Allister Randolph Eddy First Applicant And: Christine Eddy Second Applicant And: HIS MAJESTY THE KING IN RIGHT OF NEWFOUNDLAND v. LABRADOR, as represented by the minister of fisheries,, 2023 NLSC 19

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Eddy v. Newfoundland and Labrador, 2023 NLSC 19 Date : February 10, 202 3 Docket : 202006G0129 Between: Allister Randolph Eddy First Applicant And: Christine Eddy Second Applicant And: HIS MAJESTY THE KING IN RIGHT OF NEWFOUNDLAND AND LABRADOR, as represented by the minister of fisheries, forestry and agriculture Respondent Before: Justice Peter A. O'Flaherty Place of Hearing: Clarenville, Newfoundland and Labrador Dates of Hearing: October 19 and December 5, 2022

Summary:

The Applicants applied under the Quieting of Titles Act , R.S.N.L. 1990, c. Q. 3 , for a declaration that they are the owners of the subject land in George’s Brook-Milton, NL, and for a certificate of title. The Crown opposed the application. Held: The application was dismissed. The court determined that constructive possession was insufficient to dispossess the Crown of the subject land, and that on the facts the Applicants and their predecessors in title were not in constructive possession of the subject land under the doctrine of colour of title. Appearances: Gregory J.

French Appearing on behalf of the Applicants David L. Hearn Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Ring v. Newfoundland and Labrador , 2013 NLCA 66 ; Gough v. Newfoundland and Labrador , 2006 NLCA 3 ; Wickham v. Wickham Estate (1977), 17 Nfld. & P.E.I.R. 452, 46 A.P.R. 452 (Nfld. S.C.(T.D.)) STATUTES CONSIDERED: Quieting of Titles Act , R.S.N.L. 1990, c. Q. 3 ; Lands Act, S.N.L. 1991, c. 36 TEXTS CONSIDERED: Bruce H.

Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell 2014) REASONS FOR JUDGMENT O'Flaherty, J. : INTRODUCTION [ 1 ] The Applicants, Allister and Christine Eddy, have applied to the court under the Quieting of Titles Act , R.S.N.L. 1990, c. Q. 3 , for a declaration of their ownership of a parcel of land in George’s Brook-Milton, NL, and for a certificate of title. [ 2 ] The land affected by the application is a surveyed parcel of 0.7010 hectares. The majority of the parcel is ungranted Crown land (the “subject land”). [ 3 ] The Respondent, the Crown in right of the province, opposes the application.

The Crown says that its title to the subject land was never extinguished by acts of possession of the nature and quality necessary to establish adverse possession. [ 4 ] Subsection 13(3) (

b) of the Quieting of Titles Act provides that I may only issue a certificate of title against the Crown for the subject land if I am satisfied that subsection 36(2) of the Lands Act, S.N.L. 1991, c. 36 applies to the subject land. [ 5 ] It is uncontested that the 20 year period immediately preceding January 1, 1977, which is the period referenced in subsection 36(2) of the Lands Act , is the only period of time that is relevant for a person to establish adverse possession as against the Crown (see: Ring v.

Newfoundland and Labrador , 2013 NLCA 66 ). [ 6 ] The Applicants cannot show there was any actual, or “pedal” possession, of the subject land for the 20 year period immediately preceding January 1, 1977. They submit that “constructive” possession of the subject land during the relevant 20 year period is legally sufficient to dispossess the Crown.

They further claim that their predecessors in title were in constructive possession of the subject land during the relevant 20 year period, under the common law doctrine of “colour of title.” [ 7 ] My conclusion is that constructive possession of the subject land for the 20 year period immediately preceding January 1, 1977, is not legally sufficient to dispossess the Crown of the subject land. Actual open, notorious and exclusive possession of the subject land is required by subsection 36(2) of the Lands Act (see: Gough v.

Newfoundland and Labrador , 2006 NLCA 3 ). [ 8 ] Even if constructive possession was legally sufficient to dispossess the Crown of the subject land, I also find that the subject land was not in the constructive possession of the predecessors in title to the Applicants under a “colour of title.” [ 9 ] The doctrine of colour of title requires that there must be a paper writing under which the claimant honestly believes he is

entitled to the entire property referred to in the document. It further requires that the claimant must enter into possession under the paper writing.

