Linda Barron First Plaintiff / First Defendant by counterclaim And: anthony Barron Second Plaintiff / second defendant by counterclaim And: Jason Osmond First Defendant / first plaintiff by counterclaim And: Angela Osmond Second Defendant / second plaintiff by counterclaim, 2020 NLSC 131

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Barron v. Osmond , 2020 NLSC 131 Date : October 5, 2020 Docket : 201801G4174 Between: Linda Barron First Plaintiff / First Defendant by counterclaim And: anthony Barron Second Plaintiff / second defendant by counterclaim And: Jason Osmond First Defendant / first plaintiff by counterclaim And: Angela Osmond Second Defendant / second plaintiff by counterclaim Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 20, 2019

Summary: The parties were neighbouring cabin owners who each claimed ownership of a small parcel of land; the Plaintiffs by documentary titleand the Defendants by possession and prescription. The Court allowed the Defendants' Application for

Summary Trial, but decided thatthey had not established possessory title because they did not occupy the property for long enough and their predecessors had occupiedthe disputed property without any intention of asserting ownership or excluding the documentary title holders. Appearances: Darlene P. Butler Lucas Appearing on behalf of the Plaintiffs / Defendants by Counterclaim Melissa A. Royle Critch Appearing on behalf of the Defendants / Plaintiffs by Counterclaim Authorities Cited: CASES CONSIDERED: Hryniak v. Mauldin, 2014 SCC 7; Marco Ltd. v.

Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317 (Nfld. S.C.(T.D.)); Young v. Noble, 2016 NLCA 58; Wickham v. Wickham Estate(1977), 17 Nfld. & P.E.I.R. 452, 46 A.P.R. 452 (Nfld. S.C.(T.D.)); Newfoundland v. Collingwood (1996), (NL CA),138 Nfld. & P.E.I.R. 1, 431 A.P.R. 1 (Nfld. C.A.); George v. George, 2012 NLTD(G) 196; STATUTES CONSIDERED: Judicature Act, R.S.N.L. 1990, c. J-4; Limitations Act, S.N.L. 1995, c. L-16.1; Quieting of Titles Act,R.S.N.L. 1990, c. Q-3 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched.

D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This is a contest over the ownership of land. The Barrons and the Osmonds own adjoining cabin properties in Deer Park. Title to each property is rooted in a Crown grant and documented in a continuous chain of title. The parties each claim ownership of asmall portion of land near the border between the properties. I will refer to this land as the Disputed Property.

The lay of the land as ithas been developed over the years suggests to the observer that the Disputed Property is part of the Osmond property but thedocumentary record shows title to the Disputed Property transferred with the Barron property. The Osmonds claim that they and theirpredecessors in title acquired ownership of the Disputed Property by possession. The Barrons on the other hand assert that their legaltitle has not been disturbed. [2] The triggering event for this proceeding was the Barrons construction of fence posts along the Disputed Property. The

Osmonds tore down the fence posts. The Barrons brought this action claiming damages for the destruction of the fence, and a declaration of their title to the Disputed Property. The Osmonds defended the action by claiming that they had acquired title to the Disputed Property by prescription, and therefore had a right to remove the fence. The Osmonds also counterclaimed for a declaration of their title to the Disputed Property. [ 3 ] The Osmonds brought an Application for

Summary Trial under Rule 17A. They ask the Court to find that there is no genuine issue for trial or, alternatively, that if there is a genuine issue for trial then the record is sufficient to decide this contest in their favour and declare their title. [ 4 ] The Application for

Summary Trial was heard by Justice David Hurley, who reserved his decision. Sadly, Justice Hurley passed away before he could render his decision. The parties both applied to the Court for an Order pursuant to the Judicature Act , R.S.N.L. 1990, c. J-4, s. 32(1) (

a) that the Application for

Summary Trial be reheard by another Justice of this Court. I granted this Order and the Chief Justice assigned me to rehear the Application.

Having heard from the parties as to the manner of rehearing, I ordered, pursuant to the Judicature Act , s. 32(2) that I would rehear the matter by reviewing the Affidavits (the Affiants were not cross-examined) and Memoranda filed by the parties, and by listening to an audio recording of the argument made before Justice Hurley. [ 5 ] I have decided for the reasons that follow that the matter should be determined in favour of the Barrons; that I should dismiss the Osmonds’ claim, declare that as between the parties the Barrons have title to the Disputed Property, and allow the Barrons’ claim for damages for destruction of the fence posts.

