from that in Wickham , in order to avoid the difficulty of establishing that Mr. Blundon had entered without such a belief and thereby avoid an obstacle in establishing the alleged possessory title, is untenable.

Wickham should be read as intending "colour of title" to include entitlement to "a paper title" The wording which his counsel excises from that extract cannot be utilized to lessen Mr. Blundon's burden of proving that his acts with respect to jointly inherited land were perpetrated with an intent adverse to the interest of his sibling in the same property. [emphasis added] [ 77 ] Upon his father’s death, William entered onto the Property with the same rights as his siblings and no more, any local custom of inheritance by the first born notwithstanding.

William and his stepmother and his siblings were “entitled” to administer Patrick’s estate and obtain a “paper title” from the estate. While they didn’t do so, I am satisfied on the balance of probabilities that William did not enter onto the property upon his father’s death with the intent of excluding his stepmother and other siblings from the land. This is evidenced throughout his occupation of Parcels C and D.

While the applicant and its supporting affiants boldly stated that William became the owner of his father’s property by virtue of being the first born male, there is no evidence to support this contention or that William entered onto the property with such a belief. Indeed, William’s later dealings with Parcels C and D belie any suggestion that he considered himself to be the sole owner of the land. [ 78 ] Most importantly, Paddy and Phillie and their respective families continued to live on Parcel C in the full knowledge of William.

They used Parcels C and D as their own to the extent they had the need or desire, although sometimes deferring to William as their older brother who they looked up to. The evidence discloses a number of examples over the years where William could have but did not demonstrate a claim to sole ownership of Parcels C and D or show a subjective intent to exclude his siblings. [ 79 ] For instance, in or about 1981, a neighbor, Karl Boland, asked William for permission to allow Newfoundland Power to place a pole line on his property at Parcel B to provide electrical service to his house. William agreed.

He granted an easement over Parcel B to Newfoundland Power which is registered at the Registry of Deeds and is included at Tab 2 of the Consent Book of Documents. The survey plan attached to the deed shows a fence dividing Parcels A and B from Parcels C and D.

To the right of this fence appears the names of “Patrick, Philip and William Power”, indicating that they are the owners of the adjacent property which I am satisfied refers to Parcels C and D. [ 80 ] It is reasonable to infer that the surveyor would have obtained the information on the ownership of the adjacent land from William who he dealt with and who, with his wife, Teresa, signed the easement.

If William intended to assert sole ownership of Parcels C and D, it is reasonable to assume that he would have raised the issue and objected to the surveyor showing Paddy and Phillie as having any ownership interest in Parcels C and D. [ 81 ] Another opportunity arose in 1988 when William registered a declaration of ownership of the land comprising parcels A and B at the Registry of Deeds (Tab 3 in the Consent Book of Documents). Attached to the declaration was a survey conducted in 1988. It shows the adjacent land, which I conclude on the evidence is Parcels C and D to belong to “the Power brothers”.

I am satisfied on the evidence that at that time the reference to the Power brothers could only have meant William, Paddy and Phillie. This is consistent with the 1981 easement referred to earlier and the other evidence of occupation. [ 82 ] It was clear from the evidence, especially that of Alice Power, William’s daughter and one of his executors, that William valued his land. However, William did not include Parcels C and D in his declaration.

Alice Power testified that it was her understanding that William didn’t include it because he planned to apply for a quieting of title certificate in respect of the land but was deterred from doing so because of the cost. She said he approached Paddy and Phillie to share the cost and he agreed to bequeath them an interest in the land in his Will in return. When they refused to contribute to the cost, William abandoned the plan. [ 83 ] In my view, it is illogical to conclude that William would seek contribution from Paddy and Phillie if he believed he owned Parcels C and D.

A more reasonable explanation for William not including Parcels C and D in his declaration of ownership is that he did not believe that he was the sole owner of that property and he could not quiet it without the cooperation of Paddy and Phillie as co- owners. He therefore restricted his declaration of ownership to that land represented by Parcels A and B. [ 84 ] On another occasion, Patrick David Anderson, one of the adverse claimants, asked William with whom he was friends for a piece of land from Parcels C and D for his children to build houses for themselves on. Mr.