Then, and only then, by entering upon and possessing part of the land does he acquire constructive possession of all the land. [ 10 ] The Applicants assert that in 1947 one Charles Pelley entered upon and went into possession of land in George’s Brook under a colour of title, namely a deed dated March 4, 1947, and that he therefore went into constructive possession of all the land described in the deed, which included the subject land. [ 11 ] I find that by 1946, at the latest, Charles Pelley had already entered upon and was in possession of part of the land described in the 1947 deed, where he had built a house.

As Charles Pelley was in possession well before March 4, 1947, I find he did not enter into possession under the 1947 deed. The doctrine of colour of title could therefore not apply to put him in constructive possession of the subject land. [ 12 ] I find that the Applicants have not established that subsection 36(2) of the Lands Act applies to the subject land. The application is dismissed.

THE SUBJECT LAND [ 13 ] The application requested that the court investigate and declare the title to a rectangular parcel of land located at 266 Trinity Drive, George’s Brook-Milton, and containing an area as surveyed of 0.7010 hectares. [ 14 ] Based on the surveyor’s evidence, I accept that about 18% of the rectangular parcel is comprised of granted Crown land. What is in dispute is the remaining 82% of the rectangular parcel, which is previously ungranted land, and appears to contain all the structures built on 266 Trinity Drive. I will refer to this as the “subject land”.

There is no separate survey of the 18% and no certificate was requested for it. BACKGROUND [ 15 ] The Applicants claim that the subject land was a portion of a larger parcel of ungranted Crown land that was claimed by Fredrick Pilley, a local resident of George’s Brook, in the latter part of the 19th century and that informally passed on his death in 1934 to his son, Moses Pelley (the “Pelley Parcel”). [ 16 ] A family historical narrative, attested to in an Affidavit filed by Mr.

David Andrews, the great-grandson of Frederick Pilley, recounted that the Pelley Parcel was ungranted land located between parcels of land granted to John Pilley in 1874 and Edmund Pilley in 1896. [ 17 ] This ungranted land was said to have been the product of a survey error made in the 19th century.

The Affidavit states the surveyors who measured John Pilley’s and Edmund Pilley’s grant began from the same staring point on the waters of Smith Sound, however one surveyor proceeded on a different bearing for Edmund Pilley’s grant, creating a “V-shaped” space or “gap” between the two grants. [ 18 ] By at the latest 1896, the “gap” had been claimed by Frederick Pilley. The claimed land ran generally north from its starting point on the waters of Smith Sound to a river called George’s Brook and it was divided in two parts by a public road and later by a railway branch line. Mr.

Andrews recounted that his mother, who is now deceased, told him that the land was more fertile toward the back (towards George’s Brook) and became boggier on the side towards the bay (the waterside). [ 19 ] Frederick Pilley died in 1934 and the entire Pelley Parcel then came into the possession of his son, Moses Pelley. In 1947, Moses Pelley formally conveyed the entire Pelley Parcel to his son, Charles Pelley, who built a house on the more fertile part of the Pelley Parcel when he returned from serving in the Second World War.

Within a short time of returning to Newfoundland however, Charles Pelley moved to Ontario where he remained for work. [ 20 ] The paper title to the Pelley Parcel is comprised of three registered documents.

Moses Pelley conveyed the entire Pelley Parcel to his son Charles Pelley in a deed dated March 4, 1947, which described the Pelley Parcel as follows: “…that parcel of land situate at Georges Brook in the District of Trinity center and defined as follows: Bounded on the north by George’s Brook on the west by land owned by Edmon Pelley on the south by High Water Mark and on the east by land owned by John Pelley…” [ 21 ] In 1970, Charles Pelley, as Vendor, conveyed the entire Pelley Parcel to Verdun Stanley, as Purchaser, in a Bill of Sale dated October 17, 1970.

The Bill of Sale described the payment of the consideration, and the Pelley Parcel, as follows: “…in consideration of the sum of five hundred dollars, ($500.00), in hand well and truly paid by various payments to the vendor in different dates since 1946 when this land was first sold and delivered to the purchaser .