THE FACTUAL BACKGROUND [ 6 ] The parties filed Affidavits, with attached photos and title documents, and the Barrons filed a transcript of discovery of Warren England and Shirley England. There is substantial agreement about many matters of fact. [ 7 ] Each of the Barrons and Osmonds are the second private owners of their respective property. [ 8 ] The Barrons purchased the property now known as 81 Deer Park Road from Linda Barron’s parents, Eric and Phyllis Dicks, in September 1990. The Dicks had acquired the property by Crown Grant in 1978.

The Disputed Property was included within the survey description attached to each of the Dicks’ Crown Grant and the Deed of Conveyance from Dicks to Barron. [ 9 ] The Osmonds purchased the property now known as 81A Deer Park Road from Warren and Shirley England in September, 2015. The Englands had acquired the property by Crown Grant in 1975. The survey description attached to each of the Englands’ Crown Grant and the Deed of Conveyance from England to Osmond did not include the Disputed Property.

The survey description attached to the Deed of Conveyance from England to Osmond showed the Disputed Property as outside the boundaries of the England property. [ 10 ] Both the Dicks (Barron) and England (Osmond) Crown Grants ran to a Crown reservation around the shore of Gull Pond. The Barron property is to the east of the Osmond property. The Dicks and the Englands each built cabins on the property granted to them by the Crown. The Englands built their cabin, and later replaced it with a more modern structure, on a lower elevation, closer to Gull Pond, and they cleared to the water.

The Dicks’ built their cabin at a higher elevation, and cleared only a path to the water. The Englands and Dicks left a buffer of evergreen trees between their properties, which still remains. [ 11 ] The Dicks and the Englands became friends in the way that neighbouring cabin owners often do. They frequently socialized together and with other neighbours when they were at their cabins. Some of this social activity took place around a fire pit on the Disputed Property. [ 12 ] The boundary between the properties is unfenced.

The Disputed Property is a small triangle of land cleared up to the tree buffer on the England (Osmond) side. It is contiguous with the cleared lawn of the England (Osmond) property, on the England (Osmond) side of the tree buffer. For that reason, it would appear to an observer, who would regard the tree buffer as a sort of boundary, as if it was part of the England property. [ 13 ] Shirley England testified on discovery that the Disputed Area was cleared by mutual agreement of the parties in order to provide a common means of easier access back and forth from their respective cabins.

At some point, Warren England built a set of steps, through the tree buffer, leading from the Dicks’ cabin to the Disputed Property, because Eric Dicks had developed mobility problems and could not negotiate the path easily. [ 14 ] The parties agree that the Englands made substantial use of the Disputed Property. The Englands sodded and landscaped it. Around 1980, the Englands constructed a shed right at the tree line, and this was later replaced with another shed in the same location. The sheds were small, continuously used for storage and repaired and maintained by Warren England.

The Englands put up a clothesline on and over the Disputed Property. They also built a stage on the Disputed Property on to use for live music and skits during parties that they would host. [ 15 ] The only matters of factual dispute regarding the Englands’ use of the Disputed Property was whether this use was with the permission of the Dicks and whether neighbours considered that the Disputed Property belonged to the Englands or to the Dicks.

It is helpful at this point to discuss the conflicting evidence relating to these issues. [ 16 ] In support of their Application, the Osmonds filed Affidavits of the Englands’ daughter, Michelle Stanley, and of Stewart Whitten, Shelley Coombs, Roger Coombs, Patrick Byrne, Deborah Byrne, and Rick Noseworthy, all of whom owned neighbouring properties during some of the material time.

Michelle Stanley attested that her family always referred to the Disputed Property as the Upper Lawn, and that she does not recall that her parents were ever told in her presence that the Disputed Property belonged to the Dicks or the Barrons or ever being told by Linda Barron to remove the shed or stop using the Disputed Property.

The neighbours who filed Affidavits in support of the Osmonds’ Application all attested to being frequently at the Englands’ cabin, that they and, as far as they knew, the rest of the neighbourhood, always regarded the Disputed Property as part of the Englands’ property, that they never heard of

any dispute regarding its ownership, and that the Englands, and then the Osmonds, always prevented others from using the property. [ 17 ] The Barrons filed Affidavits from neighbours Ray Noseworthy, Gordon Sheehan, Joan Broomfield and David Broomfield. These Affiants all attested that they owned nearby properties during the material time, and that they socialized frequently with the Englands and the Dicks, including sometimes at the fire pit on the Disputed Property.

