ryan morgan Applicant And: Ralph Dawe Respondent, 2020 NLSC 150
Opinion
court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Morgan v. Dawe , 2020 NLSC 150 Date : December 8, 2020 Docket : 201801G4295 Between: ryan morgan Applicant And: Ralph Dawe Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 25 and October 2, 2019
Summary: The Applicant asked the Court to order removal of vehicles that the Respondent had parked on property that the Applicant claimed to possess and to own. The Application was dismissed because the Applicant had not demonstrated that he and his predecessors engaged in acts of possession of sufficient quality and duration to support an action in trespass. Appearances: John Brown Appearing on behalf of the Applicant John C. Crosbie and Appearing on behalf of the Respondent Sarah A. Pinsent Authorities Cited:
CASES CONSIDERED: House v. Toms , 2017 NLCA 40 STATUTES CONSIDERED: Judicature Act , R.S.N.L. 1990, c. J-4 RULES CONSIDERED : Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] This is a dispute over the use of property. [ 2 ] The claims to use of the property are best understood as part of a common pattern of land use in rural Newfoundland. In many coastal communities, there is a road that runs along and close to beaches and to the tops of cliffs.
These roads have sometimes become the main roads through the modern communities, but often have remained dirt or gravel paths due to rerouting of the main thoroughfares. On the landward side of these roads, residents of these communities established their homes or gardens or pastures. The extent of usable land on the seaward side of these roads varied with the topography. Often, the residents made use of the land on the seaward side opposite their homes or gardens for purposes related to seagoing activities, such as flakes and stages, and storage for fishing gear and boats.
Over the years from early settlement, the pattern of use became idiosyncratic to each part of each community as land use was passed from generation to generation, and families intermingled and split, and moved in and out of the community. To a large degree, the delineation between the lands used by each family became a matter of purely local knowledge, but that doesn’t mean that that local knowledge was shared or agreed. Very little of this land was the subject of Crown grant.
Formal conveyances and assignments from those in possession were rare, and often consisted of informal Bills of Sale with only rough and localized descriptions of the boundaries of the subject land. [ 3 ] In this case, the families of the Applicant and Respondents lived side by side on the landward side of Blow Me Down Road, a coastal road much like the one that I described. Both parties claim that their families used the land on the seaward side of Blow Me Down Road opposite their residences, and both claim that that their use included some or all of the subject property.
The property is a very small parcel of land situate at the edge of the waters of the Port De Grave harbour. It runs approximately 39 metres along the Blow-Me-Down Road, and is 14 metres wide at its widest point from road to water. Other than the water on the south, there is no natural boundary or topographical feature on the parcel or separating it from abutting property. [ 4 ] The Applicant asks the Court to Order that the Respondent remove two vehicles from the property.
The Applicant does not ask in the Originating Application that the Court declare him to be the owner of the property, but implicit in his claim for relief is a requirement that the Court find that he is in possession of the property, as otherwise the Applicant cannot ask the Court to direct the removal of the Respondent’s vehicles.
The Applicant claims that he purchased the land from his parents, Eric and Judy Morgan, in 2013; that Eric acquired the property under the will of his father, Frederick Morgan, in 1981; and that Frederick acquired the property from his father, Joseph Morgan, as his “only surviving heir and next of kin.” [ 5 ] The Originating Application 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 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 and Memoranda filed by the parties, and by listening to an audio recording of the cross-examination of the Affiants and the argument made before Justice Hurley. [ 6 ] Although the Applicant claims possessory title over the whole parcel, the only portion of the property in issue in this proceeding is the area where the Respondent has parked his vehicles. [ 7 ] The Respondent claims that the Applicant does not own or occupy the property, for two reasons.
First, he says that the part of the property where his vehicles are parked was formerly owned by his great uncle, Henry Morgan, who left the property to his niece, Martha Dawe, the Respondent’s mother, by Will admitted to probate in 1942. The Respondent says that this portion of the property was used by Martha and her husband, Alex, until their deaths, and by several of their children before and since for the purpose of parking their vehicles from time to time.
The Respondent does not in this proceeding claim that he or his family currently own any part of the property, but he says that the Dawe family use of a portion of the property precludes the Applicant from now claiming possession of the entire parcel.
Second, the Respondents also say that the Applicant cannot demonstrate sufficient use of any portion of the property to have dispossessed the Crown, and that, therefore, the land remains Crown land. [ 8 ] In opposing the application for an Order that the Respondent remove the vehicles, the Respondent argues that the evidence proffered by the Applicant did not demonstrate sufficient quality of possession of the property where his vehicles are parked to support a remedy for trespass. [ 9 ] The parties are in agreement that the parcel of property in issue has never been the subject of a Crown grant.