Anderson testified that William said he couldn’t do it because the land was “too tangly” and there were too many people involved or words to that effect. This is not the response of a person who was certain of his ownership of the land. [ 85 ] And yet another opportunity presented in 1988 when William executed his Last Will and Testament dated 18 October 1998.

He bequeathed the land referred to in his declaration of ownership (i.e. Parcels A and

B) to his daughters, Ann and Catherine in equal shares. In clause 3(

d) of his Will he bequeathed this land by using the words, “my parcel of land at Logy Bay”. This is the land he had purchased from his Uncle John and the wording denotes certainty of ownership. [ 86 ] However, in clause 3(

e) of his Will by contrast, referring to the land comprising Parcels C and D, William instructed his executors: To transfer all my interest and share in the lands at Logy Bay aforesaid owned and occupied by my late father Patrick Power Senior and having an area in excess of 17 hectares to my children living at my death in equal shares. [emphasis added] [ 87 ] It is not my task to interpret the full legal implications of these words for the estate of William except as they relate to this application.

However, by using the term “my interest and share”, this is a clear indication that in 1998 William did not hold the subjective understanding or intent that he was the sole owner of Parcels C and D. In his

interpretation he held no more than “an interest and share,” which I conclude was an undivided interest with his siblings, although it is possible that he mistakenly thought that it was only his brothers, Paddy and Phil, with whom he was sharing it by that time. [ 88 ] There are also examples of how others who claim an interest in the land in question viewed William’s interest in Parcels C and D, including the executors of his estate, the applicants herein. [ 89 ] In 1990, Catherine Ryan, William’s daughter and her brother-in-law, Jack Byrne, the surveyor who had completed the 1988 survey, obtained from Paddy and Phillie options to purchase their interests in certain land in Logy Bay said to be described in

Schedule A attached to the option agreements for $40,000 each. The

Schedule was not attached to the option that was produced in court but it is reasonable to conclude that the options referred to Paddy’s and Phillie’s interest in Parcels C and D, whatever that might have been. [ 90 ] The options contained a clause that upon exercising them, Catherine would re-convey to Paddy and Phillie respectively, a parcel of land approximately one acre in size surrounding their respective dwellings plus a 50 foot right-of-way to be placed at the discretion of the Optionee. This implies that the land subject to the option was larger than one acre.

It is also evidence that Paddy and Phillie did not consider William to be the sole owner of the land as the first recital in each of the agreements states that Paddy and Phillie, respectively, own a one third interest in the land subject to the option. [ 91 ] In 2005, William J. Power, Michael Power and Alice Power, three of William’s children appointed as executors of his Estate, were granted Letters of Probate of his Will.

In accordance with his Will, in 2006 William’s executors conveyed a one third interest in the Property to his 10 children in equal shares, representing William’s “interest and share” in it. [ 92 ] The Deed of Vesting and Assent and Transfer dated 11 August 2006 (Tab 10 of the Consent Book of Documents) states in the recitals: AND WHEREAS the late William James Power at the date of his death was the owner of a one third share, in possession as a tenant in common of various parcels of land situate in the Town of Logy Bay-Middle Cove Outer Cove (hereinafter referred to as the “Subject Property”) and being more particularly described below.

AND WHEREAS the other two thirds interest in the Subject Property were held by his brothers Patrick Power and Philip Power as tenants in common. [emphasis added] [ 93 ] William J. Power, one of the executors, testified that it was he who arranged to have the Will probated and gave the lawyer instructions respecting the Deeds of Assent. He testified that he chose the one third interest to represent the words in his father’s Will to “transfer all my interest and share” in the Property, as he thought that that was the least interest his father could have claimed.

He testified that he understood from the lawyer that it didn’t really matter what was stated in the Deeds as it would be all straightened out when the quieting of the land was done. Alice Power testified likewise. The lawyer was not called to testify. [ 94 ] I do not accept this explanation as being reasonable. It is more likely that, contrary to what is now being asserted, the understanding (or misunderstanding) of the executors of William’s estate was that he only owned a one-third share in the land and the other two-third shares were owned by Paddy and Phillie as the Deed states. William J.

Power testified that as the business manager of the Roman Catholic Episcopal Corporation for a considerable number of years, including at the time of the execution of these Deeds, he was familiar in dealing with lawyers and had been involved in hundreds of real estate transactions. It is not plausible to believe that he did not understand the implications of the statements made in the Deeds.