All swore that it was well known that the Englands’ shed and clothesline were located on property that belonged to the Dicks, and that they never heard Warren England claim to be the owner of the Disputed Property. Noseworthy swore that he understood that the Englands built their shed on the Disputed Property because there it could be built in the woods and concealed from the rest of the property.

Noseworthy and the Broomfields each swore that they remembered that on several occasions Phyllis Dicks reminded Warren England that his shed and clothesline were on her property and that he would “simply laugh and not dispute her position.” The Osmonds did not object to the inclusion of this evidence in these Affidavits, even though it would appear to be hearsay. [ 18 ] The Englands were both examined for discovery. They testified that they never intended to exercise ownership over the Disputed Property.

They agreed with the assertions made in some of the Affidavits that Phyllis Dicks occasionally pointed out to them that she owned the Disputed Property, and that they never challenged her in that regard. They testified that always knew that the shed was built on the Dicks’ property, and they understood that they had the permission of the Dicks to use the property although they never expressly sought that permission. Neither the Dicks nor Ms. Barron ever told them not to use it.

The Englands also testified that at the time that the Osmonds’ agreed to purchase the cabin the Englands told the real estate agent and the Osmonds that the shed was not on the cabin property. [ 19 ] The parties did not agree as to the effect of the Englands’ evidence on resolution of the issue of possessory title.

The Barrons’ position is that use without intention to own cannot support a claim for possessory title; the Osmonds did not address this point directly but their position must be regarded as an assertion that intention of the person in possession is irrelevant. [ 20 ] The Respondents filed a letter from Greg Stack, a lawyer whose firm acted for the Englands on the sale to the Osmonds that addressed some of the issues raised by this Application. The letter itself was not properly in evidence on the Application, but on their discovery the Englands adopted the assertions made in the letter.

The letter described an attempt in the summer of 2015 to arrange for the execution of a Deed of Mutual Exchange dealing with the Disputed Property. This attempt ended with Linda Barron refusing to sign this instrument. [ 21 ] As previously noted, the Deed of Conveyance from England to Osmond did not include the Disputed Property. The survey description attached to the Deed of Conveyance from England to Osmond showed the Disputed Property as outside the boundaries of the England property.

Moreover, a Surveyor’s Real Property Report prepared in connection with the conveyance to the Osmonds noted that “The shed of property owned by 81A Deer Park Road is located off the lot,” and a diagram accompanying that Report showed the Disputed Property as within the boundaries of the Barron property. ISSUES 1. Is this case one appropriate for

summary trial? 2. Is there a genuine issue for trial? 3. If there is a genuine issue for trial, is it nevertheless possible and appropriate to decide the issues on the existing record? 4. Have the Applicants demonstrated use of a nature and duration to establish possessory title in the Disputed Property? The Law on

Summary Trial [ 22 ] The Plaintiffs’ Application is pursuant to Rule 17A of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D , the pertinent parts of which read as follows: 17A.01

Summary Trial 17A.01(1) A plaintiff or defendant may, after defence has been filed and at any time prior to the proceeding being placed on a trial list, apply to the Court with supporting affidavit material or other evidence for

summary trial seeking judgment on or dismissal of all or part of the claim in the statement of claim, as the case may be 17A.03 Disposition of Application 17A.03(1) Where the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant

summary judgment accordingly. 17A.03(2) Where the Court decides that there is a genuine issue with respect to a claim or defence, a judge may nevertheless grant judgment in favour of any party, either upon an issue or generally, unless (

a) the judge is unable on the whole of the evidence before the Court on the application to find the facts necessary to decide the questions of fact or law; or (

b) it would be unjust to decide the issues on the application.

17A.03(3) Where the Court is satisfied that the only genuine issue is the amount to which a party is entitled, the Court may order a trialof that issue or grant judgment with a reference to determine the amount. [23] The Supreme Court of Canada has emphasized the importance of

summary trial as a tool to promote timely, proportional, andcost-effective access to justice. In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada directed the Courts to accordinglyapply a broad

interpretation of such rules in order to achieve those policy goals. [24] In this jurisdiction, the proper approach to applying Rule 17A was the subject of detailed consideration by Green, J. as he thenwas, in Marco Ltd. v. Newfoundland Processing Ltd. (1995), (NL SC), 130 Nfld. & P.E.I.R. 317, 405 A.P.R. 317(Nfld. S.C.(T.D.)). Green, J. considered the policy basis for the Rule, and the application of similar rules in other Canadianjurisdictions. He then, at paragraph 76 of the decision, set out seventeen principles as a guide to applying the Rule.

