DAVID CHAtMAN Applicant And: SUEANN PYE First Respondent (Adverse Claimant) And: DIANE PYE SECOND RESPONDENT (adverse Claimant), 2020 NLSC 139

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Chatman (Re), 2020 NLSC 139 Date : November 13, 2020 Docket : 202006G0030 In The Matter of the Quieting of Titles Act ,

Chapter Q-3 of the Revised Statutes of Newfoundland and Labrador, 1990 Between: DAVID CHAtMAN Applicant And: SUEANN PYE First Respondent (Adverse Claimant) And: DIANE PYE SECOND RESPONDENT (adverse Claimant) Before: Justice Katherine O'Brien Place of Hearing: Clarenville, Newfoundland and Labrador Dates of Hearing: September 16 and October 16, 2020

Summary : An application for a certificate of title under the Quieting of Titles Act was granted.

Appearances: Philip C. W. Whalen Appearing on behalf of the Applicant SueAnn Pye Appearing on her own behalf Diane Pye Appearing on her own behalf Authorities Cited: CASES CONSIDERED: Dyer Estate (Re), 2011 NLCA 81; George v. George, 2012 NLTD(G) 196; Wickham v. Wickham (No. 1)(1977), 17 Nfld. & P.E.I.R. 452, 46 A.P.R. 452 (Nfld. S.C.(T.D.)); Mugford v. Mugford, (NL CA), 103 Nfld. &P.E.I.R. 136, 326 A.P.R. 136 (Nfld. C.A.); Russell v. Blundon, 2002 NFCA 20 STATUTES CONSIDERED: Quieting of Titles Act, R.S.N.L. 1990, c. Q-3; Limitations Act, S.N.L. 1995, c.

L-16.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] David Chatman applied under the Quieting of Titles Act, R.S.N.L. 1990, c. Q-3 (the “Act”) to have his title to 0.26 hectares ofland in Brooklyn, Newfoundland and Labrador (the “Property”) investigated and declared. SueAnn Pye and Diane Pye (collectively, the“Adverse Claimants”) opposed Mr. Chatman’s application, each claiming to be a part owner of the Property. THE ISSUE [2] Has Mr. Chatman proven on a balance of probabilities that he owns the Property?

THE LAW The Quieting of Titles [3] The Act sets out a legislative scheme whereby a person claiming to be the owner of land can have their title judiciallyinvestigated and declared (the Act, s. 3(1)). The person must file a petition and various particulars with the court (the Act, ss. 5-9).

Theserequirements are designed to provide enough evidence to satisfy the court on a balance of probabilities that it would be appropriate tomake an order declaring title to the Property that binds third parties (see Dyer Estate (Re), 2011 NLCA 81 at para. 11). [4] A person with a conflicting interest in the land has two options: file a counter-petition as allowed by s. 3(2) of the Act or file anadverse claim as allowed by s. 17(1).

In the present case, adverse claims were filed. [5] An adverse claimant does not need to file sufficient evidence for the court to make an order declaring the adverse claimant’stitle in the land. Indeed, the court does not decide upon the rights of the adverse claimant. Instead, adverse claimants can file as much,or as little, information as they determine necessary to defeat the applicant’s petition. The only question the court has to consider iswhether or not the certificate of title sought by the applicant should be granted (see Dyer Estate (Re), paras. 12 to 16). Limitations of Actions [6] Section 7(1)(

g) of the Limitations Act, S.N.L. 1995, c. L-16.1, provides that following the expiration of 10 years after the dateon which the right to do so arose, a person shall not bring an action or proceeding to recover land that is not Crown land. Section 17(1)provides that upon the expiry of the limitation period, the cause of action and the right or title on which it is based are extinguished.