The Vendor hereby sells and the (sic) delivers… all that piece or parcel of land situate about in the centre of Georges Brook, and abutted and bounded as follows…: “On the South by the waters of George’s Brook Harbour, On the North by the waters of George’s Brook River, On the west by land owned by Edmund Pelley and on the East by land owned by Walter Stanley” [Emphasis added] [ 22 ] On July 10, 1986, Verdun Stanley signed a Bill of Sale transferring a portion of the Pelley Parcel on the waterside of the road and railway line to Bradley William Ellis, the stepson of Levern Chatman.

The Bill of Sale described the land as follows: “That parcel of land bounded on the east side by John Pelley, now owned by Neil Pelley… on the west side by land owned by Edmund Pelley…now owned by John Stanley and on the north side by the Canadian National rail line”. [ 23 ] Bradley Ellis (later Bradley Chatman) registered the Bill of Sale on February 3, 2012, with a survey attached dated July 28, 2011, which for the first time described the subject land as a rectangular parcel with an area of 0.7010 hectares. The rectangular parcel

surveyed in July 2011 bore little resemblance to the size or shape of the waterside part of the larger parcel initially claimed by Frederick Pilley. [ 24 ] In fact, Rosalind Diamond and Herbert Stanley, both children of Verdun Stanley, swore Affidavits in which they “…noted on review of the survey hereto annexed that the land is much larger than what I thought my father owned.” Both also confirmed that “(their) father did not do anything with the waterside land.” [ 25 ] Bradley Chatman’s step-father, Levern Chatman, began to develop the subject land in 1986, and he had built a shed and barn on the land by the late 1980’s. [ 26 ] By 2015, Bradley Chatman had cleared the subject land completely, and filled and landscaped it as a building lot.

He and his partner constructed a large house on the building lot with an attached garage, a daycare, and a separate garage out front. [ 27 ] The application under the Quieting of Titles Act was commenced by the Chatmans on December 10, 2020, after they had listed the property for sale. [ 28 ] By an Indenture of Release dated March 2021, the Administrators, De Bonis Non, of the Estate of John Pelley, Sr. released to the Chatmans the interest of the estate to the entire rectangular parcel surveyed in July 2011 for $2,000.00. [ 29 ] The Applicants, Mr. and Mrs.

Eddy, purchased the property from Bradley Chatman and Michelle Comeau-Chatman by an indenture dated August 23, 2022. [ 30 ] At the trial the Applicants were substituted as nominal parties with the consent of the Crown. [ 31 ] The overall evidence, and in particular the Affidavit evidence of Ms. Diamond and Mr. Stanley, and the aerial photographic evidence entered by consent, satisfies me that before 1986 the subject land was never used or occupied.

It was a parcel of unenclosed woodland forming part of the natural forest along the shoreline of Smith Sound, virtually indistinguishable from the adjacent land granted to John Pilley. THE ISSUES [ 32 ] The broad question is whether under subsection 13(3)(

b) of the Quieting of Titles Act I am satisfied that subsection 36(2) of the Lands Act applies to the lands affected by the application. [ 33 ] To answer that question I must address two issues: (

i) whether constructive possession of the subject land for the 20 year period immediately preceding January 1, 1977, is legally sufficient to dispossess the Crown of the subject land; and, (ii) if so, whether the Applicants’ predecessors in title were in constructive possession of the subject land during the 20 year period, under the common law doctrine of “colour of title”. ANALYSIS Is constructive possession of the subject land legally sufficient to dispossess the Crown of the subject land under subsection 36(2) of the Lands Act ?

The Applicable Statutory Provisions [ 34 ] This is an application under the Quieting of Titles Act for a judicial declaration of ownership of the subject land, and for a certificate of title. Subsection 13(3) of the Quieting of Titles Act outlines the circumstances in which a judge is authorized to grant such relief against the Crown: 13.