This Court hasendorsed and applied the Marco principles on numerous occasions, and the Court of Appeal has approved the framework set out in thatcase as the appropriate approach to the proper application of Rule 17A. [25] In essence, the principles guiding a decision on the appropriateness of

summary trial are directed at determining whether thesummary trial will allow for sufficient fact-finding to decide, in a just manner, the legal issues raised by the pleadings. Application of

Summary Trial Principles to This Case The threshold question: Is this case one appropriate for

summary trial? [26] In Young v. Noble, 2016 NLCA 58, at para. 27, Green, C.J.N. said the threshold question on an application for

summary trial is“whether the applicant has provided some evidentiary basis for the assertions made and whether the nature of the case is such that it ispotentially capable of being dealt with in the attenuated manner contemplated by a

summary trial.” [27] Most reported cases of contested litigation over title in this jurisdiction have been determined following a trial. However, in thiscase there is very little dispute over the facts. The central issues arise from disagreement over the legal effect of the facts relating to title. There is agreement on the extent and boundaries of the Disputed Property. [28] This matter is potentially capable of determination on

summary trial. I find that the preliminary threshold has been crossed. Is there a genuine issue for trial? [29] Once the threshold question is resolved in favour of proceeding, the onus is on any party opposing

summary trial to satisfy theCourt that there is a genuine issue for trial. [30] The Osmonds argued that the evidence of the use of the Disputed Property by the Englands and the Osmonds, in sequence, soclearly establishes the Osmonds’ possessory title that there is no genuine issue as to trial. In the alternative, the Osmonds say that if thereis a genuine issue for trial, than the matter can still be resolved in their favour on

summary trial. [31] The Barrons say that evidence showing that the Englands made use of the Disputed Property with the permission of the Dicks,and without any intention of asserting ownership, creates a genuine issue for trial and that this dispute cannot be resolved on

summarytrial. In the alternative, the Barrons argue that if the Court can resolve the issues on the record presented, then the issue of ownership ofthe Disputed Property should be resolved in their favour. [32] The case law that I will address in resolving these issues demonstrates that the issues of intention and permission are material todetermination of the effect of acts of possession.

I find therefore that the Barrons have met their onus of demonstrating a genuine issueas to trial. [33] As I noted, the evidence shows that the Deed of Conveyance from the Englands to the Osmonds conveyed property that did notinclude the Disputed Property.

In their oral and written submissions, the Barrons relied on this evidence that as supporting their positionthat the Englands’ lacked intention to assert an ownership interest in the Disputed Property. [34] The Barrons did not argue that the exclusion of the Disputed Property from the property conveyed to the Osmonds should leadto the conclusion that the Osmonds have no interest in the land to assert in this proceeding.

If the Barrons had advanced this positionthen, barring persuasive argument to the contrary from the Applicants, I would have found that there was no genuine issue for trial, andthe matter must be resolved in favour of the Barrons. This is because even if the Osmonds were correct in their assertion that theEnglands had acquired title to the property by their acts of possession, the facts clearly establish that the Englands did not convey anyinterest in the Disputed Property to the Osmonds.

The Disputed Property therefore either would still be owned by the Englands orreverted to the Barrons as legal title holders when the Englands went out of possession. [35] However, the Barrons did not advance this argument and it would be unfair to the Osmonds to decide the case on a basis thatthey did not have opportunity to address in argument (or perhaps through other evidence). Is it nevertheless possible and appropriate to decide the issues on the application based on the existing record? [36] Once the potential obstacle to

summary trial presented by a genuine issue is identified, the next requisite step is to determinewhether the obstacle can be overcome by reliance on the record presented on the application. [37] In order to determine this issue, I must decide whether I have sufficient comfort level with the factual record (includingaffidavits, documentary exhibits, and evidence given viva voce on cross-examination) to allow me to make the findings of fact and draw

the necessary commonsense inferences to properly adjudicate this dispute. In making that determination, I must bear in mind that I may,on

summary trial, resolve conflicting evidence if the proven facts, and commonsense inferences from proven facts, allow. [38] The evidence on this

summary trial application included title documents. Neither party suggested that any documents not inevidence could bear on the material issues. The Applicant, Jason Osmond, filed an Affidavit, and both sides filed Affidavits fromnumerous owners of neighbouring properties. The Englands were examined for discovery, and a transcript of their evidence was filed. The Barrons did not themselves file Affidavit evidence. This gap caused me concern as the Barrons must be considered as principalplayers.

