Long Harbour Holdings Inc. PLAINTIFF And: Craig Barnes FIRST Defendant AND: THE ESTATE OF Dorothy Barnes, represented by Craig Barnes SECOND DEFENDANT AND: JOHN BARNES THIRD DEFENDANT AND: STEPHEN BARNES FOURTH DEFENDANT, 2018 NLSC 149

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Long Harbour Holdings Inc. v. Barnes , 2018 NLSC 149 Date : July 6, 2018 Docket : 201701G4838 Between: Long Harbour Holdings Inc. PLAINTIFF And: Craig Barnes FIRST Defendant AND: THE ESTATE OF Dorothy Barnes, represented by Craig Barnes SECOND DEFENDANT AND: JOHN BARNES THIRD DEFENDANT AND: STEPHEN BARNES FOURTH DEFENDANT Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 5, 6, 8, 9, 2018

June 5, 6, 7, 8, 11, 12, 13, 14, 15, 22, 26, 27, and 28, 2018

Summary: The Defendants claimed the existence of a private, or in the alternative, public easement, over the land of the Plaintiff in Quidi Vidi, St.John’s, NL. The Plaintiff claimed damages. Held: The Plaintiff is entitled to a declaration that no such easement exists. There was no award of damages. The Plaintiff was awardedits costs. Appearances: Erin E. Best Appearing on behalf of the Plaintiff Giles W. Ayers Joseph F. Boulos Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Grieve v. Huntley, 2006 BCSC 1112; Taylor v. City Sand & Gravel Ltd., 2010 NLCA 22; Shea v.

Bowser,2016 NSCA 18; Cooper v. Dawe, 2015 NLTD(G) 25; Kennedy v. Hickey, 2011 NLTD(G) 120; Duncan v. Beach O’Pines Assn., 2011ONSC 2349; Reed v. Lincoln (Town), (ON CA), [1974] O.J. No. 2185, 53 D.L.R. (3d) 14 (C.A.); Faryna v. Chorny, (BC CA), [1951] B.C.J. No. 152, [1952] 2 D.L.R. 354 (C.A.); Fort Amherst Seafoods Ltd. v. Tucker, 1985CarswellNfld. 363, (1985) 34 A.C.W.S. (2d) 402) (S.C.); Bursey v. St. John’s (City), 2011 NLTD(G) 130; C. (R.) v. McDougall, 2008SCC 53; Harbour Authority of Savage Harbour v. Simpson Aqua Ventures Inc., 2015 PESC 31 TEXTS CONSIDERED: Lewis N.

Klar et al, Remedies in Tort, (Toronto: Carswell, 2018) REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] The Plaintiff, Long Harbour Holdings Inc. (“LHH”) and Defendants, Craig Barnes, the Estate of Dorothy Barnes, JohnBarnes and Stephen Barnes (collectively “the Barnes”) are owners of land in Quidi Vidi Village (“Quidi Vidi”), St. John’s, NL, situatedgenerally to the west of Stone’s Road (formerly Heale’s Road) and Barrows Road. The property of LHH is bounded on the east, in part,by Stone’s Road and Barrows Road and on the west by the Barnes’ land.

The Barnes argue that they are entitled to a private easement,or in the alternative, a public easement, over LHH’s land from Stone’s Road to the Barnes’ land, for all uses and of sufficient width toaccommodate vehicle traffic. The easement claimed by the Barnes is 10.4 meters wide and 15 meters long (the “disputed easement”). [2] The Barnes do not deny that LHH is the legal owner of the land over which they claim a right of passage. Nor do they arguethat their conduct is such as to have dispossessed this ownership.

In other words, they do not argue that they have acquired ownership ofthe disputed easement by virtue of adverse possession. Rather, they submit that there exists an easement by grant, or in the alternative,by prescription. That the Barnes are owners of certain land to the west of the LHH property is not in issue, although the preciseboundaries of that land is an open question. [3] LHH disputes the Barnes’ claim and brings this action seeking a Declaration that no such easement exists. The issue was

brought to a head recently when the Barnes offered their property for sale, and as part of the real estate listing showed the disputed easement over LHH’s property. Further, LHH has plans to develop its property and maintains that it requires an adjudication of this issue before proceeding. In addition to the Declaration, LHH seeks damages for an alleged delay in its development caused by the Barnes’ claim to the disputed easement.

LHH also claims damages for trespass and slander of title. [ 4 ] The disputed easement is described as “ Right-of-Way to ‘New Meadow’ ”, in a survey prepared for Dorothy Barnes by John F. Wade & Associates, dated 7 February 1993 (the “Wade Survey”). It is attached as

Schedule “A” to this decision. As shown on the survey, the disputed easement is north of the property of Wayne and Dorothy Stone (the “Stones’ house”). As we shall see, the Wade survey was prepared in anticipation of a Quieting of Titles application by Dorothy Barnes. However, the Quieting was not perfected prior to Ms.

Barnes’ death and to date has not been pursued by her family, or her estate. issues [ 5 ] The dispute between the Barnes and LHH gives rise to the following questions for determination: 1) Is there an easement by express grant? 2) Is there an easement by prescription? 3) If there is no easement, is LHH entitled to damages? Is there an Easement by Express Grant? The Evidence and Analysis [ 6 ] An easement is a right over the land of another. The land which is subject to the easement is called the servient tenement, and the land which has the benefit of the easement is the dominant tenement.

In the present context, the land of LHH would be the servient tenement and the land of the Barnes the dominant tenement. [ 7 ] An express grant of an easement arises where the grantor makes it expressly clear that he or she is granting an easement. In order for such a grant to be recognized, its terms, as well as the intention, must be clearly ascertainable and unambiguous (see Grieve v. Huntley , 2006 BCSC 1112 ). The LHH Chain of Title [ 8 ] Both LHH and the Barnes provided title abstracts for their respective properties, together with copies of the relevant conveyances.

Insofar as the registered title history is concerned, both properties have their root of title in the father of John, Patrick, and Ellen Mallard. John Mallard’s interest in the estate of his late father was divided between Ellen Mallard and Patrick Mallard in a 1900 Deed of Partition. It is here we begin. The 1900 Deed of Partition [ 9 ] The Deed of Partition [1] between Ellen Mallard and Patrick Mallard is dated 5 June 1900 and was registered that same day.

It recites the fact that John Mallard died intestate on 14 September 1899 and that John Mallard and his sister, Ellen Mallard, were entitled equally under the will of their late father to all his estate and effects, which included certain land and premises at Quidi Vidi.

John and Ellen did not divide their father’s estate prior to John’s death, however, and by this Deed of Partition it is agreed that the brother of John and Ellen, Patrick Mallard, should take John’s share in the estate. [ 10 ] The text of the deed reads, in part, that: …Patrick Mallard should be allotted and take as his share in the said residuary estate the several pieces of land and chattels (the description and particulars of which are set forth in the

schedule at the foot hereof) and that the balance of the said residuary estate should be retained by the said Ellen Mallard as her share of the same. [ 11 ] Pursuant to this deed, Patrick Mallard was conveyed four (4) parcels of land, referred to therein as Lots 1 to 4, as described in the “Schedule” to the deed. [2] Of particular relevance to the within inquiry are Lots 2 and 3. They are described in the deed, as follows: Lot 2 .

All that piece or parcel of land situate on the west or southwest side of the public road and immediately opposite the land described in Lot 1 together with the stone flake and other erections thereon which land is bounded on the north by the Kitchen garden of the house occupied by Ellen Mallard on the west by what is known as the new meadow and on the south by what is known as Heale’s Field. Lot 3.

All that piece or parcel of land known as Heale’s Field except, the corner in the southwest which is to be let into the new meadow and be the property of Ellen Mallard which corner is to be forthwith staked off. [ 12 ] There was no survey plan attached to this deed, nor none referenced in its text. However, it is common ground between the parties that the land now owned by LHH falls within what is described as Lot 2. This lot is expressed to be bounded on the west by what was known as the “new meadow” and on the south by Heale’s Field.

Heale’s Field, (Lot 3) is conveyed to Patrick Mallard with one notable exception. The southwest corner of Heale’s Field is to be “staked off” as the property of Ellen Mallard, so as to provide access “into the new meadow”. The precise language being, “which is to be let into the new meadow”. [ 13 ] While the “new meadow” is not expressly conveyed to Ellen Mallard, the Deed of Partition provides that she is to receive the residue of her father’s estate. The exclusion from the conveyance of Heale’s Field to Patrick Mallard, of a parcel of land to provide

access to the new meadow for Ellen Mallard, leads reasonably to the conclusion that the “new meadow” was to be her property. On this LHH and the Barnes are in agreement. They are also in agreement the property now claimed by the Barnes is at least a portion of the “new meadow”. [ 14 ] Ray Guy, a retired professional land surveyor, testified that if there was to be a grant of an easement, the Deed of Partition would be a logical time to do so. I agree, for it is at this time that both the dominant and servient tenements are in play.

