SUPREME COURT OF Nova Scotia Citation: Pitcher v. Merritt Developments Limited , 2020 NSSC 93 Date: 20200306 Bwt No.: 482989 Registry: Bridgewater Between: Jacqueline Alicia Pitcher and Robert Allan Pitcher Applicants v. Merrit Developments Limited and Michael Welton Respondents And Between: Bwt No.: 482996 Registry: Bridgewater Richard Krane, Daniel Flinn, Emery Peters and Jacqueline Pitcher Applicants v. Merrit Developments Limited and Michael Welton Respondents D E C I S I O N Judge: The Honourable Justice James L.

Chipman Heard: December 6, 9, 10 and 11, 2019, in Bridgewater, Nova Scotia Decision: March 6, 2020 C ounsel: Allen C. Fownes, for the Applicants Rubin Dexter, for the Respondents By the Court: Introduction and Background [ 1 ] The applicants are the owners of certain of the lots in what is known as the Clearwater Hills Subdivision (the Subdivision). The Subdivision is located in New Russell, Lunenburg County, Nova Scotia, and contains approved lots fronting on Clearwater Lake and Red Shirt Lake (also known as Long Lake). [ 2 ] The Subdivision was first developed by Roscoe Potter in the 1970s.

In 1978 the Subdivision was conveyed by Mr. Potter and his wife, Marjorie C. Potter, to Merrit[t] Developments Limited (Merritt).

[ 3 ] Mr. Potter, and after him Merritt, sold all of the approved lots in the Subdivision, with the last being sold in or about 1993. Title was retained by Merritt to the Stonebroke Road depicted on the April 4, 1979 Plan prepared by Christopher P. Masland, NSLS (the 1979 Masland Plan , exhibit 3). [ 4 ] Included in the land retained by Merritt shown on exhibit 3 are four narrow strips fronting on Stonebroke Road. Two of these strips of land extend to Clearwater Lake and the other two extend to Red Shirt Lake.

The planned Stonebroke Road, together with the four strips of land, comprise the extent of Merritt’s land (PID 60399227) within the Subdivision. [ 5 ] Running through the Subdivision are two roads named Clearwater Drive and Stonebroke Road, both of which travel over a number of lots in the Subdivision. These de facto roads are to be distinguished from the planned Stonebroke Road (only portions of which have been built) shown on the 1979 Masland Plan (exhibit 3). [ 6 ] The approximate location of the de facto roads are shown on the May 8, 1978 Plan of Mr.

Masland (the 1978 Masland Plan, exhibit 2) and the April 2, 1992 Plan of Subdivision of Erwin P. Turner (the Turner Plan, exhibit 5). [ 7 ] In 1984 an ad hoc association of lot owners in the Subdivision (the Clearwater Hills Homeowners Association (CHHA)), including Merritt, erected a metal swing gate which was intended to exclude from the Subdivision anyone (unless visiting with permission) who did not own a lot in the Subdivision.

Lot owners, including Merritt, were provided with a key to this swing gate. [ 8 ] In his affidavit filed January 10, 2019, Richard Krane attached a letter he received roughly five years after he and his (former) wife bought two lots in the Subdivision. The October 15, 1984 letter is signed by W.G. Potter (Wynne Potter, son of Roscoe and Marjorie Potter) and shows a copy to “M.C. Potter, President, Merritt Development”. The letter reads as follows: Dear Dr.

Krane: This is further to your letters of September 14 and 28, 1984 to my wife and myself regarding the formation of the Clearwater Hills Homeowners Association. I feel that there are several points that require clarification: 1) That Judy and I do not own property at Clearwater Lake and should not be part of your association. 2) All correspondence or contact regarding the activities that take place in the area should be directed to Merritt Development, New Ross, Nova Scotia – Attention: M.