However, as Green, J. pointed out in Marco, the absence of evidence from a responding party is less important than would bethe absence of evidence from an applicant, because the respondent has a recognized obligation to put their best case forward in responseto a

summary trial application. None of the Affiants were cross-examined, but this was the parties’ choice and there is no reason tobelieve that cross-examination would have helped in any way to resolve the fairly limited conflicts in the evidence. [39] I therefore find that the existing record is sufficient for me to fairly resolve the necessary issues without a full trial. Have the Applicants demonstrated use of a nature and duration to establish possessory title in the Disputed Property? [40] Title to property carries with it the right to occupy the property.

However, the interest of a titleholder can be defeated byanother’s possession of a certain duration and character. The Limitations Act, S.N.L. 1995, c. L-16.1, s. 7(1)(

g) provides that no action torecover land lies after the expiration of 10 years from the time that right to take action arises. Section 19(1)(

a) of that Act provides thatthe right of action to recover land arises on “dispossession.” A legal title holder is under no obligation to engage in acts of possession inorder to maintain title, but if another enters into possession of sufficient character, the owner is considered dispossessed. If thatpossession continues for sufficient time, then the legal owner is no longer able to bring an action to recover the land. As between thetwo, the possessor then has the right to occupy and continue to possess the property.

The possessor may also be entitled to ask the Courtto declare that the possession has ripened into title. [41] The leading case on possessory title in this jurisdiction is still the decision of Goodridge, J., as he then was, in Wickham v.Wickham Estate (1977), 17 Nfld. & P.E.I.R. 452, 46 A.P.R. 452 (Nfld. S.C.(T.D.)). Goodridge, J., at paragraphs 188-189, described thequality of possession required in order to dispossess the legal owner in the following terms: 188. ... I would say that the extinguishment of an owner's title by 'adverse' possession is not something to be lightly brought about.

Theremust be some vigour to the possession. 189. Subject to the acceptance of seasonal use as continual use in some circumstances, the possession must be complete, and notsporadic. Every word of the term 'open, exclusive, notorious and continuous possession' is important and when any one is missing, the'adverse' claimant fails." [42] In this case, there is no issue as to whether the use of the Disputed Property by the Englands and the Osmonds was open andcontinuous. It was. The real questions are whether the quality of their sequential possession was notorious and exclusive.

Overridingand relating to the resolution of those questions are the question of permission and the issue of the intention of the Englands in using theDisputed Property. - Notoriety [43] In Newfoundland v. Collingwood (1996), (NL CA), 138 Nfld. & P.E.I.R. 1, 431 A.P.R. 1 (Nfld. C.A.) atpara. 18, Cameron J.A. described the requirement for proof of notoriety: 18 The Crown also argued that the trial judge's conclusion could only be based on notoriety which, of itself, is not sufficient. InCrowley v.

Crowley (1984), 51 Nfld. & P.E.I.R. 140 at 146, Goodridge, J. stated that open means visible whereas notorious means wellknown by the public in the area. It is interesting to note that while open and notorious have different meanings, in any examination of thepossession of a squatter, they are generally linked. Both elements are directed to the knowledge of the owner of the possession of theclaimant. In Sherren v.

Pearson (1887), 54 S.C.R. 581 at 586, Ritchie C.J., in finding that there had been no occupation by thedefendants of the lot stated: "there was nothing sufficiently notorious and open to give the true owner notice of the hostile possessionbegun." The linkage of the two elements is logical, as in most cases notoriety would follow openness, particularly when the land is nearor in a community. However, one must not lose sight of the reason for the requirement.

For example, if an owner was given actual noticeby a squatter of his having taken possession of lands, I do not see how the owner could then say that the possession was not sufficientlynotorious or open to meet the requirements of the law though the land be isolated and the possession not known to anyone other than theclaimant and the title holder.