As we shall see, the Deed of Partition is the only time both tenements appear in the same conveyance. [ 15 ] Indeed, that is precisely what happened, although the vehicle used was not an easement. Rather, access to the “new meadow” is preserved by excepting a portion of Heale’s Field from that conveyed to Patrick Mallard, thereby providing access from the southwest corner of that field. As we shall see, the disputed easement lies at the northeast corner of what was known as Heale’s Field, not the southwest.

The 1929 Deed and attached 1918 Plan [ 16 ] On 27 November 1929 the estate and beneficiaries of Patrick Mallard conveyed the land acquired by him in the 1900 Deed of Partition to one William Cook. The 1929 deed recites the fact that Patrick Mallard died on 10 December 1917. [ 17 ] This time Lots 2 and 3 are described, as follows: Lot No. 2.

ALL THAT piece or parcel of land situate on the West or Southwest side of the public road immediately opposite the land described in Lot No. 1 bounded on the North by the Kitchen Garden of the house formerly occupied by Ellen Mallard on the west by what is known as the New Meadow, and on the south by that is known as Heale’s Field. Lot No. 3.

ALL THAT piece or parcel of and known as Heale’s Field except the corner to the southwest which has been cut off by a right-of-way leading to the New Meadow . … The said pieces or parcels of land above described being marked respectively Lot 1, Lot 2, Lot 3, and Lot 4, on the Plan hereto annexed which plan is to be taken as part hereof and as by reference thereto will more fully appear … [emphasis added] [ 18 ] It will be recalled that in the 1900 Deed of Partition a portion of the southwest corner of Heale’s Field was conveyed to Ellen Mallard, so as to provide access to the new meadow.

This time the written description of Lot 3 acknowledges that the corner of Heale’s Field to the southwest “has been cut off by a right-of-way leading to the New Meadow.” By its express language, the 1929 Deed does not purport to grant the right-of-way. Rather, what we have is an acknowledgement that a portion of Heale’s Field to the southwest “has [already] been cut off” so as to provide access [“right-of-way”] to the new meadow. [ 19 ] The language of the 1929 Deed incorporates by reference an attached plan showing the four lots, entitled, “Mallard Property- Quidi-Vidi shewing P.

Mallard’s portion ”, and expressed to be in a scale of 50 ft. to 1 inch (“the Plan”). The Plan was prepared by W. F. Canning and is dated Oct. 1918, some 11 years prior to the deed to which it is attached. [ 20 ] There are four lots shown on the Plan, corresponding to the lots conveyed to Patrick Mallard in the 1900 Deed of Partition. As in the text of the 1929 Deed, Lot 3 is identified as “Heale’s Field”. Lots 1 and 2 are simply identified as such, both on the Plan and in the text. The new meadow is also identified on the Plan, as is the “P.

Mallard dwelling”, adjacent to a “Public Road”. [ 21 ] The Plan itself depicts a “right-of-way” coloured in red and described as “Right of Way to New Meadow”. The Barnes point to this Plan as establishing the grant of the easement, or at the very least as evidence in support of an easement by prescription.

Its significance as evidence of a prescriptive easement remains to be decided, but I reject the argument that through this Plan, as attached to the 1929 Deed, there was created an easement by grant in the location of the disputed easement, or otherwise, or that the Plan is intended to reflect the access provided in the 1900 Deed of Partition. I do so for the following reasons: • Where the property description does not match the attached Plan the property description will govern. This rule in the law of boundaries was summarized by our Court of Appeal in Taylor v.

City Sand & Gravel Ltd . , 2010 NLCA 22 (at para. 20 ): 20. … if a description is clear and certain, it prevails over an attached plan. That is, if the words of the description define with sufficient certainty what is conveyed, inaccuracy of dimensions or plans will not vitiate or affect that which is sufficiently defined. • The text of the 1929 conveyance is not ambiguous. Further, it is entirely consistent with the language of the 1900 Deed of Partition.

Rather than duplicate the language in 1900 Deed of Partition, the language in the 1929 conveyance is modified to reflect that which has already been done; “which has been cut off …” There is no reference in the text of the conveyance to the right-of-way as shown on the Plan. • The text of the 1929 conveyance does not create the grant of an easement. Rather, it describes a pre-existing access to the new meadow in the southwest corner of Heale’s Field. While the term “right-of-way” is used, in reality this is the portion of Heale’s Field excepted from the conveyance to Patrick Mallard in the 1900 Deed of Partition.

The purpose of the exception was to provide Ellen Mallard with access to the new meadow, but an easement was not thereby created. Rather, the land required for access was “staked off” from the southwest corner of Heale’s Field (Lot 3), as the property of Ellen Mallard; • Both the Deed of Partition and 1929 conveyance describe access to the new meadow from the southwest corner of Heale’s

Field. The Plan has a north magnetic arrow, based upon which the right-of-way depicted in red on the Plan appears to the northeast, and not the southwest corner of Heale’s Field. The southwest corner of Heale’s Field is shown on the Plan as bordering on a “Public Road”, thereby providing a point of access to the new meadow from that road. • The Plan depicts the right-of-way as meandering through both Lot 2 and Lot 3.

However, neither the Deed of Partition, nor the text of the 1929 Deed makes any reference to there being access to the new meadow through Lot 2. • The 1929 conveyance makes no provision for the dominant tenement and there is no indication who is to benefit from the “right-of-way” depicted on the Plan, or the nature of the benefit. [ 22 ] In final submissions, counsel for the Barnes argued that access to the new meadow could not be obtained at the southwest corner of Heale’s Field, and the reference to “southwest” must therefore be in error. With respect, this argument cannot be sustained.

In reality, the western boundary of the new meadow is not defined on the Plan and, as noted, the southwest corner Heale’s Field is shown as abutting a public road (formerly known as Heale’s Road and now known as Stone’s Road). [ 23 ] Land surveyor, Robert Way, who testified for the Barnes, also opined that the reference to the southwest corner of Heale’s Field in the 1929 conveyance is in error and should read the northeast corner [3] . With respect, this is pure speculation. The access to the new meadow has its genesis in the 1900 Deed of Partition, as an exception from the land conveyed to Patrick Mallard.

The text of the 1929 conveyance is in conformity with the Deed of Partition, although the language is deliberately modified to reflect the fact that what was contemplated in the Deed of Partition has now been done. It is not a matter of copying the language in the Deed of Partition, as one might if it were simply a transcription error. If “southwest” should read “northeast” the error was committed not once, but three times. [4] [ 24 ] Further, the error postulated by Robert Way does not fully address the matter, for the Plan shows an easement through not only Heale’s Field (Lot 3), but Lot 2 as well.

Substituting “northeast” for “southwest” in the text does not address the supposed involvement of Lot 2. [ 25 ] Finally, the Barnes argue that the right-of-way as shown on the 1918 Plan was modified over the years such that it was some 100 feet wide in the 1970’s to mid 1980’s and then reduced to become the disputed easement when the City of St. John’s (the “City”) installed curb and gutter. Even if the 1918 Plan could be considered as an easement by grant, the law is clear in that an easement acquired by express grant can only be altered by abandonment or express agreement.

There is no evidence of such an agreement in this case. The court cannot alter the location of such a right-of-way, or allow either party to do so unilaterally (see Shea v. Bowser , 2016 NSCA 18 ) [ 26 ] In 1918, the surveyor who prepared the Plan saw fit to depict the existence of a “right-of-way” to the new meadow at other than the southwest corner of Heale’s Field, through both Lot 2 and Lot 3. It meanders without a description. The extent to which this right-of-way coincides with the disputed easement is the subject of further consideration in determining whether there exists an easement by prescription.

The 1929 Deed does not create the grant of an easement, however, nor does the Plan describe the access provided in the 1900 Deed of Partition. The 17 May 1932 Conveyance [ 27 ] By a Deed of Conveyance, dated 17 May 1932, and registered two days later, William Cook conveyed the land acquired by him in the 1929 conveyance to John Squires. There is no diagram attached to this conveyance, and the land is no longer referenced as Lots 1 – 4.

However, the text of the 1932 Deed describes what was previously known as Lots 2 and 3, as follows: ALL THAT piece or parcel of land situate on the West, or Southwest side of the public Road immediately opposite the land described hereinbefore bounded on the North by the Kitchen Garden of the house formerly occupied by Ellen Mallard on the West by what is known as the New Meadow on the South by what is known as Heale’s Field ALSO ALL THAT piece or parcel of land known as Heale’s Field except the corner to the Southwest which has been cut off by a right of way leading to the New Meadow . [emphasis added] [ 28 ] As it relates to the access provided to the new meadow, this conveyance mirrors the language of the 1929 conveyance to William Cook.