Section 19 sets out how to determine when the right arises, or when the 10-year clock starts ticking. Of relevance to this case are ss.19(

a) and (

b) which provide that the right arises at the time (

a) of dispossession, discontinuance of possession or when that person has

last received profit or rent for the land; and (

b) of death where that person claims the estate or interest of the deceased person and that deceased person was, at the time of his or her death, the last person entitled to or in possession of that estate or interest. [ 7 ] Prior to 1995 when the Limitations Act came into force, the limitation period was 20 years so cases decided before then reference a 20-year period, although the underlying principles remain the same. Adverse Possession [ 8 ] The applicant must establish their title to the land by a “legal basis” or by “possession” (see George v. George , 2012 NLTD(G) 196) at para. 4).

It is thus helpful to review the law that applies to land titles based on possession. In George v. George , at paragraph 7, Handrigan J. reviewed principles of adverse possession that he distilled from Wickham v. Wickham (No. 1) (1977), 17 Nfld. & P.E.I.R. 452, 46 A.P.R. 452 (Nfld. S.C.(T.D.)), and other cases from this province. I will reproduce, with some minor modification, the principles that are relevant to the present case: 1. No action for recovery of land may be brought by the legal owner after 10 years has expired since the cause of action arose. 2.

The legal title of the person who has the right to bring an action, but does not do so, is extinguished after 10 years. 3. The limitation period starts to run when the legal owner has been dispossessed or has discontinued possession of the property and another has possessed the property exclusively for their own benefit. 4. The possession must be open, exclusive, notorious and continuous, not equivocal, occasional or for special or temporary purposes. 5. The claimant must possess the land as the nature of the land permits.

This means that the visible signs of possession required will vary with the different circumstances and physical conditions of the property possessed. 6. Possession does not have to be “adverse” for the limitations legislation to be engaged. 7. The claimant's possession extends only to that area of the property that the claimant actually occupies, unless the claimant has entered the property in good faith under a written instrument from one purporting to be the proprietor. In the latter case, the claimant has the land under “colour of title” and is deemed to occupy the whole. 8.

While the acts on which the claimant relies must be of possession and not of trespass, distinguishing between the two can be difficult since true possession is no more than a high level of trespass. 9. If it is unclear that the claimant possesses the property or is merely trespassing, the claimant must show an intention to exclude the owner and other people. 10. The claimant has to prove entitlement to the benefit of the Act . POSITIONS OF THE PARTIES [ 9 ] The parties agree that the Property is fully within a Crown Grant to Thomas Pye dated May 11, 1878. Although given notice of Mr.

Chatman’s application, the Crown did not appear at these proceedings or raise any objection. The parties also agree that the Property was used continuously by Thomas Pye and his heirs for a sawmill and growing vegetables until it came into the possession and ownership of his grandson, Thomas Harold Pye. After this point, the positions of Mr. Chatman and the Adverse Claimants diverge. [ 10 ] Thomas Harold Pye had eight children, including Annie, Lewis and Boyd. Mr. Chatman is the grandson of Annie; Ms. SueAnn Pye is the daughter of Lewis; and Ms. Diane Pye is the daughter of Boyd. Mr. Chatman’s position [ 11 ] Mr.

Chatman claims that following his death in 1955, intestate, Thomas Harold Pye’s children agreed to divide his land between them. Mr. Chatman claims that the Property was the piece received by Annie Ash (née Pye), his grandmother. Mr. Chatman claims that it was well known in the community that Annie Ash was the owner of the Property and that Annie Ash always referred to the Property has being hers. [ 12 ] Mr. Chatman states that his grandmother wanted him and his wife to build their family home on the Property. In 2007, Mr. Chatman hired a local contractor to clear the Property with an excavator. Mr.

Chatman also did some clearing work himself, and he pegged off the boundaries of his intended home. Half a dozen large mature spruce trees were taken down at this time. Other brush was cleared and buried. This was done with his grandmother’s knowledge and consent. Mr. Chatman’s financial and work situation was such that he did not build the house immediately. Around this time his wife had taken up a farming enterprise that had been her grandparents’ in Lethbridge, Newfoundland and Labrador. Within a couple of years it was doing well enough that he joined her in that business.