Potter, President. 3) I would like to congratulate you for the initiative you have taken in establishing a secure gate at the entrance to the property. However, as Merritt Development are the only property owners at Clearwater Hills, I have enclosed my key and would ask that your Association reimburse Merritt Development for the cost of this extra key. 4) There appears to be concern on behalf of some of the owners on the recent right of way that was cleared at the back of lots on both Clearwater and Red Shirt Lake.

We would like to assure the Clearwater Hills Homeowners Association that this was not intended to interfere with or deface the landscape in the area of the cottage owners and no further cutting is intended. We have however, been asked by several owners to identify the right of ways that have been left for lake access and it may make sense to brush out a foot path so that people with small boats or canoes can more conveniently move them to the lake. 5) I contacted N.S.P.C. in Chester regarding the hydro hook up and they are waiting for Mr. Onyette to deliver his contract agreement before proceeding. Mr.

Conrad informed me that he has a crew available to start the work and would hope to have it completed by year end. I will attempt to contact Mr. Onyette and hopefully you folks will be able to turn the lights on early in the new year. …2 As I indicated earlier, your written correspondence and formal inquiries should be directed to Merritt Development in New Ross, however, as I have been handling operational matters for the company, please feel free to contact me if you have a question or concern. [ 9 ] In 2004, the original swing gate was taken down and moved to another location in the Subdivision.

Additional swing gates were subsequently erected in other locations in the Subdivision. [ 10 ] The CHHA took responsibility for the maintenance and repair of the de facto roads in the Subdivision, as well as the built portion of the planned Stonebroke Road shown on the 1979 Masland Plan. Until 1993, Merritt remained a member of the CHHA and contributed to the annual cost of maintaining and repairing the roads within the Subdivision. [ 11 ] In October 2010, Judy Welton acquired the shares of Merritt. Ms. Welton did not pay anything for the shares, paying only the legal fees arising out of the share transfer.

From October 2010 until July 28, 2018, when she transferred the shares to her son, Michael Welton, Ms. Welton was Merritt’s sole officer and director. Mr. Welton then assumed these positions, which he continues to hold. Like his mother before him, Mr. Welton paid only the legal fees incurred to transfer the shares. [ 12 ] In the late spring of 2011, Ms. Welton and her (since deceased) common law partner, Ronald Melanson, visited the Subdivision to view Merritt’s land. During her visit, Ms.

Welton had with her a copy of the Nova Scotia Property Online mapping of the Subdivision. [ 13 ] During this visit, she and Mr. Melanson drove on all of the roads in the Subdivision – the de facto roads, as well as the built portion of Stonebroke Road. While driving these roads she and Mr. Melanson passed two gates, one on each of the de facto roads. Both gates were open. [ 14 ] Ms. Welton was interested in viewing the narrow strips of land forming part of Merritt’s land.

She referred to these as “fingers”, stating in para. 11 of her July 15, 2019 affidavit: I got out of the car to get a better view of each of the “fingers”. In viewing these “fingers” I observed that all were treed with what

appeared to be older growth forest and that they appeared to be in their natural state. I certainly did not see any indication of any human use or occupation of any of these “fingers”. [ 15 ] The evidence of Ms. Welton regarding the natural state of the four narrow strips of land, which I will variously refer to as the fingers or corridors, is consistent with the affidavit evidence generally on this topic. [ 16 ] Beginning in the summer of 2018, Mr.

Welton made several visits to the Subdivision in an attempt to locate the exact boundaries of Merritt’s land and to assess its development potential. [ 17 ] On August 12, 2018, Mr. Welton met with the applicants and various other lot owners at Emery Peters’ cottage. Dr. Krane audio recorded the meeting and a certified transcript was subsequently prepared and produced (appendix

A) in Dr. Krane’s June 6, 2019 affidavit. Mr. Welton began the meeting as follows: … I own a small business in Kentville where we do excavation work for different sorts for the last four years. I also own a company named Merritt Developments and that’s what brings me here today. Emery [Peters] has asked me to come and explain plans I have for Merritt Developments. So, that’s what I’m here for.