Once again, the reference is to the southwest corner of Heale’s Field and, once again, nowhere in the conveyance is there an express grant of an easement, much less one in the area of the disputed easement. The Conveyances to Fort Amherst [ 29 ] By a Deed of Conveyance, both dated and registered on 10 November 1944, John Squires conveyed a portion of what was known as Lot 2 to Waterford Investment Company Limited. There is no plan attached, nor is there any mention of an easement. [ 30 ] On 23 May 1952, the foregoing portion of Lot 2 was conveyed by the Waterford Investment Company Limited to Joseph Tizzard.

On 17 March 1971 this property is conveyed by Joseph Tizzard to Fort Amherst Sea Foods Limited (“Fort Amherst”). Again, there is no plan attached and no mention of an easement. The land is located at the intersection of what is now known as Quidi Vidi Village Road and Barrows Road.

It is north of the disputed easement. [ 31 ] By a Deed of Conveyance, dated 9 September 1975 and registered on 30 October 1975, the same John Squires conveyed two parcels of land to Fort Amherst, one of which is comprised of 0.30 acres and forms the remainder of what was known as Lot 2. [5] The disputed easement is in the southern portion of this 0.30 acres. However, neither the text of this deed, nor its accompanying plan, make any reference to an easement. As surveyed, a fence on the north of the Stones’ house is shown as encroaching on the .30 acres. The 30 June 2006 Declaration of Title

[ 32 ] By a Declaration of Title, dated 30 June 2006, Ray Bursey Sr., as President of Fort Amherst, declares that the company is the true and lawful owner of land containing 1,355 square meters situate on Barrows Road and Stone’s Road, in Quidi Vidi. [ 33 ] The Declaration alleges that the survey which was attached to the 1975 conveyance from John Squires was removed from the Deed, either intentionally or unintentionally, and replaced with a survey showing less land in the southerly portion of the 0.30 acres.

The Declaration has a new survey attached, dated 6 December 2005, which identifies as parcel 3 the land which allegedly should have been included in the 1975 deed. [ 34 ] Insofar as the ownership of the disputed easement is concerned, nothing turns on the Declaration of Title. It is included here as evidence of Ray Bursey, Sr.’s propensity to protect what he perceived to be the land interests of Fort Amherst. The Conveyance to LHH [ 35 ] By a Deed of Conveyance, dated 2 June 2016, Fort Amherst conveyed a parcel of land on the western side of Stone’s Road, Quidi Vidi, comprised of 0.1089 hectares, to LHH.

This land is a portion of the 0.30 acre parcel purchased by Fort Amherst from John Squires on 9 September 1975, and is the means by which LHH acquired the property over which the Barnes claim an easement exists. However, this conveyance makes no mention of an easement. There are other portions of the 0.30 acre parcel which were previously expropriated from Fort Amherst by the City. I will have more to say about this expropriation in the analysis of whether or not there exists an easement by prescription.

The Barnes’ Chain of Title The 1990 Deed of Partition [ 36 ] As previously noted, the Barnes’ title stems from the 1900 Deed of Partition and is at least a portion of what was therein described as the “new meadow”, being the property of Ellen Mallard. The 18 April 1973 Conveyance [ 37 ] By Deed of Conveyance, dated 18 April 1973, Agnes Mallard, as administratrix with Will annexed, of the Estate of Ellen Mallard and executrix of the Last Will and Testament of Susannah Mallard, and in her own right, conveyed a parcel of land in Quidi Vidi to John Charles Barnes [6] .

This conveyance encompasses a portion of the land now claimed [7] by the Barnes. The land conveyed to John Charles Barnes is what is herein referred to as the “Barnes property” or “Barnes land”. [ 38 ] Recitals in the conveyance state that at the time of her death, on 22 December 1922, Ellen Mallard was the owner in fee simple of the land being conveyed. There is no reference in the text of this deed to the existence of an easement for the benefit of this property.

Rather, the property conveyed is described as being bounded, in part, on the north by a public road (now known as Barrows Road) for a distance of some 63 feet. As we shall see, in 1996 one of John Charles Barnes’ sons, Kerry Barnes, built a house on Barrows Road, blocking roughly 53 feet of this access. [ 39 ] There is a

Schedule “A” plan attached to this conveyance, prepared by Geo. G. Way, NL Land Surveyor, which purports to identify a “right-of-way” over the land of John Squires leading to the property on its eastern boundary. However, the 17 May 1932 conveyance to John Squires makes no reference of a right-of-way (see paragraph 27, supra ). Further,

Schedule “A” is undated and offers no guidance as to the point of the origin of the depicted “right-of-way”. It has not been surveyed, nor is the “right-of-way” referenced in the text of the conveyance. It does not resemble the right-of-way in the 1918 Plan. Further, there is no indication in the body of the conveyance that this right-of-way is for the benefit of this property, or whether it is public or private. The mere depiction of a “right-of- way” on

Schedule “A” falls far short of a “purported” express grant of an easement. [ 40 ] I say “purported” as, in any event, this is a conveyance of what would be the dominant tenement. It therefore could not serve as to expressly grant an easement over the land of another (the servient tenement). The 30 July 1989 Conveyance [ 41 ] John Barnes died on 7 July 1989. The next conveyance of relevance is dated 30 October 1989, and is from Kerry Barnes, as administrator of the Estate of John Barnes, together with the children of John and Dorothy Barnes, as confirmors, to Dorothy Barnes.

This conveyance is of several parcels of land at Quidi Vidi, including the land purchased by the late John Barnes from Agnes Mallard et al on 18 April 1973. There is no mention in this conveyance of a right-of-way for the benefit of the property. The purported right-of- way over the land of John Squires in the 18 April 1973 conveyance no longer appears. The 1993 Quieting of Titles [ 42 ] The Wade survey was prepared in support of a Quieting of Titles application by Dorothy Barnes to the Barnes’ property, known by court file # 1993-3647.

A search of the Supreme Court Registry has failed to produce this file, however, and it appears to have been mislaid. There is, however, a second Quieting Application by Dorothy Barnes filed the same day, known by court file #1993-3644, which does exist. This latter Quieting Application was for land unrelated to the property in dispute here. [ 43 ] On 30 November 1993, Ray Bursey, Sr., on behalf of Fort Amherst, filed an adverse claim to Quieting #1993-3647, in which Fort Amherst took specific exception to the disputed easement as depicted in the Wade survey.

In his affidavit filed in support of the adverse claim Ray Bursey, Sr. states, in part: 7. THAT my family and I have carried on business in Quidi Vidi Village and in very close proximity to the alleged right of way since about the year 1945 to the date hereof;

8. THAT throughout this period, I have never known any person or corporation to use the Fort Amherst property without my express permission to gain access to the Barnes property; 9.

THAT this adverse claim is filed for the purpose of opposing the grant of a right of way by this Honourable Court over the Fort Amherst property and the adverse claimant will argue that such a right of way does not exist; [ 44 ] Defence witnesses, Randy Walsh and Craig Barnes (the First Defendant), point to a letter from Crown lands, dated 16 August 1993, as evidence that the Crown had no problem with the Quieting application of Dorothy Barnes for the Barnes’ property. I disagree.

The letter itself is ambiguous for it simply references “Re: Quieting of Title Property of Dorothy Barnes Property – Quidi Vidi Village”, and is addressed to the law firm, Halley Hunt. On 27 July 1993 a lawyer with that firm sent Crown lands the Quieting of Titles of Dorothy Barnes in #1993- 3644 [8] with the survey attached. I conclude that the letter from Crown lands relates to this property and not the property subject to Quieting #1993-3647 in which Ray Bursey, Sr. filed the adverse claim. Nothing turns on this point, however, as neither Quieting has been pursued.

I address it simply in response to the assertions by Randy Walsh and Craig Barnes. [ 45 ] Both Craig and John Barnes (the Third Defendant) testified that they were aware that a Quieting of Titles had been started, but the matter was being handled by their late brother, Kerry Barnes, and Randy Walsh. Neither could offer any concrete evidence of steps taken to pursue the Quieting after the adverse claim was filed. In addition, Kerry Barnes died in 2002 and neither could recall any family discussions regarding the Quieting after his death.

They felt that Randy Walsh may be handling it. [ 46 ] For his part, Randy Walsh testified that he made a number of efforts to locate the file, but to no avail. While counsel for the Barnes suggested in his final submission that the Quieting will be pursued, I conclude that after the death of Dorothy Barnes, and the filing of the adverse claim, it was effectively abandoned.