(3) A certificate or conveyance granted under subsection (2) may be made against the Crown where the judge is satisfied, following proper service of the application by the applicant on the Minister of Environment and Lands and after affording the Crown an opportunity of making representation and of being heard, (

a) that the title of the applicant stems from a grant or conveyance made by or on behalf of the Crown; or (

b) that subsection 36(2) of the Lands Act applies to the lands affected by the application. [Emphasis added] [ 35 ] Subsection 36 (2) of the Lands Act provides as follows: 36(2) The period of possession of Crown lands prior to January 1, 1977, which would, by the application of the law pertaining to the acquisition of an interest in land based upon open, notorious and exclusive possession existing prior to the enactment of this section, have been necessary to confer upon a person an interest in that land is considered to be, and always to have been, 20 continuous years immediately prior to January 1, 1977.

The Positions of the Parties [ 36 ] The Applicants argue that constructive possession is legally sufficient to dispossess the Crown of the subject land under subsection 36(2) of the Lands Act because subsection 36(2) expressly provides that “… the application of the law pertaining to the acquisition of an interest in land based upon open, notorious and exclusive possession existing prior to the enactment of this section… ”

applies to defeasing the Crown of its title to Crown lands. [ 37 ] Assuming the common law applies to defeasing the Crown, the Applicants argue that the common law doctrines pertaining to adverse possession continue to apply to the Crown as they did before the enactment of subsection 36(2) . The doctrine of “colour of title” and “constructive” possession, as part of the common law of adverse possession, therefore continue to apply as against the Crown today. [ 38 ] In support of this

interpretation of subsection 36(2), under which the common law of adverse possession applies to defeasing the Crown, the Applicants contend that is consistent with the legislators’ intention to make it easier to confirm existing possessory titles that were based on adverse possession against the Crown. They say evidence of this ameliorative intention is found in Hansard. [ 39 ] The Crown submits that constructive possession is not legally sufficient to dispossess the Crown of the subject land. The Crown contends that our Court of Appeal has directly addressed the proper

interpretation of subsection 36(2) of the Lands Act , in the context of an application under subsection 13(3) (

b) of the Quieting of Titles Act , in Gough v.

Newfoundland and Labrador , 2006 NLCA 3 . [ 40 ] The Crown submits that Gough , which is binding on this court, holds that the claimant must show actual possession of the character described in subsection 36(2) , which is “open, notorious and exclusive possession” for the required period, of the land that is the subject matter of the application in order for this court to issue a certificate against the Crown, and constructive possession therefore cannot suffice. [ 41 ] The Crown submits that the Court of Appeal has also confirmed that the legislative objective of subsection 36(1) of the Lands Act was to significantly limit future claims of adverse possession against the Crown, and by subsection 36(2) the legislature did not intend to make establishing adverse possession against the Crown easier (see: Ring v.

Newfoundland and Labrador , 2013 NLCA 66 ). The Crown did not object to the Hansard being admitted as an aid to

interpretation but submits that its contents must be approached with appropriate caution.

Application of the Law [ 42 ] The first issue raised in this case is whether constructive possession, derived under the doctrine of colour of title, is legally sufficient to establish adverse possession of Crown land, in particular the subject land, under subsection 36(2) of the Lands Act . “ Constructive ” possession, by definition, is possession which the law construes from the facts and circumstances, as distinguished from actual possession. [ 43 ] With respect, I am not persuaded by the able arguments of counsel for the Applicants that constructive possession can suffice to establish adverse possession of Crown land, in particular of the subject land.

I agree with the Crown that “ actual open, notorious and exclusive possession” of the subject land is required to be shown by the Applicants. I will explain why I have reached this conclusion. [ 44 ] The Applicants argue that the issue of whether constructive possession is legally sufficient to dispossess the Crown of the subject land under subsection 36(2) of the Lands Act turns on an

interpretation of one discrete part of subsection 36(2), as is demonstrated from the portion underlined below: 36(2) The period of possession of Crown lands prior to January 1, 1977, which would, by the application of the law pertaining to the acquisition of an interest in land based upon open, notorious and exclusive possession existing prior to the enactment of this