Their lives became centered around Lethbridge. [ 13 ] Despite him not having built the house, Mr. Chatman testified that his grandmother became sick in 2013 and began “leaning on” him to get the legal work done to have the Property transferred to him. Mr. Chatman arranged to have the Property lines cut and the Property surveyed and had made an appointment for him and his grandmother with a lawyer. The lawyer advised him that they would need two elderly people in the community to sign affidavits attesting to the history of the Property.

He and his grandmother settled on Theodora Bowen and Betty Holloway who were two well-known senior members of Brooklyn. Mr. Chatman did not know that either of the women were related to his grandmother or him. He and his grandmother arranged for the two women to sign the affidavits. A Deed of Grant was prepared and signed by his grandmother. It was registered at the Registry of Deeds, together with the affidavits of long possession, in 2014.

[14] Since 2007 and to the present day, Mr. Chatman states that he has continued to visit the Property and exercise control over it. His son has used it for camping, and he has given permission to friends with campers to use it from time to time. He can see the Propertyfrom the post office in Lethbridge and he goes to take a look at least a couple of times a week, just to see if anyone is there. He also hasa friend in Brooklyn, Matthew Palmer, who keeps an eye on it and lets him know if anyone is using the Property. From time to timesomeone enters on the Property to camp for short periods.

From his monitoring, Mr. Chatman knows when this happens. As long aspeople are not being troublesome, he does not mind them using it. On one occasion, he stopped by to speak to people who had parked acamper there to let them know he was the owner. He let them stay and asked them to clean up after themselves. Mr. Chatman does aclean-up on the Property once a year to remove garbage that blows around. He had a Private Property sign erected for a time but it keptcoming down and he stopped putting it up.

Although people have camped on the land from time to time, he figures that people fromBrooklyn know it is his Property. The Adverse Claimants’ position [15] The Adverse Claimants do not claim to have ever possessed the Property. Their only visits to the Property were in childhoodand very occasional. They claim to be part owners of the Property by virtue of their being grandchildren of Thomas Harold Pye. Theyclaim that the Property did not come under the sole ownership of Annie Ash and that the children of Thomas Harold Pye did notrelinquish their claim to the Property at any time.

Their position is that all the children of Thomas Harold Pye, and their heirs, have aclaim to the Property. ANALYSIS [16] In order to establish the context in which the principles of law must be applied, I will begin by making some findings of fact. The Adverse Claimants are not co-owners [17] I find that neither of the Adverse Claimants is a co-owner of the Property. There is no evidence to suggest that, prior to theirfiling of their adverse claims, either of them ever considered themselves as an owner nor did they ever show any interest in the Property. Ms.

SueAnn Pye testified that she had assumed the Property belonged to her uncle Jack (John) Pye. [18] Additionally, the Adverse Claimants base their interest in the Property on their being heirs of Thomas Harold Pye and heirs oftwo of his sons. None of these men had wills and none of them have had their estates administered. In Mugford v. Mugford, (NL CA), 103 Nfld. & P.E.I.R. 136, 326 A.P.R. 136 (Nfld. C.A.), the Court of Appeal determined that next-of-kin do nothave a legal or equitable interest in specific property of an un-administered estate.

Thomas Harold Pye’s children agreed to divide his land [19] I also find that the children of Thomas Harold Pye agreed to divide their father’s land among them and that the Property wasthe piece agreed upon for Annie. There is sufficient evidence to support this finding. [20] First, the affidavits of Theodora Bowen and Betty Holloway state that this was the arrangement. The Adverse Claimants didnot consider it necessary to cross-examine either affiant. Rather, they chose to point out what they considered to be fatal weaknesses oftheir affidavits.