Further, if the Barnes were serious in pursuing the Quieting, they could have easily acquired a copy of the file from their legal counsel. [ 47 ] The abandonment of the Quieting is relevant to the question of whether the Barnes acquiesced to the erection of a chain barrier across the disputed easement by Fort Amherst (see, infra ). The 23 October 2009 Conveyance [ 48 ] Dorothy Barnes died on 4 November 1993. Letters of Administration of Ms.

Barnes’ estate were granted to her son, Craig Barnes, on 16 September 2009. [ 49 ] By a Deed of Conveyance, dated 23 October 2009, Craig Barnes, as administrator of the estate of Dorothy Barnes, conveyed two parcels of land to himself, one of which has no relevance here and the other is as described in the Wade survey. However, the Wade survey includes the land acquired by John Charles Barnes from the estate of Ellen Mallard on 18 April 1973, but is larger than that so acquired, specifically in the area that fronts on Heale’s Road (now Stone’s Road).

I will have more to say about the Wade survey later in this decision. [ 50 ] With the inclusion of the Wade survey in this conveyance from Craig Barnes, (as administrator), to himself, the disputed easement now appears for the first time in the title history to the properties of LHH and the Barnes. It does not flow from any of the previously registered instruments. [ 51 ] Nevertheless, the disputed easement is here surveyed as being 10.4 meters wide and 15 meters long.

The written description states that the land conveyed is “together with a right of access over that portion of the aforesaid right-of-way leading to the New Meadow running from a public right-of-way, as registered on Roll 162, Frame 1685 … ”. [ 52 ] The reference to a previously registered “public right-of-way” is somewhat misleading. In reality, Roll 162, Frame 1685 is a Notice of Expropriation of lands then owned by Fort Amherst.

While the term “public right-of-way” appears in the Notice, as we shall see, the expropriation was to facilitate a turn-a-round for the City’s snow clearing equipment. [ 53 ] The Wade survey, as attached to the 2009 conveyance, does not reflect the fact that in 1996 a brother of Craig Barnes, Kerry Barnes, built his home on Barrows Road, thereby taking up much of the frontage on that road and blocking what would have been access to the Barnes’ property. [9] [ 54 ] There was no conveyance of this property to Kerry Barnes. The land on which this house rests thus remains in the estate of Dorothy Barnes.

The Lis Pendens [ 55 ] On 9 June 2015 Craig Barnes, in his capacity as Administrator of the Estate of Dorothy Barnes, filed a lis pendens at the Registry of Deeds, attaching the Wade survey and claiming that this was the property which was subject to a Quieting of Titles in court file # 1993 St. J. No. 3644. The lis pendens was directed toward Raymond Bursey, Fort Amherst, the Flakehouse Limited and RLB Holdings.

The lis pendens was written and witnessed by Randy Walsh and filed at a time when LHH was negotiating with Fort Amherst for the purchase of its property in Quidi Vidi. [10] [ 56 ] As noted, on 22 September 1993 Dorothy Barnes did indeed apply for a Quieting of Titles to certain lands in Quidi Vidi, known to the court as 1993 St. J. No. 3644, for land that has no relevance to the disputed easement. Therefore, insofar as the lis pendens was intended to convey that the Quieting in file 1993 St. J. No. 3644 concerns the disputed easement, it is in error.

As already discussed, the relevant Quieting, being No. 3647, was abandoned after the filing of the adverse claim in November 1993. The 9 August 2017 Conveyance

[57] On 9 August 2017, Craig Barnes conveyed the land described in the Wade survey[11] to himself, John Barnes and StephenBarnes (the Fourth Defendant) as tenants in common. As before, the description in the Wade survey has not been revised to account forthe house constructed by Kerry Barnes.

Summary and Conclusion [58] To summarize, there is no express grant of an easement in the LHH chain of title (or the Barnes’ chain of title, for that matter),leading the Barnes property or otherwise. Rather, access to what was then refered to as the “new meadow” was facilitated in the 1900Deed of Partition, not by the creation of an easement, but by the exclusion of a portion of the southwest corner of Heale’s Field from theconveyance to Patrick Mallard. This exclusion is confirmed in the subsequent conveyances in 1929 (to William Cook) and 1932 (to JohnSquires).

However, the disputed easement is at the northeast corner of that field. While the 1918 Plan depicts a “Right of Way to NewMeadow”, no easement is expressly reserved in the deed to which it is attached. [59] The disputed easement first appears in the Wade survey, prepared on 7 February 1993, in anticipation of a Quieting of Titlesapplication by Dorothy Barnes. Ms. Barnes died on 4 November 1993 and an adverse claim was filed by Fort Amherst on 30 November1993.

The Quieting was not pursued thereafter. [60] Insofar as the registered title history is concerned, the disputed easement first appears in the 2009 conveyance from CraigBarnes, as administrator, to himself. It is trite law that the Barnes, as owners of the asserted dominant tenement, could hardly grant tothemselves the right to an easement over the lands of another (Fort Amherst at the time, and now LHH). [61] For the foregoing reasons, there being no evidence before me of an express grant of the disputed easement, the Barnes’ claimto an easement by grant must fail. Is there an easement by prescription?

The Evidence and Analysis The Legal Principles [62] The Barnes also claim that there exists a private easement by usage, known as an easement by prescription. In the alternative,they argue that there exists a public easement. [63] Prescriptive easements are established by “user of right”, which is practiced nec vi (“without violence”) nec clam (“notsecretly”) and nec precario (“without permission”) (see Cooper v. Dawe, 2015 NLTD(G) 25). [64] In Kennedy v. Hickey, 2011 NLTD(G) 120, LeBlanc, J. provided the following useful

summary of the law regardingprescriptive easements in this jurisdiction (at paragraphs 38 – 42): 38. In Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 (Nfld. Dist. Ct.), Steele, C.J.D.C. (as he then was) referred to two methods bywhich prescriptive easements can be claimed in this Province — claims based on lost grants and prescription at common law. 39.

For claims based on lost grants, Steele, C.J.D.C. stated the following at paragraph 27 in Henley: The fiction of the lost modern grant is explained by Jackson, The Law of Easements and Profits, at p. 119, as follows: To protect long-established rights from the rigour of the law relating to immemorial prescription the courts invented the fiction of the lostmodern grant. Where a right can be shown to have been enjoyed for twenty years or more the court will assume that it owes its origin toa lost grant, whether that be a deed, a royal charter, an ecclesiastical faculty or a ministerial consent under statute.

The court, it has beenwell observed 'is endowed with a great power of imagination for the purpose of supporting ancient user'. 40. To support a prescriptive claim based upon the common law, Steele, C.J.D.C., at paragraph 28 in Henley, went on to hold that, "itmust be shown to have been 'user as of right', that is, having been enjoyed [without] violence; ... not be secret and ... not be permissive."He went on to refer to the explanation of a prescriptive claim at common law found in G.C.

Cheshire, Cheshire's Modern Law of RealProperty, 12th ed. (London: Butterworth, 1976) at pages 538-40, and specifically to the comment that the law of prescription at commonlaw and based upon presumption of a lost grant rests upon an acquiescence by the owner of the property. To be true acquiescence, theservient owner must be shown to have knowledge of the acts done, the power to stop the acts or to sue in respect of them, and abstinenceon the owner's part to exercise that power. As well, the usage must be continuous for a sufficient period of time . 41.

Having said all of this, it is also of significance to note the distinction to be made between the concepts of adverse possession aswe know it in our law and a prescriptive easement. This distinction was referred to in Maher v. Bussey (2006), 2006 NLCA 28 ,256 Nfld. & P.E.I.R. 308 (N.L. C.A.), where Welsh, J.A., at paragraph 42, stated:

The rationale for distinguishing between the concepts of adverse possession and prescriptive easement is discussed in Ziff, Principles ofProperty Law, 3rd edition (Toronto: Carswell, 2000), at page 353: Although prescription resembles adverse possession, the two concepts are distinct. Prescription, as that term is used in this context,applies to non-possessory rights, and so can be supported by acts amounting to far less than the degree of control that is required to makeout a squatter's claim [of adverse possession].

Prescription involves the acquisition of a right that encumbers some other landowner'sinterest, and may limit further use of the servient tenement, whereas in most jurisdictions adverse possession serves to extinguish theright of action of the true owner and effectively leads to the usurpation of that owner by the squatter. ... In the Bussey case, the claim argued was based upon adverse possession and apparently not prescriptive easement. 42.