And I have spoken with some individuals one on one up to now, but I’m here to explain what I have in my mind and try to put everyone’s mind at ease that I’m not here to upset anything that they have going on. [Transcript p. 3, lines 3 – 12] [ 18 ] Mr. Welton attempted to put the lot owners minds at ease with these comments: So, anything that I’m going to do is only going to help to alleviate that strain. So, for some more than others and that’s why I ask you to keep an open mind. I’m not here to disrupt anyone’s lifestyle.

And I’m not here to impose my will on you. [Transcript p. 8, lines 11 – 16] So, I would like to have access as everyone else does to drive in and out of Stonebroke, and not change anything on Stonebroke without appropriate landowner permission. So, there’s a gate here approximately – so, I would like a key to that gate and a blessing to go in and out and not change anything, not worsen anything on Stonebroke, across these lots. [Transcript p. 9, lines 14 – 20] [ 19 ] Having given these assurances, Mr.

Welton later made comments that foreshadowed what he ultimately caused to occur in the Subdivision : Once you get to here, this line right here is land that Merritt owns. From here through to the end of this cul-de-sac, through the end of here, and a 20-foot easement that goes to Clearwater Lake stream. So, that easement – I don’t own it, I just have legal easement. And it’s 20 feet wide and it would be to facilitate any ditching that would be required to be drained off in that location. So, anything that I intend to do as far as cutting any trees, building any driveway, it’s all on lands owned by Merritt.

So, that would be this column, this column here, this column here, this column, this column, and the 20-foot easement which I don’t own but have (inaudible). So, what I plan to do is improve this turnaround area from what it is now. That all work will be contained on lands that Merritt owns. So, I intend to widen it so it’s more easy to turn larger vehicles around. At the same time, the intersection wouldn’t be here as drawn. It’s more up this way and it – Clearwater Water Drive crosses the corner of this Lot 65. It also crosses over this place instead of entering at the top of it there.

Because this is wooded area here now. So, I intend to clear the turnaround area within the boundaries of land that Merritt owns. Make a 25-foot-wide opening to build a driveway that goes in here, goes down this side of my line, then turns 45, about 300 feet from the lake, and then goes straight again for a

section until I get to the lake. So, why am I doing all of that? Well, I was going to install four pads that you could park an RV on. And my intention is to lease those pads to users on a yearly basis. I’ll be installing a power pole down the driveway to allow for plug-ins to plug in the RV units. I’ve talked with the Planning Department in the Municipality of Chester and they’ve given me a green light to do what I’ve explained. I’ve also – the other regulatory body that’s involved is the province through the Department of Environment. So, it’s those two governments that have control over development here.

SPEAKER UNKNOWN: What about water and sewer – I’m just (inaudible)? MR. WELTON: Well, sewers will be privies adjacent to the pads and the hydro will be as I explained. And water will be up to the RV units to look after their own water. So, that’s basically what I intend to do. I have contacted individual property owners to try to substantiate these markers. And if you’ve seen new ribbons (inaudible) up, that’s what I’m trying to do with those ribbons. So, that’s it in a nutshell. [Transcript p. 9, lines 21 – 25; p. 10, lines 1 - 25 and p. 11, lines 1 – 21] [ 20 ] Mr.

Welton then returned to making assurances: All I can assure you is I’ll do nothing that is against any regulation. [Transcript p. 22, lines 6 and 7]

All I can tell you is that my approach will be to do everything within the legal rules established. And at the same time not to disrupt any adjacent land. [Transcript p. 23, lines 9 – 12] [ 21 ] With respect to what Ms. Welton referred to as the fingers, the four strips of land fronting on Stonebroke Road (two extending to Clearwater Lake and two going to Red Shirt Lake), Mr. Welton provided his “theory” as to their genesis: SPEAKER UNKNOWN: Right.