Chief among these was the fact that both affiants were first cousins of Annie Ash and the affidavits both state, in clearerror, that the affiant is not related to Annie Ash by birth or marriage. [21] I have considered the errors in the affidavits and I have considered the relationship of both affiants to Annie Ash. The errorsare not sufficient for me to disregard the whole of the affidavits. Certainly, care should be taken to ensure that all information in anaffidavit is accurate before it is sworn.

Any error in an affidavit risks lessening the reliability of the other evidence contained in it andmay even cause the whole of the affidavit to be disregarded for being unreliable, however, this will not always be the result. Here, theheart of the affidavits is the attestation to the history of the Property and Annie Ash’s ownership. There is no evidence that either affianthad any interest in the Property nor any other evidence to contradict their statements as to the history of the Property. Brooklyn is a smallcommunity, with a population of approximately 200.

From the evidence, I have no trouble finding that a significant percentage of thesepeople are Pyes or related to Pyes. Given that the ownership of the Property was really a Pye family matter, I would expect that amember of the extended Pye family who lives in the community but who has no interest in the Property would be well positioned toknow about its history and ownership. [22] Second, the evidence establishes that other of Annie’s siblings received pieces of Thomas Harold Pye’s land. The evidence ofMs.

SueAnn Pye was that both her father, Lewis, and her Uncle Jack (John) received land and that all of the other siblings signed deedsconfirming their brothers’ interests. Only a portion of one the deeds was filed, and it is a Deed of Confirmation. There is no evidence tosuggest that any consideration was paid to the siblings. In fact, the registration particulars for the deeds, which were filed, cite theconsideration as $1.00 in both cases. Ms. SueAnn Pye did not know if others of the siblings received pieces of land.

While certainly notconclusive, that at least two of the siblings received parcels for no consideration is consistent with their having been an agreement amongthe siblings to divide up their father’s land. [23] Third, the only living sibling, Pearl Simmons (née Pye), consented to the Mr. Chatman’s application. Neither side called PearlSimmons as a witness. [24] Fourth, there is evidence that other of Annie Ash’s siblings, now deceased, knew about Mr. Chatman’s claim to the Propertyprior to their deaths and did not object. Sarah (Ruby) Chatman, Mr. Chatman’s mother, gave evidence. Ms.

Chatman testified that hermother brought her family to the Property most weekends (they lived nearby) and that she always said that she owned the Property. Ms.Chatman said she never had any reason to question her mother. Ms. Chatman testified there was never any dispute from anyone in thefamily or in the community about her mother’s ownership. Ms. Chatman testified that although there was not a formal deed ofconveyance she remembers seeing a piece of paper her mother kept in her wallet from her Uncle Jack (John, Annie’s brother) thatdocumented Annie’s ownership of the Property. The paper could not be located.

[ 25 ] Mr. Chatman gave evidence that while he was clearing the land his great uncles Jack (John) and Lewis both lived in Brooklyn and neither disputed or objected to his actions. He specifically recalled his grandmother and his Uncle Lewis being on the Property at the same time, looking at where he had pegged off for the house. He said that his Uncle Lewis was a walker and when Mr. Chatman was at the Property, his Uncle Lewis would regularly stop by and that Lewis was fully aware of his clearing of the land and his plans to build and never objected.

He said he saw his Uncle Lewis frequently and his Uncle Lewis would ask for him for updates when he did. [ 26 ] Finally, all of Thomas Harold Pye’s living next-of-kin were given specific notice of Mr. Chatman’s application except one, of whom Mr. Chatman was not aware at the time. Sixteen people in addition to the Adverse Claimants were given notice and of those 13 filed consents to Mr. Chatman’s application.

Three did not file consents but the Applicant’s law firm’s covering letter they received said “should we not hear from you within ten (10) days of receiving this letter, we will deem you have consented to Mr. Chatman’s application.” Although Ms. SueAnn Pye testified that she considered the notice package to be misleading, having reviewed what was sent, I do not agree. She herself testified that once she had fully reviewed the material, she was not confused by it. The law firm’s covering letter provided a phone number that recipients could call if they had any questions or concerns.