It also seems clear that the required usage in order to acquire a prescriptive easement must be continuous for a long enough periodto give rise to a presumption under the doctrine of lost modern grant or at common law. There appears to be no set timeframe for suchusage to be accepted as sufficient (see Henley v. Ryan and Carew v. Rockwood (1993), (NL SC), 112 Nfld. & P.E.I.R.299 (Nfld. T.D.). In the Henley case, 14 years of usage was held not to be sufficient and similarly in Bayside Enterprises Ltd. v. Boulos(1982), 39 Nfld. & P.E.I.R. 451 (Nfld. T.D.), 13 years of usage was held not to be sufficient.

According to Cheshire's Modern Law ofReal Property, (12th ed.) at page 544, the "... general rule is that 20 years enjoyment is enough to raise a presumption of a prescriptiveeasement". [65] As it relates to easements by prescription, the Ontario Superior Court, in Duncan v. Beach O’Pines Assn., 2011 ONSC 2349observed (at para. 39): 39. Courts are understandably cautious about finding easements where no direct grant has occurred.

In part, this is because theeasement by definition diminishes the servient tenement and enhances the dominant one, but without the exchange of consideration thatwould normally accompany an express grant. In effect, the dominant tenement is getting something for nothing, and the servienttenement is not compensated for its loss. Similarly, there is a risk of penalizing the servient tenement owner for having allowed asituation to occur when the intention might have been kindness or "good neighbourliness" (394 Lakeshore Oakville Holdings Inc. v.Misek, supra. at paras. 95 & 96).

As a result, there needs to be clear and unambiguous evidence in support of the prescriptive easementclaim. [66] As noted, in the alternative the Barnes argue that there exists a public easement. In Reed v. Lincoln (Town), (ON CA), [1974] O.J. No. 2185, 53 D.L.R. (3d) 14 (C.A.) the Ontario Court of Appeal had the following to say regarding sucheasements (at paragraphs 12 and 14): 12. Whether the road in dispute was dedicated by a previous owner as a public highway is a question of fact.

In order that a publichighway may be established by dedication two conditions must be satisfied: (1) there must be on the part of the owner the actual intention to dedicate; and (2) it must be shown that such intention was carried out by the way being thrown open to the public and that the way has been acceptedby the public. Williams v. Toronto (City), (ON SC), [1946] O.R. 309, [1946] 4 D.L.R. 278 (H.C.); Folkestone Corp. v. Brockman etal., [1914] A.C. 338. 14. The defendant was required to prove an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as apublic highway.

No inference of dedication, of course, arises from the use of the road in dispute by persons travelling to and from thecamp, since such user is pursuant to the exercise of the camp's right to the use of the private road which the owners of the Reed farmwere obliged to afford them. The evidence establishes that virtually the only vehicular traffic on the road in dispute is of this character.Evidence of the use of the road by the public is merely evidence from which the intent to dedicate may be inferred (per Lord Kinnear inFolkestone Corp. v. Brockman, at p. 352).

Such an intention ought not be too readily inferred from the use by members of the public of aroad traversing private property in a rural community, especially in a locality where the normal system of roads did not develop. In thesecircumstances the owner of the property may well, in a neighbourly spirit, permit local residents to use a way across it for theirconvenience without having any intention of dedicating the road as a public highway.

The inference of neighbourly tolerance is the morelikely when dedication is sought to be established at a period when the area is in a relatively early stage of its development: see Dunlopv. Township of York (1869), 16 Gr. 216 at pp. 222-3; Macoomb v. Welland (Town) (1907), 13 O.L.R. 335 (C.A.); Taylor v. Clanwilliam(Rural Municipality), (MB CA), [1924] 2 W.W.R. 1153, 34 Man. R. 319, [1924] 4 D.L.R. 218 (C.A.).

[67] In my assessment of the evidence I am guided by the foregoing principles. The Fact Witnesses [68] Testimony was received from nine (9) witnesses with varying degrees of familiarity with the history of the LHH and Barnesproperties. [69] The credibility of witnesses is a consideration in this case, particularly as it relates to the usage of the disputed easement. HereI am guided by the observations of O’Halloran, J.A. in Faryna v. Chorny, (BC CA), [1951] B.C.J. No. 152, [1952] 2D.L.R. 354 (C.A.) (at paragraph 10): 10.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth.

Again a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say "I believe him because I judge him to betelling the truth," is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of adangerous kind. [70] At the outset I am compelled to say that I agree with counsel for LHH in that there was a degree of collision amongst theBarnes’ fact witnesses. All are either childhood friends or relatives of each other.

Yet each witness steadfastly testified that they hadnever discussed the matter of the disputed easement amongst themselves. Taken at face value alone I would find this hard to believe,human nature being what it is. However, this is a fortiori case given some of the remarkable similarities in their evidence. For example,each estimated the original easement as 100 feet wide, no more, no less. That is not to suggest that all of the fact witnesses were lying.

Rather, I simply do not accept that there was no discussion amongst them regarding their evidence. [71] That said, in order of their appearance the fact witnesses are, as follows: Ray Bursey, Jr. [72] Ray Bursey, Jr. was the sole fact witness called by LHH. He was born in 1958 and testified as to his knowledge of the Barnes’and Fort Amherst (now LHH) properties in Quidi Vidi.

His father, Ray Bursey, Sr., was the owner of Fort Amherst, and latterly theFlakehouse Restaurant, which opened in 1986 and was constructed more or less on the site of the old Fort Amherst fish plant. (In 1982the Fort Amherst plant was destroyed by fire.) As a young man in the early 70s, when not in school, he worked for his father in QuidiVidi. [73] Ray Bursey, Jr. testified that he was not involved in the negotiations for the sale of the Fort Amherst property to LHH. Hisbrother, as executor of his father’s estate, acted on this transaction.

He has no interest in the outcome of this dispute and there are norepercussions for him, or his family, should an easement be found to exist[12]. As counsel for LHH put it, “he has no skin in the game”. [74] Ray Bursey, Jr. testified to the use of the LHH and Barnes’ properties, commencing in the early 70’s. He denied that thedisputed easement ever existed, as alleged by the Barnes. [75] Of the witnesses, I found the evidence of Ray Bursey, Jr. to be both credible and trustworthy in its own right. Mr. Bursey nolonger has an ownership interest in the LHH property and no stake in the outcome of this action.

He did not tailor his evidence toachieve a particular outcome (the same cannot be said of some of the other witnesses) and was candid in his recollection. He could notrecall, for example, whether his father gave permission for the spreading of fish nets. There were, however, notable instances where hisrecollection was corroborated by other evidence. Ann Barnes [76] Ann Barnes has lived in Quidi Vidi for some 48 years, and is the wife of the Third Defendant, John Barnes. Randy Walsh [77] Randy Walsh’s sister dated Kerry Barnes (the brother of Craig, John and Stephen Barnes) in the early 1970’s.

Randy Walshtestified that he started socializing in Quid Vidi around 1971, at the age of 18 (he is 64 now). He worked as a water and sewer supervisorfor the City from 1980, until the mid-1990’s, and was involved in the installation of water and sewer in Quidi Vidi in the 1980’s. Hepresently resides on Gower Street, St. John’s, but has owned property in Quidi Vidi since 1978. At present, he is Chair of the Quidi VidiProperty Owners Inc. and the Quidi Vidi Slipway Committee Inc. [78] Randy Walsh testified on behalf of the Barnes, whom he described as “salt-of-the-earth people”.

He is a self-styled consultantfor the Barnes whose compensation is limited to “a hug and a kiss”. [79] When a

summary trial was first proposed in this matter, the Barnes signed a document in which they gave Randy Walsh,“permission to speak on our behalf with regards to our property and any legal matters that arise from it”. While Randy Walsh is not alawyer, John Barnes testified that he should be one. [80] Since the early 1980’s, Randy Walsh has worked with the Barnes to seek the City’s permission for a cul-de-sac developmenton their property. One such proposal saw the cul-de-sac being accessed from Barrows Road, in the area where, in 1996, Kerry Barnesbuilt his house. In the latest proposal, dating from 1995, access to the cul-de-sac is proposed via the disputed easement.

[ 81 ] Randy Walsh did not present as a dispassionate fact witness, but rather as an advocate for the Barnes. He was argumentative throughout, culminating with his belief that LHH’s desire to resolve the easement question was part of a larger conspiracy to deprive the Barnes of the value of their land. The alleged co-conspirators included a consulting company, a former Mayor of St. John’s, the Mayor’s nephew, LHH and other residents of Quidi Vidi, who he described as LHH’s “puppet”.

Needless to say, on the facts before me I saw no evidence whatsoever of such a “conspiracy”. [ 82 ] For the foregoing reasons, I approach the evidence of Randy Walsh with particular caution. Walter Barrington [ 83 ] Walter Barrington testified for the Barnes. He was born in 1952 and has lived in Quidi Vidi until now. Mr. Barrington testified that he knows Randy Walsh and the Barnes family, although not on a social level. He is a member of the Quidi Vidi Village Properties Owners Inc., as chaired by Randy Walsh.