I think what we’re dealing with are these four right-of-ways and (inaudible) SPEAKER UNKNOWN: Do you know what the original intention was when the plan was made 35 years ago for those four right-of- ways? MR. WELTON: I can’t – I have a theory but I --- SPEAKER UNKNOWN: We all do. MR. WELTON: I assumed it was to allow people who had landlocked lots access to the water. SPEAKER UNKNOWN: That is typically the reason. MR. WELTON: That’s my opinion. [Transcript p. 14, lines 9 – 21] [ 22 ] The owner of lot 65 (Dr. Krane) then expressed specific concerns about Mr.

Welton’s plans for the land: SPEAKER UNKNOWN: Well, I’m a vested owner in Lot 65 which is right at that place where you want to make the changes. And I’m adjacent to that right-of-way. And to have four pads put in there with recreational vehicles is really going to be disruptive. And I’m also concerned about that area right at the beginning of my driveway.

People are just coming in and right down my driveway. [Transcript p. 19, lines 14 – 21] [ 23 ] In late October 2018, Merritt began construction of several recreational vehicle (RV) sites and associated facilities on portions of Merritt’s land within the Subdivision. This work continued into the fall. Daniel Flinn described it as follows at para. 9 in his affidavit filed June 6, 2019: In the Fall and into December 2018 I observed Mr.

Welton and his men and equipment opening up each of the drainage easement/rights of way to their full extent, creating what is intended to be a busy RV park and pull through camping sites, at least one Pit privy on Dr. Krane’s boundary line, and a widening of the roads, throughout much of our entire Clearwater Hills subdivision.

Heavy trucks and machinery drove daily through the subdivision and made a lot of dust, mud and potholes in our road – Stonebroke Rd. [ 24 ] In Jacqueline Pitcher’s affidavit filed June 13, 2019, she described the impact of Merritt’s work as follows at para. 11: The drainage easement corridor immediately adjacent to our cottage lot has been greatly denuded of trees, and the pooling of water that has resulted from the construction done on it by the defendants is causing silt to enter the brooks leading to the lake.

This construction continues down to the edge of the lakefront and the defendants obliterated our firepit area. [ 25 ] Dr. Krane referred to Merritt’s work as “drastic action” in para. 15 of his affidavit filed August 1, 2019: The destruction of trees and alteration of the water course i.e. the brook that runs down the hill between my property and that of the Pitchers and then the opening up of the other fingers of land was a drastic action for him to take. [ 26 ] In Mr.

Welton’s affidavit filed October 3, 2019, he referred to Merritt’s construction work not being completed and then touched on the projected income stream for the RV sites: In or about late October, 2018, Merritt began the construction of a number of RV sites and associated facilities on portions of Merritt’s lands (“the construction work”). Merritt was prevented from completing the construction work by the locking of the two (2) gates straddling the de facto roads. As of the date hereof, the construction work remains unfinished.

Once completed, it is Merritt’s intention to lease these RV sites on a yearly basis. [para. 7] While the above terms represent the loss to Merritt of the remainder of the 2019 construction season, and thus the ability to complete the construction work for the lease of the RV sites commencing in January, 2020, it was a delay of only several months and will permit Merritt, if successful, to complete the construction work in the spring of 2020, and thereby make the RV sites available for use commencing in the spring of 2020.

I anticipated 12 RV sites to be available for lease in 2020 at a per site lease rate of $2,400.00 per year, inclusive of HST. This represents annual revenues of $28,800.00. [paras. 15, 16]

The Companion Lawsuits [ 27 ] On November 19, 2018, companion lawsuits were filed by Jacqueline and Robert Pitcher, and by Dr. Krane, Mr. Flinn, Mr. Peters and Ms. Pitcher against Merritt and Mr. Welton. The applicants filed Applications in Court and these were met with Notices of Contest filed February 7, 2019. [ 28 ] Pursuant to an amended consent order for directions, the parties agreed that the evidence in both lawsuits would be heard together. In the result, the matters were heard over four days.