In fact, he testified in both direct and cross-examination that it was his understanding that Paddy and Phillie were co-owners in Parcels C and D with William. [ 95 ] In 2012, Alice Power, who is one of William’s executors and the principal driver of this application, approached Ann Power (Paddy’s daughter and his heir) seeking input and financial contribution to Alice’s efforts to settle ownership of the land referred to in the application.

It should be noted that these conversations took place prior to either of them obtaining legal advice respecting their interests. [ 96 ] But at that time, Alice suggested to Ann that the land would pass to the five children of Patrick as he had died without a Will. [4] While it does not alter the legal rights of either party, it is nonetheless a clear confirmation that at least Alice as one of the executors of William’s estate did not consider that William owned Parcels C and D in his own right as they now assert but as a co-owner

with his other siblings which is contrary to what was indicated in the Deed of Assent from William’s estate to his children referred to in paragraph 92 above. [ 97 ] In her testimony at trial, Donna Hayward, the representative of the Hayward adverse claimants, the children of Mary (Mollie) Power, stated that Alice Power also approached her with the intent of purchasing the share of the Hayward claimants or at least that of her own interest. It is interesting to note that Ms.

Hayward (and presumably her siblings) had no knowledge that they may have had an interest in the Power land until a chance meeting between Patrick David Anderson and Ms. Hayward’s brother. [ 98 ] Following this chance meeting, in April of 2014, Alice Power contacted Ms. Hayward a couple of times to determine if Ms. Hayward would sell her share to Alice. As already stated, it was unclear from the evidence if Alice was asking Ms. Hayward to sell her share only or that of all of the children of Mollie Power. Neither was it clear what value Alice put on the interest she was seeking to purchase from Ms.

Hayward. [ 99 ] But what is clear, is that in 2014 (contrary to her current position and to her different position again in 2006), Alice Power recognized that the Haywards, the children of Mollie Power, who had left the land prior to Patrick’s death, had an interest in the property as descendants of a child of Patrick. While this may not prove anything in and of itself, it is yet another demonstration of the express understanding of the ownership of the land by at least one of the executors of William Power.

This understanding is also consistent with the conclusion that Patrick occupied this land and was its owner prior to his death. Ms. Hayward confirmed that she was not making any claim to Parcels A and B. [ 100 ] It is also noteworthy that the executors have not rectified the Deed of Assent referred to in paragraph 92 above if it contains such a material error as is now claimed by Alice Power. Alice Power is an educated, sophisticated woman who understood the implications of what was stated in the Deed of Assent but she signed the legal document nonetheless. Likewise, William J.

Power was a businessman well versed in deeds of conveyance but he also signed the deed and acknowledged in his testimony that he recognized Paddy and Phillie, at least, as co-owners of Parcels C and D with William. [ 101 ] In all of the circumstances I am convinced that on the balance of probabilities Patrick was the owner of Parcels C and D. Upon his death intestate that land devolved to his widow and children. William’s acts of possession did not dispossess them of their interests. As co-owners, they did not have to do anything to assert their interests in the property.

William did not make any efforts to exclude them and there is no evidence that they had any knowledge that William held such an intent. To repeat what Gushue, J.A. stated in Russell at paragraph 6, “Surely, a co-owner who is being excluded from her property by the other co-owner should at least be aware of the exclusion.” conclusion [ 102 ] In conclusion, I find that William Power did not believe he became the sole owner of Parcels C and D upon his father’s death and did not have the subjective intent to exclude his siblings as represented by the adverse claimants from that property.

He did not enter into possession of these parcels of land in good faith with such belief. On the balance of probabilities it has not been demonstrated that he exercised the exceptional circumstances necessary to establish that he held the subjective intent required to dispossess his siblings.

It is not my role to resolve any differences the adverse claimants may have in respect of their respective interests in Parcels C and D. [ 103 ] In the result, the application by the Estate of William Power for a Certificate of Title under the Act in respect of Parcels A and B is granted. [ 104 ] The application by the Estate for a Certificate of Title to Parcels C and D is denied. [ 105 ] Since the adverse claimants were not claiming an interest in Parcels A and B and were successful in resisting the applicant’s claim to Parcels C and D, they shall have their costs against the Estate of William Power under Column III of the Scale of Costs. _____________________________ James P.

Adams Justice

SCHEDULE “A”