Daniel MacInnis [ 84 ] Daniel MacInnis was born in Quidi Vidi in 1958, and with the exception of 1964-65, has lived there until now. He resides in a new house on Quidi Vidi Village Road, which was constructed on the site of his family home. He grew up with the Barnes and sees them now and then. Barry Pittman [ 85 ] Barry Pittman was born in Quidi Vidi in 1967 and is currently 51 years old. He presently lives in the Goulds, but lived in Quidi Vidi up until November 1989. [ 86 ] He currently owns two fishing stages and a piece of vacant land in Quidi Vidi.

He testified that he returns there regularly and since 2015 has operated a boat tour from that location. He knows the Barnes family well and related that growing up in Quidi Vidi, everyone were “friends”. He is a director of the Quidi Vidi Village Slipway Committee Inc., together with Randy Walsh, Craig Barnes and John Barnes. [ 87 ] Barry Pittman testified that the disputed easement was always called “Barnes’ right-of-way”. This is a curious label, as no other fact witnesses, including Craig and John Barnes, referred to it as “Barnes’ right-of-way”. I discount Mr.

Pittman’s evidence on this point as a misguided attempt to assist the Barnes in this litigation. It is akin to his unsolicited remark that “Eli Barnes never asked permission”, to store nets, when he would have no way of knowing this. I approach Mr. Pittman’s evidence with caution. Randy Ring [ 88 ] Randy Ring was born in Quidi Vidi in 1953 and is presently 65 years of age. In 2008 he moved to his current residence in Airport Heights. While he left Quidi Vidi a couple of times in the 1970’s (for a total of three years), he lived and spent his childhood and adolescent years in that community.

Craig Barnes [ 89 ] Craig Barnes is the Second Defendant. He was born in 1961 and to date has lived in Quidi Vidi. His brothers, John and Stephen Barnes, are the Third and Fourth Defendants. His brother, Kerry, died in 2002. They are the male children of John Charles and Dorothy Barnes. [ 90 ] Craig Barnes, together with his brother John and two of the Barnes fact witnesses in this case, Randy Walsh and Barry Pittman, is a director of the Quidi Vidi Slipway Committee Inc.

He is also a member of the Quidi Vidi Village Property Owners Inc. [ 91 ] He described Randy Walsh as a close family friend and acknowledged that the other fact witnesses were friends of his as well. He shares in Randy Walsh’s belief in a conspiracy. [ 92 ] He denied discussing the disputed easement with any of the other witnesses before testifying. I have some difficulty in accepting this denial. In any event, as a party to the action he had the benefit of listening to the evidence of others before taking the stand.

When asked how he knew that Crown lands “approved” of his mother’s Quieting application, he responded that this was “based on Randy Walsh’s testimony”. He acknowledged that when testifying, some of his evidence he knew firsthand and other things he learned from Randy Walsh. John Barnes [ 93 ] John Barnes is the Third Defendant. He was born in 1949 and is presently 68 years of age. He has lived in Quidi Vidi to date.

Like his brother, Craig Barnes, he has had the benefit of sitting throughout the trial and listening to the evidence of the other fact witnesses. [ 94 ] He described Randy Walsh as a “good friend of the family” who would help anyone out. In his words, Quidi Vidi is a “close knit community”, a “village”. As a consequence of this litigation, he expressed the view that there was “skullduggery” going on.

The Evidence and Analysis [ 95 ] While a determination of whether or not, on the balance of probabilities, there exists an easement by prescription, involves a consideration of the whole of the evidence, for clarity, I have analyzed the evidence under several subheadings. The subheadings correspond largely to the various incidents of usage advanced by the Barnes. As we shall see, the usage claimed is largely public. There is very little evidence of private usage by the Barnes since acquisition of their property by John Charles Barnes in 1973.

Was There a Fence in 1973? [ 96 ] Ray Bursey, Jr. testified from his earliest memory, in 1973, that there was a wooden fence made of old-fashioned “longers” running from Barrows Road, across the disputed easement, demarking the western boundary of the Fort Amherst (now LHH) land and eastern boundary of the Barnes’ property. He recalled that towards the Stones’ house there was an opening. He testified that he witnessed this fence being taken down at some point between 1976 – 1977 by the third defendant, John (“Johnny”) Barnes and some others.

He testified that he knew John Barnes growing up, as together they both worked for his father. He felt that they had a good relationship. [ 97 ] For his part, John Barnes testified that during the summer of 1973, (he would have been age 24 at the time), after his father purchased the Barnes’ property from Agnes Mallard, he witnessed his father and another individual, Bill Cody, erect a fence along the property’s eastern boundary. The fence was comprised of wooden stakes and joined by wooden longers, brought to the site by Bill Cody.

According to John Barnes, while the fence went across the disputed easement, his father made provision for the removal of the longers by laying them on spikes in the posts. John Barnes denied that he had any role in the removal of the fence, but offered that it simply blew down a few months later. [ 98 ] Craig Barnes testified that in 1973 (when he was 12 years old), he recalled his father driving stakes in the ground with another person, Bill Cody, and connecting these with longers. He offered that the two longers across the disputed easement could be easily removed.

According to Craig Barnes, the fence was primitive and taken down by his father two-three months later. He agreed that at the time his father did handyman work for Agnes Mallard, but maintained that the stakes he saw were not being installed for Ms. Mallard. When pressed during cross-examination on how he could have such a vivid memory for one so young, he acknowledged that he “very vaguely” remembered the stakes.

It is curious that Craig Barnes, ostensibly without any prior discussion with his older brother, John, would nevertheless remember that the two longers across the disputed easement could be easily removed. [ 99 ] The question of the fence was put to each of the remaining fact witnesses. For his part, Randy Walsh testified that he could not recall a fence in 1971, or thereafter. Walter Barrington could recall some fence posts and longers in the vicinity at Barrrows Road, near Mallard Cottage, but did not remember a fence running across the disputed easement.

Randy Ring testified that he was “not sure”. [ 100 ] The inability of these fact witnesses to remember the fence in 1973 is best accounted for by the fact that this was 45 years ago, when they were in their youth. The same may be said, for example, of the apple tree dating from the 1950’s still present on the Barnes’ property.

Some did not recall it at all while others placed it at varying locations, including in the middle of what would be the softball field [13] . [ 101 ] The existence of a wooden fence, as recalled by Ray Bursey, Jr., is corroborated by the enlargement of an aerial photograph taken on 27 August 1973 and 1975 topographical map based on that aerial photograph. On this photograph there is a fence which is clearly visible extending from Barrows Road toward the Stones’ house and across the disputed easement.

There is also a second fence extending from Stones’ house toward the disputed easement. [ 102 ] In the aerial photograph there is no visible disturbance of the ground in the location of the disputed easement.

As we shall see, this stands in marked contrast to photographs taken in the 1980’s, when the fence is no longer present. [ 103 ] While confirming that the 1973 aerial photograph showed the fence, surveyor Ray Guy, who testified for LHH, stated candidly that he could not tell what kind of fence it was, for how long it was present, or whether there may have been a gate. [ 104 ] A topographical map was prepared by the Government of Newfoundland and Labrador “Lands and Surveys Division” in 1975, based on the 27 August 1973 aerial photograph. It depicts the same fence as shown in that photograph.

As on the photograph, there is a dirt area to the north of the disputed easement extending south to the Stones’ house. It adds no new evidence, other than confirmation of what is apparent from the aerial photograph on which it is based. [ 105 ]

Schedule “A” to the 18 April 1973 conveyance to John Charles Barnes does not show a fence demarking the western boundary of what was then the land of John Squires (followed by Fort Amherst in 1975 and now LHH). The survey was prepared by George Way, although the

Schedule “A” is undated. George Way is deceased, but his son, Robert Way, himself a land surveyor, testified at the request of the Barnes. In his opinion if there was a fence present, his father would have shown it on the survey. This opinion was shared by surveyor, Ray Guy, who testified that if a fence were present he would expect it to be shown. [ 106 ]

Schedule “A” is undated, however. It is therefore conceivable that it was prepared sometime before the fence was erected. [ 107 ] The Barnes point to a survey dated 1970, attached to the 9 September 1975 conveyance from John Squires to Fort Amherst. It depicts a cross hatch in the area of Mallard Cottage and a further cross hatch at the southern end of the boundary. Cross hatches on the remaining boundary line between the two are not readily visible.