[10] I have determined that this case can be decided on application of limited principles. The Applicant has not demonstrated thathe and his predecessors engaged in acts of possession of sufficient quality and duration to support an action in trespass. ISSUES 1. Has the Applicant demonstrated use of a nature and duration of the property where the Respondent’s vehicles are located toestablish a right to ask this Court to order removal of those vehicles?
ANALYSIS Defining the Nature of the Applicant’s Claim [11] The Applicant seeks an Order that the Respondent remove two derelict vehicles from the position that they are parked on theside of Blow Me Down Road, on property that the Applicant claims is his. [12] Although the Applicant did not rely on any express legal theory in his pleading, the essence of his claim is that by leaving thevehicles where they have been long parked, the Respondent is trespassing on property in the Applicant’s possession. [13] In his Memorandum of Fact and Law filed in support of the Application, and in final summation, the Applicant also asked thatthe Court make a declaration of his ownership of the disputed property.
There is no need for the Court to consider such a declaration asit is not a necessary step in order to resolve whether the Applicant is entitled to the relief claimed in the Application. The Nature of Possession Required to Support a Claim in Trespass [14] This is a trespass action.
An act of trespass is wrong that affects possession of real property and not its ownership. An actionin trespass may therefore be maintained by a person who can prove that the land is in his or her possession; proof of title to, or ownershipof, the land is not an essential element of a trespass action. In House v. Toms, 2017 NLCA 40, the Court of Appeal set out the elementand quality of possession that must be demonstrated by a party claiming a remedy for trespass: 18 In Shea v. Noseworthy (1981), 35 Nfld. & P.E.I.R. 432 (Nfld.
C.A.), this Court established that it is not necessary for a plaintiff toprove title to land in order to sustain an action in trespass. The Court explained that possession of the land in dispute, of a charactersufficient to sustain a trespass action, was required, and further, that in order to constitute such possession, some evidence of entry onto the land must be shown and the possession cannot have been abandoned (paragraph 11). 19 This principle was elaborated on by Green J. (as he then was) in Hickey v. Walsh (1997), (NL SC), 154 Nfld.& P.E.I.R. 59 (Nfld.
T.D.), wherein he described in detail the requirements to be met by parties to a trespass action: To make out his claim, the plaintiff does not have to prove a title to the land. All he need do is establish on a balance of probabilities thathe was in possession of the land at the time of the alleged trespass or, if not in possession, that he has a better right to possession than thedefendant. It is only in this latter connection that the parties' relative claims to title become relevant.
The defendant may resist the plaintiff's claims by showing that the plaintiff cannot prove possession of a character necessary to support atrespass action or, alternatively, that the defendant has a claim of title to the land that is better than the plaintiff's. It is not sufficient forthe defendant simply to show that title is not in the plaintiff, but in a third party: Bowaters (Nfld.) Ltd. v. Pelley Enterprises Ltd. andPelley (1977), 12 Nfld. & P.E.I.R. 251, 25 A.P.R. 251 (Nfld. C.A.), at p. 256. To establish possession, the plaintiff must prove that: (
i) he intended to possess the land in dispute; and, (ii) the possession was of acharacter recognized by law as sufficient to support the action. The intention to possess must be an intent to occupy the whole of the land and to exclude others therefrom. There need not, however, bean intent to exclude the true owner; a licence or other permission to occupy from the true owner will be sufficient to support an action intrespass against a stranger. The degree of possession required is not high.
It need not be of such a character as to constitute adverse possession for the purpose ofextinguishing another's title under the Limitations Act, S.N. 1995, c. L-16. There must, however, be some evidence of entry, howeverslight: Shea v. Noseworthy (1981), 35 Nfld. & P.E.I.R. 432, 99 A.P.R. 432 (Nfld. C.A.), per Morgan, J.A., at 438. It must be of a degreeand kind sufficient to indicate the requisite possessory intention and must be sufficient to amount in fact to some measure of actualoccupation or use of the land.
The extent of the contact specified in order to amount to possession varies with the nature of the land.
(Paragraphs 3-7.) I would adopt this statement of the law. Application to This Case [ 15 ] The Applicant filed an Affidavit in support of the Application. In this proceeding, the Applicant also filed an Affidavit of his father, Eric Morgan. Eric Morgan attested that he remembered his father using the property as far back as 1954, and from that time until 1992 his father used the parcel for farming, kept horses on it, and maintained a barn with a twine loft.
Eric also swore that from 1992 he used the property himself to build and store boats and to store firewood. [ 16 ] The Applicant appended to his Affidavit a registered Deed of Conveyance under which his parents, Judy and Eric Morgan, conveyed to him the parcel of property in dispute. Attached to that Deed in turn were Affidavits from Gerald Porter and William Morgan attesting to the sequential long possession of the parcel by the Applicant, his father, Eric, and his grandfather, Fred. The Affidavits of Gerald Porter and William Morgan were identical.