section , have been necessary to confer upon a person an interest in that land is considered to be, and always to have been, 20 continuous years immediately prior to January 1, 1977. [Emphasis added] [ 45 ] The Applicants also submit that the ameliorative purpose of the legislative provision, which they say was to make it easier to confirm possessory titles existing prior to the enactment of subsection 36(2) , supports the

interpretation that constructive possession based on the application of a common law doctrine can suffice to establish adverse possession of the subject land. [ 46 ] Generally, the true meaning of subsection 36(2) of the Lands Act would be determined based on an analysis of the text, the context and purpose of the relevant parts of the legislation. Here, however, the Court of Appeal has already conducted that exercise in Gough v. Newfoundland and Labrador , in an application made under subsection 13(3) (

b) of the Quieting of Titles Act for a parcel of Crown land that was not in the “open, notorious and exclusive” possession of the claimant. [ 47 ] In Gough , the Court of Appeal overturned a decision in which the trial judge had applied a common law proposition found in Wickham v.

Wickham Estate (1977), 17 Nfld. & P.E.I.R. 452, 46 A.P.R. 452 to find an entitlement was raised to Crown land that was not occupied but was used in support of the occupied land. [ 48 ] The trial judge concluded that while there were insufficient acts of possession of the subject land to establish “open, notorious and exclusive possession,” which as we shall see in law equates to actual, visible possession, an entitlement to the subject land was raised because it had been used as part of a larger parcel used by the same family to support the occupation of the adjacent “homestead” on which sufficient acts of possession had taken place and a certificate of title had been issued. [ 49 ] At paragraph 29, the Court of Appeal held, on the plain meaning of subsection 36(2) , that the legislature intended to limit the issuance of a certificate to only Crown lands that were in the “open, notorious and exclusive” possession of the claimant: [29] On the plain meaning of the words employed, the only conclusion to which I can come is that the legislature is authorizing the issuing of a certificate against the Crown where the land that is the subject matter of the application is found to be in the “open, notorious and exclusive” possession of the claimant, in accordance with the common law relating to acquisition of title by such possession, for the required period prior to the date after which such possession is no longer permitted to be counted.

Nothing else in either of the statutes satisfies me that the legislature intended a certificate to be issued for Crown land in respect of which such possession was not shown, but which was entered upon occasionally in order to take and use resources from the land. On the contrary, the use of the phrase “possession of Crown lands”, at the beginning of subsection 36(2) , coupled with the phrase “that land” when identifying the land in respect of which

an interest may be conferred, would lead me to conclude that the legislature intended actual possession of the character described, to the exclusion of occasional usage ancillary to actual possession of adjacent land, in order for it to be considered to be Crown land in respect of which an interest may have been conferred. [ 50 ] As I read paragraph 29, the Court of Appeal determined that in order to confer upon any person an interest in Crown lands, and therefore entitle the person to a certificate of title, the legislature mandated that possession of a specific nature and quality (“open, notorious and exclusive”) must be shown for “ the land claimed ”. [ 51 ] Gough also teaches that the meaning of “open, notorious and exclusive possession” in subsection 36(2) is actual, visible possession of the land claimed, and not an equivocal, occasional, special or temporary possession of the land claimed. [ 52 ] The Court of Appeal specifically rejected the argument that the mandated degree of actual, visible possession could be less strictly applied where the subject land was adjacent to land that the same claimants had used or occupied.

Without deciding whether the approach adopted by the trial judge could be applicable where entitlement to a certificate of title is sought against any other person, the court held that “ it clearly cannot be applied against the Crown .” On an application under subsection 13(3) (

b) of the Quieting of Titles Act , “ actual open, notorious and exclusive possession of the land claimed is required to be shown” by the claimant. [ 53 ] Were it necessary to go further than Gough to decide this issue, I also conclude that the broader statutory context of the Lands Act , which is a law enacted for the management of Crown lands and public lands in the province, does not support an

interpretation of subsection 36(2) that requires the common law to continue to apply in an application to defease the Crown of its title. [ 54 ]

Part 1 of the Lands Act , Crown Lands, outlines the means by which lands may be lawfully alienated from the Crown. Generally, Crown lands are alienated through a formal process commencing with an application to the Minister and concluding with the issuance of a Crown title, either a grant, a lease or a licence to occupy land.