I thus find that there is widespread acceptance in the family of Mr. Chatman’s position. [ 27 ] Other than the Adverse Claimant’s assertion that they do not accept that there was an agreement between the children of Thomas Harold Pye to divide their father’s land as they purportedly did, there is nothing to support their position. The Adverse Claimants point to the fact that Annie Ash signed deeds for her brothers so she should have known that was the proper legal process to obtain title for a property.

They suggest that Annie Ash acted surreptitiously and ask that I infer from that she did not have the agreement of her siblings. I cannot agree with their proposition. I am not being asked to evaluate the title to either of the brothers’ properties and I have only limited evidence before me as to what was done. The evidence is that Lewis got a deed from his siblings in 1986 and Jack in 1995. The one deed that was partially filed is a Deed of Confirmation. A Deed of Confirmation does not necessarily transfer title.

The Estate of Thomas Harold Pye is not a party to either deed according to the registration particulars. The evidence before me establishes that Annie Ash visited a lawyer in 2013 to get assistance to transfer the Property to her grandson. A Deed of Grant was prepared and executed and registered at the Registry of Deeds along with the aforementioned affidavits of long possession. I do not find anything surreptitious about her actions and I do not agree that her actions evidence a lack of consent from her siblings to her claim to the Property. Evaluating Mr.

Chatman’s acts of possession in context [ 28 ] In Russell v. Blundon , 2002 NFCA 20 , Marshall J.A. made clear that the possessory acts sufficient to ripen into to title will turn on the circumstances surrounding their exercise (see paras. 26 and 48). In the context of my findings above, I find that Mr. Chatman and his grandmother, from whom he received a deed transferring her interest to him, possessed the Property openly, exclusively, notoriously and continuous since at least 2007.

In coming to this conclusion, I have considered that Brooklyn is a small community and that the land is located along the main road and is highly visible to anyone driving by. It is a relatively small piece of land. In this context, the clearing of half a dozen large, mature spruce trees, the clearing and burying of other ground cover, and the pegging of a house foundation are strong acts of possession. Since that time, Mr. Chatman’s acts of possession have been more subtle, but I find them sufficient. The land is a building lot and, according to his evidence, Mr.

Chatman has not been able to afford to build on it. His acts of monitoring the Property regularly, having someone else in the community monitor it also, giving others permission to use it, introducing himself as the owner, and regularly visiting the Property and keeping it free of garbage, are sufficient in the circumstances. I accept the evidence that it is well-known in the community of Brooklyn that the Property was Annie Ash’s and is now Mr.

Chatman’s and no one has challenged their ownership or attempted to possess the Property adversely to them. [ 29 ] The Adverse Claimants do not have any right to bring an action to recover the Property because they do not have any legally recognized interest in the Property, having neither any legal interest nor any possessory claim. If they were to make a claim for the estate or interest of Thomas Harold Pye, the 10-year limitations clock may have started to run upon his death in 1955 (see Limitations Act , s. 19(1) (b)).

The latest time that the 10-year clock could have started ticking for someone to take an action to recover the Property from Mr. Chatman and his grandmother, is when the land was cleared in 2007. More than 10 years has passed since then and no action has been taken. As such, I am satisfied that Mr. Chatman has established his entitlement to a declaration that he is the rightful owner of the Property and a Certificate of Title pursuant to s. 26 of the Act should be issued to him. COSTS [ 30 ] I see no reason to depart from the usual rule that costs follow the cause. Thus, I order that the Adverse Claimants pay Mr.

Chatman party and party costs from column 3 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D , Scale of Costs. DISPOSITION [ 31 ] In the result, I order that: 1. A certificate of title under the Act issue to David Chatman for the Property; 2. SueAnn Pye and Diane Pye pay David Chatman party and party costs from column 3 of the Scale of Costs. _____________________________ Katherine O'Brien Justice