Here, of course, there was no actual notice so one has to consider whether notice can be imputed to theCrown by virtue of the nature of the possession and, in that connection, whether possession can be so notorious as to affect the level ofopenness required. [44] Each party in this case filed affidavit evidence directed to the issue of notoriety. The Applicants’ affiants swore that all wholived or owned cabins in the neighbourhood knew the Disputed Property as the Englands’.

As well, the Applicants relied on the fact thatany person who viewed the Disputed Property without knowledge of ownership or title would perceive the Disputed Property as part ofthe England lot. [45] The Affidavits filed on behalf of the Respondents did not really contradict the evidence of the Applicants. Rather, theRespondents’ affiants were people with special knowledge of the parties’ understanding, who swore that they had overheard discussionof ownership between Phyllis Dicks and Warren England.

This assertion of special insider knowledge does not contradict evidence ofnotoriety. [46] On the other hand, notoriety alone does not support a claim to possessory title. As noted in the Court of Appeal decision inCollingwood, the concept of notoriety has to be considered in conjunction with that of openness. Both concepts reflect the principle that

possession by another cannot dispossess a legal title holder who does not have actual or constructive knowledge that someone else isoccupying the property. The legal title holder does not have to actively possess property in order to maintain title, and the statutorylimitation on the owners’ right to take action does not run until the owner has knowledge of wrongful possession. [47] In this circumstance, the evidence is that the Dicks and Englands had their own understanding regarding the use of the DisputedProperty.

The belief or understanding held by their neighbours could not supplant their own agreement. - Exclusivity [48] The use to which the Englands put the Disputed Property would appear to the outside observer to be the acts of owners. Theycleared the land (although it seems that they did this in conjunction with the Dicks). They sodded it; they held parties on it using a stagethey constructed; they built a shed on it and a clothesline over it. [49] However, as Handrigan, J. pointed out in summarizing the principles derived from Wickham, in George v. George, 2012NLTD(G) 196, at para. 7: 7 … 8.

While the acts on which the adverse claimant relies must be of possession and not of trespass, distinguishing between the two can bedifficult sometimes since true possession is no more than a high level of trespass. 9. If it is unclear that the adverse claimant possesses the property or is merely trespassing, he must show that he intended to exclude theowner and other people. [50] The importance of intention was also emphasized by Goodridge, J. in Wickham: 113 9.

In cases where the distinction between acts of trespass and acts of possession is obscure, one must look for an animuspossidendi. 114 Few of the cases come to grip with the matter of animus possidendi. It is not easy to find a place for it in this subject. 115 It is discussed in the case of Littledale v. Liverpool College, [1900] 1 Ch. 19, at page 23. Lindley, M.R., commented in thismanner: ...and possession by the plaintiffs involves an animus possidendi - i.e., occupation with the intention of excluding the owner as well asother people.

The evidence that the plaintiffs never had any such intention is extremely strong. The correspondence shews that until quiterecently they only claimed a right of way. Even when they commenced this action they claimed a right of way and no more. It was onlyat a later stage that they claimed the ownership of the strip. When possession or dispossession has to be inferred from equivocal acts, theintention with which they are done is all-important: see Leigh v. Jack. (supra) 116 This philosophy is echoed in the case of Stevens v.

Skidmore, (ON SC), [1931] 2 D.L.R. 467, where Raney, J.,at page 471 stated: Discontinuance of possession, under the section, is a question of fact, compounded of intention and action.

The intention is of noconsequence if the action is definite and unequivocal; but when dispossession (in this case, discontinuance of possession) is to beinferred from equivocal acts, the intention with which the acts are done is all-important: Banning on Limitation of Actions, 3rd ed., p. 93. 117 I think it can be fairly said as a corollary to this principle that when the owner reclaims possession by entry, unless his acts areunequivocal, an animus possidendi must be shown. 118 Under

section 11 (supra) of the Act, an entry does not necessarily mean possession. When the nature of the entry is in doubt, theanimus must be made out. [51] The actions of the Englands regarding the Disputed Property would probably not be considered equivocal if not for their ownevidence of intention, the evidence relating to permission, and the evidence relating to the conveyance to the Osmonds. But, thisevidence must be accounted for in applying the appropriate legal principles.

[ 52 ] The Englands testified on discovery that they had no intention to ever own the Disputed Property or make a claim to it. They understood that they had the permission of the Dicks to use it. [ 53 ] Moreover, the Englands never sought to exclude the Dicks from the Disputed Property. The construction of a shed obviously precludes others’ use of the land within its confines. However, as to the rest of the Disputed Property, the Englands always intended to share use with the Dicks and Mr. England even constructed a set of steps to facilitate the Dicks’ access of the property.