Both set out that from 1956 to 1992 Fred Morgan used the parcel for farming, kept goats, horses, cows and hens on it, and built and maintained two stables and a hen house on the property. According to these Affidavits, from 1992 until 2013, Eric Morgan built a boat on the property and stored his boat trailer and firewood on it, and that from 2013 the Applicant kept his boat trailer there. [ 17 ] The Applicant also adduced a series of photographs showing various uses of the parcel in issue over time.
These photos revealed a stable or shed in place at the western end of the property, the Applicant’s father’s boat on a trailer over a period of years and various vehicles owned by the Applicant’s family over time mainly in the early 2000s. In all of these photographs the vehicles, boat and trailer were close in proximity to the building identified as the stable or the building now used as a shed, which was erected in the same location.
Another photo was of significantly earlier vintage, taken from the Applicant’s family photo album and appeared to show the stable, and a two-storey structure, suggested to having been a twine loft, on the subject property. Although this latter photograph showed use of a greater portion of the parcel, it is of limited evidentiary value as no one could testify to its provenance or even approximate age. There was no other evidence attesting to the duration of the presence of the twine loft. [ 18 ] Eric Morgan, Gerald Porter and William Morgan were cross-examined on their Affidavits.
One point that they all conceded is that the substantial uses of the property by the Applicant’s family -Fred Morgan’s structures and pasturing animals and Eric and Ryan Morgan’s boat building and storage- were all clustered on the western portion of the property near the location of the stable. None of them on cross-examination could identify with any specificity any use by the Applicant’s family of the more easterly portion of the property.
The furthest extent to the east that they could identify as having being used by the Applicant’s family was the location of the Morgan’s boats shown in various photographs entered as exhibits. [ 19 ] In response to the Application, the Respondent filed his own Affidavit in which he asserted that he grew up on land directly across Blow Me Down Road from the subject parcel on land then owned by his parents, Martha and Alex Dawe.
He also asserted that his parents occupied and used land on the seaward side of the road, and that that land overlapped with the disputed parcel- in other words, that the Dawes occupied and used a portion of the parcel now claimed by the Applicant. He attached to his Affidavit a copy of a Will of his great uncle Henry Morgan which left land to the Respondent’s mother, Martha Dawe, on which the Dawes later built their house and a piece of land and another piece of land of vague description but which that appears to have been on the seaward side of the road. He also attached some photographs to his Affidavit.
One showed a family member on the Dawe property in 1972, but more importantly in the background shows the subject property with no built structures on it at that time. Another was asserted to have been taken in 1976 or 1977 showing a stable belonging to Fred Morgan on the western end of the property. [ 20 ] The Respondent also filed an Affidavit from Howard Morgan, who attested that he has lived in the area all his 74 years, in two locations very near the subject property.
Howard Morgan swore that the Applicant’s family used only the westernmost portion of the subject property and that the Respondent’s family used the eastern portion of the property, in recent years mainly for parking their cars.
Howard Morgan also swore that the Applicant’s father’s boat as pictured in some of the photos entered in evidence actually extended beyond what Howard Morgan understood was the land used by the Respondent’s family. [ 21 ] Finally, the Respondent filed an Affidavit from his brother, Edward Dawe, who swore that his family considered that they owned property on the water side of Blow Me Down Road that included a portion of the subject property.
He swore that his great uncle, Henry Morgan, used that part of the property for drying fish with flakes and a stage, and also had a root cellar there, and that since the 1960s his family have regularly used that part of the property for parking and even filled in some of the ground where there had been the root cellar to make parking easier. [ 22 ] The Respondent, Howard Morgan and Edward Dawe were each cross-examined on their Affidavits, but no significant further evidence was adduced from either witness. [ 23 ] The Applicant’s evidence did not demonstrate any use by him or his predecessors of the portion of the property where the Respondent has parked his vehicles.
According to the evidence, the land was never fenced or boundaries marked in any manner. The evidence proffered by the Applicant demonstrated use of the property by the Applicant’s family only as far east as the Morgan’s boats and boat trailers were parked. The evidence also demonstrated that the Respondent’s vehicles that the Applicant asks be removed are parked to the east of that location. Eric Morgan testified that the vehicles were to the east of the location of the boat trailer, so close to the end of the trailer that it interfered with his work on the boat that he stored there.
The only evidence that could perhaps be construed as
an act of possession of the part of the property where the cars are parked was the registration of a Deed of Conveyance from the Applicant’s parents to him of property described with boundaries including that area. Leaving aside the question whether this would be a sufficient act of possession to support a claim for trespass, that Deed was not dated and registered until 2017. At that time, the Respondent’s vehicles were already parked on the property. [ 24 ] Therefore, I find that the Applicant has not demonstrated that he is in possession of the property where the Respondent’s vehicles are parked.
Accordingly, his Application for an Order requiring that the Respondent remove the vehicles is dismissed. The
Respondent is entitled to his costs, taxed on Column III of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . _________________________ Daniel M. Boone Justice
Loading document…