Part 1 includes detailed provisions designed to give the Minister the power to preserve and protect Crown lands (see: ss. 25, 26, 27, 29.1, 30, 32 and 33). [ 55 ]

Part 1 of the Lands Act was amended and subsection 36(1) was added in 1976 to provide that no period of possession of Crown lands after December 31, 1976, would count for the purpose of conferring upon a person an interest in Crown lands. This was a limiting provision intended to abolish adverse possession in the future. [ 56 ] Subsection 36(2) provided that the only period of possession of Crown lands that would count for the purpose of conferring upon a person an interest in Crown lands was the 20 continuous years immediately prior to January 1, 1977:

(2) The period of possession of Crown lands prior to January 1, 1977, which would , by the application of the law pertaining to the acquisition of an interest in land based upon open, notorious and exclusive possession existing prior to the enactment of this section, have been necessary to confer upon a person an interest in that land is considered to be, and always to have been, 20 continuous years immediately prior to January 1, 1977 . [Emphasis Added] [ 57 ] The Applicants say it is significant that when subsection 36(2) of the Lands Act was enacted in 1976, the period of time during which open, notorious and exclusive possession of land would have been required to establish adverse possession against the Crown was 60 continuous years.

They argue that this shortening of the time period showed an intention to make it easier to confirm existing possessory titles that were based on adverse possession against the Crown. [ 58 ] With respect, this argument was addressed by the Court of Appeal in Ring .

In that case, the court held that the legislative objective of subsection 36(1) of the Lands Act was to significantly limit future claims of adverse possession against the Crown, and it rejected the argument that subsection 36(2) was intended to make establishing adverse possession against the Crown easier. [ 59 ] I conclude, following Gough , that a ctual open, notorious and exclusive possession of the subject land is required by subsection 36(2) of the Lands Act . [ 60 ] I further conclude, based on an analysis of the complete text of subsection 36(2), the statutory context, and the purpose of the provision, and following the Court of Appeal decisions in Gough and Ring , that “constructive” possession for the 20 year period immediately preceding January 1, 1977, is not legally sufficient to dispossess the Crown of the subject land. [ 61 ] My determination that constructive possession is insufficient means that the application must be dismissed, as there was no actual, visible possession of the subject land for the 20 year period immediately preceding January 1, 1977. [ 62 ] I will address the second issue for completeness.

Were the Applicants’ predecessors in title in constructive possession of the subject land during the 20 year period, under the common law doctrine of “colour of title”? Positions of the Parties [ 63 ] The Applicants argue that the application of the doctrine of colour of title would deem their predecessors in title to have been in possession of the subject land for a period sufficient to dispossess the Crown of its title to the subject land. The Applicants assert, on the facts, that the affected lands have been constructively possessed since Charles Pelley entered into possession of the northern

part in 1947. [ 64 ] The Crown did not address this argument in detail, relying instead on the law. The Applicable Law [ 65 ] The authorities confirm that the doctrine of “colour of title” is a part of the common law of adverse possession. [ 66 ] In Principles of Property Law, 6th ed. (Toronto: Carswell 2014), at page 147, Professor Bruce Ziff confirms that actual or

“pedal” possession of land must generally be shown to establish adverse possession: When the squatter has entered without a paper title to back up his or her right to be there, only actual or pedal possession ( pedis possession ) will suffice. Therefore, possession of a portion of the property will not confer rights over the whole parcel.

And fencing in the claimed lands provides useful evidence of possession, but is neither a necessary nor sufficient act by the squatter. [Emphasis added] [ 67 ] In the same passage Professor Ziff explains however how the doctrine of “colour of right (or title)” can sometimes support a claim for adverse possession: Less than actual possession of the entire area being claimed can sometimes suffice to support a claim for adverse possession. The clearest case arises when entry is made under colour of right (or title), typically under a defective grant.

Here it is well-settled that actual possession of only a part will be enough to allow the law to treat the squatter as being in constructive possession of the entire tract covered by the faulty document. [ 68 ] In Wickham , at paragraph 99, Goodridge J., as he then was, set out Principle 6 which explains the common law doctrine of colour of title: 6.