If the cross hatches are taken to denote a fence (the survey has no key), the Barnes argue that this is evidence that no fence existed across the disputed easement in 1970. [ 108 ] The fence visible in 1973 is not apparent in an aerial photograph taken on 6 August 1948. Therefore, based solely on the aerial photographs one can say with confidence that the fence visible in 1973 was erected sometime after 1948. That said, the 1948 photograph is noteable for other reasons. [ 109 ] In the 1948 photograph the Stones’ property is shown as fenced, as is Mallard Cottage.

However, as is the case in the 1973 photograph, there is no noticeable disturbance of the ground in the area of the disputed easement [14] . Rather, Stone’s Road is visible, as is a gravel driveway entering the Stones’ property. What appears to be a footpath can be seen exiting the fence on the back of the Stones’ house, meandering up towards Stone’s Road to the south. Whether the path was used to access a well which was reportedly on the side of the Stones’ house is an open question.

Either way, the footpath bears no resemblance to the disputed easement. [ 110 ] Based on the 1973 aerial photograph, I am satisfied that as of August 1973 a fence existed which ran from Barrows Road to the Stones’ property and across the disputed easement. This fence marked the common boundary of what is now the LHH and Barnes

properties. [ 111 ] It is possible that the fence was erected by John Charles Barnes during the summer of 1973, after his purchase of the property from Agnes Mallard, but before the aerial photograph was taken. [ 112 ] However, I do not accept the evidence of Craig and John Barnes that their father deliberately arranged the longers on the fence so that they could be removed to provide access through the disputed easement.

The aerial photographs taken in 1948 and 1973 show no evidence of use of the disputed easement to the west of the fence which is visible in 1973. [ 113 ] Rather, to the extent access was provided, it was through a gap between this fence and that of the Stones, already described, adjacent to the Stones’ house and wide enough for foot traffic. [ 114 ] The Stones’ fence as it existed in 1973, protruded at an angle of 120° and extended into the disputed easement.

Sometime between 1977 and 1978 it was realigned to 90°, its current location. [15] Once realigned, what would appear as an area of use inside the fence, would now appear outside the fence in the vicinity of the disputed easement. [ 115 ] The common boundary between the Barnes and LHH properties is in the order of 165 ꞌ [16] . No explanation was offered by Craig Barnes for why his father would erect a fence of this length (even a primitive one) only to take it down two-three months later. He accused Ray Bursey, Jr. of lying when he testified that there was a fence which was removed in 1976 – 1977.

No motive was offered for why Ray Bursey, Jr. would lie on such a detail. [ 116 ] Nor do I accept the evidence of John Barnes that this fence only lasted a couple of months after which it fell over and was somehow absorbed into the landscape. Unless physically removed, a wooden fence, even a poorly constructed one is likely to remain in some form for years to come. The more probable explanation is that it was indeed removed as recalled by Ray Bursey, Jr.

I accept that this occurred sometime between 1976 and 1977. [17] [ 117 ] The presence of this fence is inconsistent with the use of the disputed easement as a public or private right-of-way. To the extent what is now the Barnes’ property may have been accessed while this fence was present, as noted, there was a gap in this fence and that demarking the Stones’ property wide enough for foot traffic. However, this opening bears no resemblance to the disputed easement.

The Spreading of Fishing Nets [ 118 ] Walter Barrington recalled that as a young boy in the late 1950s (when he was roughly eight years old) and early 1960s, he worked for a local fisherman, Eli Tucker. He testified that Mr. Tucker used land then known as “Stone’s Field”, and owned by John and Agnes Mallard, to spread his salmon nets and cod traps to dry. There were in the order of ten cod traps, and according to Mr. Barrington, we were looking to spread them “wherever we could”. He was a young boy at the time and did not know whether or not Eli Tucker had sought permission from anyone to spread his nets.

However, the Mallards were well-respected in the community, and while he could not say for certain, he thought permission would have been sought for the use of their land. At the time Eli Tucker sold his fish to Fort Amherst, but he did not know whether any further permission was sought to access the field [18] . [ 119 ] Mr. Barrington recalled that at some point, Ray Bursey, Sr. and Eli Tucker had a falling out, but could not specify when.

Other witnesses also testified that there was a point when Ray Bursey, Sr. and Eli Tucker did not see “eye to eye”. [ 120 ] Ray Bursey, Jr. could recall fishing nets being spread on the Barnes’ property in the 1976-77 time period, but testified candidly that he did not know whether or not his father consented to access over the Fort Amherst property for this purpose. He did recall that Fort Amherst purchased fish from Eli Tucker in the early 70s and that his father and Mr. Tucker were then on good terms. The rift in their relationship began in 1979 – 1980 when Mr. Tucker was excavating for his house.

This led to a letter of complaint to the City. [ 121 ] The rift in the relationship is corroborated by a letter dated 20 September 1979 from legal counsel for Fort Amherst to Eli Tucker, which stated: By a Deed of Conveyance dated the 9th day of September 1975 John Squires transferred the property in question to Fort Amherst Sea Foods Limited, and we are therefore putting you on notice that you are trespassing on this property and my client will hold you responsible for all damages, and that if you continue to trespass on the said property we will have no alternative other than carry out our instructions and proceed to court. [ 122 ] Subsequently, Fort Amherst took Eli Tucker to court in an action for trespass.

The dispute did not concern the property on Stone’s Road, but rather concerned a 15-foot strip of land on the waterfront in Quidi Vidi, being one of the parcels of land conveyed to Fort Amherst by John Squires on 9 September 1975. It was resolved in favour of Fort Amherst (see Fort Amherst Seafoods Ltd. v. Tucker , 1985 CarswellNfld. 363 , (1985) 34 A.C.W.S. (2d) 402 (S.C.) ). [ 123 ] Randy Walsh testified that he knew Ray Bursey, Sr. and knows Ray Bursey, Jr. and that he “did not think” they gave Eli Tucker permission to access the Barnes’ land to spread his nets.

He could offer no evidence for this thought, however. [ 124 ] As for the spreading of nets, I accept that Eli Tucker did so during the 1960’s and early 1970’s as recalled by Walter Barrington, on what was then the Mallard property and property of John Squires. However, I do not accept that the disputed easement was invariably accessed for this purpose. What is more probable is that the nets were spread wherever there was comparatively level ground and no bushes or trees in which they would become entangled. As Mr.

Barrington stated, we spread the nets “wherever we could.” In the late ’70s, the land of Fort Amherst adjacent Stone’s Road, as well as portions of the Barnes’ land met this requirement, in particular. [ 125 ] Further, much of the evidence regarding the spreading of nets was prior to John Charles Barnes’ purchase of the Barnes’ property in 1973. There is no evidence that the Barnes themselves were engaged in this practice, or that consent for the use of their land was sought and obtained, so as to support a private easement.

[ 126 ] After removal of the wooden fence in 1976-76 there was no impediment to spreading nets along the common boundary of the Fort Amherst and Barnes’ properties and no need to use the disputed easement for this purpose. [ 127 ] During this period it is probable that this was done with the consent of Ray Bursey, Sr. However, after the falling out in the late 1970’s, it is likely that any consent to the use of Fort Amherst land was revoked. As we shall see, Ray Bursey, Sr. was anything but reticent in enforcing what he perceived to be the property rights of Fort Amherst. [ 128 ] In

summary, for the foregoing reasons, the spreading of fishing nets by Eli Tucker does not support either the private or public existence of the disputed easement. Softball [ 129 ] Randy Walsh testified that he played softball once on what, as kids, they called Stone’s Field, and that the disputed easement was accessed for this purpose. [ 130 ] Craig Barnes likewise recalled playing softball in his youth, but would have stopped around 1975. He sketched the ballfield on a photograph as being on the Barnes’ property opposite the disputed easement.

John Barnes’ evidence effectively mirrored that of his brother. [ 131 ] Walter Barrington could recall playing softball in the area of the disputed easement in the late 1950s to mid-1960s. He was able to point out the approximate softball diamond adjacent to the Stones’ fence. In his recollection, it appears that the disputed easement, as well as the property of John Squires, was used in part for this purpose, with the “outfield” possibly lying in the Mallard property. [ 132 ] Like others of his generation, Randy Ring could recall playing softball on what was known to youth at the time as Stone’s Field.

According to Mr. Ring, the ball diamond was adjacent to Stones’ house, leading to the belief that the property belonged to that family. The “ball field” as recalled by Mr. Ring encompassed the disputed easement, as well as other land of Fort Amherst and the Barnes, the “outfield” generally being on the Barnes’ property. According to Mr. Ring, if the bog pond water was high, home plate would be moved further back (i.e. towards Stone’s Road).