After Linda Barron purchased the property in 1990, she no longer accessed the Disputed Property even for social occasions, but this was not because the Englands excluded her. [ 54 ] The Englands testified on discovery that they understood that they had permission from the Dicks to use the Disputed Property. They did not, however, have any conversation with Ms. Barron about this. The Applicants made the valid point in oral argument that Ms.

Barron must be considered to have merely acquiesced in the continued use by the Englands, and that acquiescence by a legal owner with knowledge of another’s inconsistent use is the core of the rationale for excluding the owner from asserting a claim after the passage of time.

However, this does not alter the fact that the Englands, on whose actions the Osmonds relied to base their claim, clearly stated that they knew the Disputed Property was not theirs and they never intended by their actions to acquire ownership. [ 55 ] The Englands’ evidence on discovery was corroborated by the evidence of the circumstances surrounding the sale of their cabin to the Osmonds. The Englands listed their property for sale, but they told the real estate agent that they did not own the Disputed Property. Mr.

England testified that they also told the Osmonds this during negotiations for the sale of the property. A letter from the law firm that represented the Englands on the sale (the contents of which were confirmed as accurate by the Englands when they were examined for discovery) stated that at the time of the transaction an attempt was made to arrange for a Deed of Mutual Exchange between the Englands and the Barrons pursuant to which the Englands would have been conveyed the Disputed Property but which Ms. Barron would not agree to execute.

The law firm also stated that it was a requirement for closing the transaction that they provide a Surveyor’s Real Property Report to the Osmonds and this Report showed the Disputed Property as outside the boundaries of the Englands’ property. The Deed of Conveyance from the Englands to the Osmonds did not convey the Disputed Property. [ 56 ] I find therefore that the actions of the Englands did not constitute possession of a quality sufficient to establish possessory title to the Disputed Property.

It follows that they could not have conveyed title to the Osmonds, and in fact they did not even purport to convey an interest in the Disputed Property. [ 57 ] The Osmonds therefore knew that they did not own the Disputed Property. They did not seek permission to use the land but they did so anyway. Their actions did have the quality necessary to maintain a claim for possessory title or resist an action to evict them and they had the intention to exercise ownership.

However, they did not possess the property for sufficient time to dispossess the Barrons by their own action s- the limitation period that would have precluded the Barrons from taking action to evict them has not expired. [ 58 ] The acts of sequential possessors can be accumulated in order to dispossess a legal owner. However, the Osmonds could not have claimed the advantage of the Englands’ actions even if the Englands’ actions had constituted sufficient possession, because the Englands did not convey to them any interest in the Disputed Property.

This is not a case where the vendors had conveyed property with a vague description, and it is not a case in which the Osmonds can claim that they entered into the Disputed Property under colour of title. The land conveyed to the Osmonds was described with precision as excluding the Disputed Property.

SUMMARY AND CONCLUSIONS [ 59 ] The Osmonds applied for

summary trial. I find that this matter is appropriate for

summary trial and, although there is a genuine issue for trial, the record is sufficient to allow me to fairly resolve the issues. The Osmonds’ Application is therefore allowed. [ 60 ] However, I dismiss the Osmonds’ counterclaim for a declaration of title. This is a case anticipated by Green, J. in the 17 th principle outlined at paragraph 76 of Marco , when he noted that an applying party could convince a Court to allow an application for

summary trial but nevertheless find for the Respondent on the merits: “Having set the machinery of Rule 17A in motion, the applying party will not then be able to complain if judgment goes against him or her.” [ 61 ] It follows that I declare that as between the Barrons and the Osmonds, the Barrons are the owners of the Disputed Property and that, therefore, the Barrons’ claim for damages for destruction of the fence is allowed, with damages to be assessed. [ 62 ] The Barrons claim for a declaration of their title to the Disputed Property.

I find that this is not a case where it is appropriate for me to make such a declaration, other than as between the parties. This Application has not involved a judicial investigation of title pursuant to the Quieting of Titles Act , R.S.N.L. 1990, c. Q-3 , and there could be persons who are not parties with interest in the Disputed Property. [ 63 ] The Barrons are entitled to their costs of this action and this application to be taxed on Column III of the Rules . _____________________________ Daniel M. Boone Justice