Where a person enters into possession of land relying in good faith on a document giving him the right to do so, he enters under colour of title and is deemed in law to have constructive possession of the entire area referred to in the document notwithstanding that he may have pedal' possession of only a portion but where a person enters into possession of land without a colour of title, he is considered to be in possession of only that area of which he had actual pedal possession. [ 69 ] In Wickham , at paragraph 129, Goodridge, J. confirmed that for the doctrine to apply there must be a paper writing under which the claimant honestly believes he is entitled to the entire property referred to in the document.

It further requires that the claimant must enter into possession under the paper writing. As Goodridge, J. stated, at paragraph 130: “ Then, and only then, does he by entering upon and possessing part of the land acquire constructive possession of all. ” Application of the Law to the Facts [ 70 ] The key issue I must resolve on the facts is when Charles Pelley went into actual possession of any part of the Pelley Parcel.

The resolution of that factual issue will ultimately determine whether the doctrine of “colour of title” could apply. [ 71 ] The paper title relied upon as a “colour of title” in this case is a deed dated March 4, 1947, by which a large parcel of land in George’s Brook was conveyed from Moses Pelley to his son, Charles Pelley.

The land was bounded “on the north by George’s Brook” and on the south by the “High Water Mark,” of George’s Brook harbour. [ 72 ] There is an attempt in the Affidavits filed in support of the application to identify both the year that Charles Pelley built a house on the back part of the “V-shaped” parcel and the year Charles Pelley sold and delivered the “V-shaped parcel” to Verdun Stanley. [ 73 ] Mr.

Andrews, who was born in 1949, recounts that the house was built when Charles Pelley returned from serving in the Second World War, sometime between 1945 and 1950, and the house and land was sold sometime around 1949 or 1950. [ 74 ] Rosalind Diamond and Herbert Stanley are children of the late Verdun Stanley. Ms. Diamond, who was born in 1948, said her father bought the house and land in the late 1940’s, “around 1948.” Mr.

Stanley, who was born in 1952, believed it was bought in 1948 around the time that his sister Rosalind Diamond was born. [ 75 ] The Affidavit evidence on these points is at best contradictory and in fairness is provided by persons who could have no personal knowledge of the events. [ 76 ] The evidence I accept on these points is contained in the Bill of Sale dated October 17, 1970, which was signed by Charles Pelley who had personal knowledge of the events. [ 77 ] The Bill of Sale confirms that in 1946 Charles Pelley sold and delivered land bounded on the south by “the waters of George’s Brook Harbour” and on the north by “the waters of George’s Brook river” to Verdun Stanley, in other words the entire Pelley Parcel.

He also confirmed that since the Pelley Parcel was sold and delivered, in 1946, Mr. Pelley had been paid $500.00 by Mr. Stanley in consideration for the land. [ 78 ] Based on the clear wording of the 1970 Bill of Sale, I find as a fact that by 1946, at the latest, Charles Pelley had built a house on part of the Pelley Parcel. I further find as a fact that by 1946 the entire Pelley Parcel was sold and delivered by Charles Pelley to Verdun Stanley. [ 79 ] I find that Charles Pelley went into possession of the ungranted lands by, at the latest, 1946 when he sold and delivered the lands to Verdun Stanley.

As Charles Pelley was in possession well before March 4, 1947, it must follow that he did not enter into possession under the 1947 deed. There is no evidence that when Charles Pelley entered into possession of part of the ungranted lands in 1946 he did so under another paper title honestly believing he was entitled to the entire property referred to in the paper writing. The doctrine of colour of title could therefore not apply to put him in constructive possession of the subject land.

DISPOSITION [ 80 ] It follows that subsection 36(2) of the Lands Act does not apply to the subject land and I cannot issue a certificate of title against the Crown under subsection 13(3) (

b) of the Quieting of Titles Act . [ 81 ] The application must therefore be dismissed. [ 82 ] As the successful party, the Crown shall have its costs of the proceeding taxed pursuant to Rule 55, Appendix 1, Scale of

Costs, Column 3. _____________________________ Peter A. O'Flaherty Justice