Home plate, as he recalled it, was in the disputed easement. [ 133 ] As a teenager, Ray Bursey, Jr. also recalled playing softball on the land of Fort Amherst, on what was then commonly believed to be flat land owned by the Stones, including the disputed easement area. The Fort Amherst land in the area and some of what became the Barnes’ land was relatively flat and dry whereas initially, at least (before the addition of fill in the 1980’s), much of the Barnes’ land was boggy and overgrown. As such, it was unsuitable for sports. [ 134 ] Mr. Barrington and Mr.

Ring’s recollection largely accords with that of Ray Bursey, Jr. to the effect that the flat land of Fort Amherst and the Barnes formed the ball field. [ 135 ] Virtually all witnesses had fond memories of playing softball in the area of the disputed easement. The ground in this area was one of the few suitable locations in the community for this purpose, and I accept that this activity took place from time to time during the summer months. What I do not accept, however, is that the ball players utilized the disputed easement to play softball exclusively on the Barnes’ property.

To the contrary, prior to removal of the wooden fence in 1976-77, any softball played would likely have been on the land of Fort Amherst. Before the erection of this fence and after its removal, I can accept that the “ballfield” expanded to include portions of both the Barnes’ and Fort Amherst’ properties. I can also accept that after the dumping of fill by the Barnes in the early 1980’s, the outfield to this impromptu ballpark expanded further. The disputed easement formed a portion of this ballfield, at least before it was expropriated and paved by the City.

However, it did not serve as a “right-of-way” to the ballfield. [ 136 ] Perhaps of greater significance is the fact that none of the witnesses had a clear idea of on whose land they played softball, or where the legal boundaries lay. This is not surprising, of course, given the age of those involved. For at that age, “the world is truly your oyster”. Those involved simply knew the area as “Stone’s Field”, as it was near the Stones’ house. As the ballplayers grew older (and could hit the ball further), they migrated to “Conners Field” elsewhere in the community.

The ballplayers were neither invitees of the Barnes, nor users as of right, such as to support the existence of an easement. [ 137 ] The occasional use of the area by youth to play softball in the summer does nothing to support the existence of the disputed easement. Skating and Snow Sports [ 138 ] Randy Walsh testified that there was a portion of the Barnes’ property that was boggy and would freeze in the winter. Youth would use it for skating, although he did not skate.

He acknowledged that in the winter, as the ground was frozen, kids could “scrabble everywhere”. [ 139 ] Walter Barrington could recall a marshy area on which the children went skating in the winter. Children would access the ice from various points, depending on where they lived. [ 140 ] The other fact witnesses likewise had memories of skating on the “bog pond” and adjacent marsh in the winter.

All recognized that there was no single passage to this area, as kids would invariably arrive by travelling the shortest distance from their homes. [ 141 ] I can accept that historically some skating occurred on the bog pond and marsh, but I cannot accept that the skaters would invariably access the ice through the disputed easement. There would be no logical reason to do so, for in winter the Barnes’ property can be accessed from virtually anywhere. [ 142 ] There was also some evidence of sliding on “Pittman’s Hill” in the vicinity of the Barnes’ property and the use of snowmobiles.

Like the skaters, I find that this evidence, while it may support some public use of the Barnes property, does not support the existence of the disputed easement. Snowmobiles, like the skaters, would have free range in the winter. Furthermore, I find that the use of snow

machines on the Barnes’ property was sporadic at best. [ 143 ] Like the games of softball, the winter activities of the youth in Quid Vidi had little regard for the niceties of land ownership. They would “scrabble everywhere”. Even if the disputed easement were used by some, they were hardly users of right. [ 144 ] Winter sports on the Barnes’ property do not support the existence of the disputed easement. The Run Away Cows [ 145 ] Randy Walsh testified that a local farmer had cows that would graze on the Barnes’ property, but only after traversing over the disputed easement.

There would be as many as a half dozen cows at a time. [ 146 ] Ray Bursey, Jr. could also recall seeing cows grazing on the Barnes’ land from time to time. [ 147 ] Barry Pittman’s father owned the cows in question, which numbered as many as 27. He described how they would on occasion wander from his father’s hobby farm and find their way onto the Barnes’ property through the disputed easement. The property was less than ideal for grazing, however, as the cows would on occasion wander close to the bog pond. Indeed, he related that at one point a horse got stuck in the bog and had to be rescued. According to Mr.

Pittman these same cows would at times wander as far as the Janeway Hospital, in Pleasantville. His father had the cows until he was age 8 – 9 (1975 – 76). [ 148 ] Walter Barrington also put the business of the cows into perspective. He confirmed that Bill Pittman’s father held a small number of cattle, some pigs and chickens. In the ’60s – ’80s, from May month onward, he would let the cattle roam.

Occasionally, some would wander down to the Barnes’ property and he would send somebody down to bring them home. (I would observe that prior to 1975-76, the cattle could gain access through the gap in the wooden fence discussed earlier.) [ 149 ] There was no evidence that the Barnes were involved in directing the cows. Rather, by all accounts, the cows were acting on their own accord, as cows are want to do, unless directed. I was referred to no authority for the proposition that cows are members of the public, such that by their conduct they might give rise to an easement.

They would hardly qualify as “users of right”. Quite frankly, I am at a loss as to why this “usage” was raised in the first place. The Presence of Car Wrecks [ 150 ] Ray Bursey, Jr. recalled that the Fort Amherst property, as well as the Barnes’ property, was on occasion used as a dump for car wrecks, leading to a confrontation between his father and the City regarding the cost of removal. While not all fact witnesses could recall seeing the car wrecks, there were others who did. For example, Wayne Barrington testified that he could recall seeing one or two car wrecks on Stone’s Field.

A photograph of one such wreck taken in the mid 1980’s, after the dumping of fill, was entered in evidence. It is on Fort Amherst property. [ 151 ] Ray Bursey, Jr.’s evidence is also corroborated by a 14 December 1981 letter from legal counsel for Fort Amherst to the City of St. John’s, requesting permission to erect a fence around its vacant piece of property across from its fish plant (the Stone’s Road property).

Counsel advised that Fort Amherst was facing a problem with people abandoning car wrecks on the property and within the preceding two weeks it had been used as a storage place for three boats, a trailer and a car. [ 152 ] While both the Barnes and Fort Amherst properties were the victims of car wrecks from time to time, I do not accept that the disputed easement was used for this purpose. There is certainly no evidence that the Barnes did so. What evidence we do have shows one such wreck on the land of Fort Amherst. Further, the dumping of car wrecks was sporadic at best and anything but, open and notorious.

Well Water [ 153 ] There was some evidence that prior to the arrival of public water, residents of Quidi Vidi would from time to time utilize local wells and the waters of a local river for this purpose. One such well was adjacent to the Stones’ house although it is not clear from the evidence on whose property it was situate. [ 154 ] For example, Walter Barrington grew up in a family of 11. He recalled that from 1960-1970 on wash days, they would go to the river for water but, as required, would access various wells in Quidi Vidi.

He recalled one such well adjacent to the fence bordering the Stones’ house and another on the Pittmans’ property to the west of the Barnes’ property. Others used these wells and other wells in the community before the arrival of water and sewer. [ 155 ] Walter Barrington testified that water and sewer arrived in the mid 60’s and his house was hooked up in the late 70’s. Before the water was supplied by the City using pumper trucks.

There were also two “Lions’ mouths” [19] installed by the City where residents of Quidi Vidi could access water. [ 156 ] Daniel McInnes likewise recalled that in the late 1960’s residents used a City supplied tap for water. [ 157 ] Craig Barnes recalled that public water arrived in 1969. [ 158 ] I accept that there was a well adjacent to the Stones’ house which may have been accessed from time to time by local residents prior to the arrival of City supplied water in the late 1960’s. This may explain the footpath on the Stones’ property in the 1948 photograph.

Either way, the location of his well is unclear, however, as witnesses were asked to make its location on a map from memory. Whether it was on what became Fort Amherst or the Barnes’ properties remains an open question. In addition, the practice ceased over 40 years ago, and any use of the well after 1973 was minimal, at best. I agree with counsel for LHH that the periodic access to wells does not serve to “create a web of right-of-ways”.

Use by Fort Amherst [ 159 ] Ray Bursey, Jr. recalled that the Stones had fenced a portion of the Fort Amherst property. The Stones had children at the time and his father permitted the encroachment after receiving an acknowledgement of it.

His recollection is corroborated by two letters entered into evidence. [ 160 ] On 17 September 1980 Thomas Stone signed a letter to Fort Amherst acknowledging that he was encroaching on Fort Amherst property with its consent and agreeing to go out of possession upon request. [ 161 ] On 30 November 1993 his son, Wayne Stone, wrote Fort Amherst, also acknowledging the Fort Amherst property and agreeing to the terms of the 17 September 1980 letter. [ 162 ] Ray Bursey, Jr. testified that he obtained his driver’s license in 1975, and from then until aro

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