In addition to the viva voce evidence, the Court received affidavits (in several instances, more than one) from the parties. The applicants also filed affidavits from Oliver Berrigan, Adam Towill, Stephen LeBlanc and their expert, Kevin Fogarty, NSLS. In addition to Mr. Welton’s affidavits, the respondents filed affidavits from Ms. Welton, Robert Tupper, Bruce Weir and Kevin Moore. They also entered a September 18, 2019 report of their expert, photogrammetrist Curtis A. Speight. All of the applicants’ affiants were cross-examined. Of the respondents’ affiants, Mr. Welton and Ms. Welton were cross-examined.

In total, 14 exhibits were entered, inclusive of several of the affidavit exhibits in larger (easier to read) sizes. [ 29 ] As the record will reflect, at the outset of the applications, I made a host of evidentiary rulings. Taken together, these rulings had the effect of eliminating or restricting certain paras. within various of the applicants’ affidavits. Most of the alterations were on account of hearsay or argument.

In coming to my decision, I have completely disregarded those portions of the affidavits deemed inadmissible. [ 30 ] The applicants requested that I take a view (Rule 51.12) of the Subdivision and the respondents resisted. Having heard the competing arguments, by oral decision rendered December 10, 2019, I decided that in the circumstances of this case it was not appropriate or necessary to take a view. In this regard, I relied upon and cited the decision of Justice Wood (as he then was) in Viehbeck v.

Pook , 2012 NSSC 48 , at paras. 6 – 8 : 6 The respondents and intervenors requested that the Court take a view of the Beach ROW and surrounding properties. Such a process is contemplated by Civil Procedure Rule 51.12 which states: Taking a view 51.12

(1) A presiding judge may inspect a place or thing outside court in the presence of the parties.

(2) A party may inform the judge in court, and on record, of that which the party wishes the judge to observe.

(3) No one may communicate with the judge about the issues or the evidence when the inspection is being made, except a party may point the way to that which the party wishes the judge to observe. 7 The applicants took the position that such a view was not appropriate or necessary. 8 At the commencement of the hearing, I advised the parties that I did not believe it was necessary to take a view of the properties which were the subject of this proceeding. Parties to litigation have an obligation to provide the court with the necessary evidence to make a decision.

In proceedings involving land, this evidence will include eye witness descriptions (in viva voce testimony or affidavits), photographs and survey plans. In this case, the parties provided evidence of this nature and I was satisfied that I had sufficient information on which I could determine the matters in issue . [Emphasis added] [ 31 ] The pleadings are quite lengthy and, in the following paras., I have reproduced key excerpts (as they appear in the originals, without grammatical corrections). In their Notice of Application in Court, the Pitchers seek: 1.

A declaration of ownership through the doctrine of ouster and adverse possession of a part of the road allowance shown as PID 60399227 , which have been in actual use as a camping area and fire pit and wharf adjacent to the residential property of the Applicants; Jacqueline Pitcher and her husband Robert Allan Pitcher claim possession of a part of the road allowance adjacent to their lot [being PID 60130978 ] as having been used and enjoyed by them to the exclusion of the Respondents and anyone else for a period in excess of twenty five consecutive years when their possession and that of their predecessors in title are taken together.

The Applicants individually and as dues paying members of an unincorporated group of lot owners each own lots in the subdivision of lots created which lie between Long Lake (sometimes known as Redshirt Lake) and Clearwater Lake in the vicinity or locality know as New Russell in northern Lunenburg County, Nova Scotia. 2.

An interim injunction restraining you from continuing to cut trees and excavate or do other earth work in the subdivision whether on the road allowance or on the de facto roads until the rights of the parties have been adjudicated by this Honourable Court; A motion for an Interim Injunction will be made if agreement to stop construction is not arrived at between the parties. 3.

General Damages for the Respondents trespass and nuisance in cutting trees and defiguring the property to which the Applicants claim title through possession, together with costs of surveying and other special damages. [ 32 ] In their Notice of Contest the respondents say the Pitchers’ application, in the main, should be dismissed because: 1.

The Applicants have not been in in open, notorious, actual, exclusive, and continuous possession for the minimum 20 years, pursuant to either s. 10 of the Real Property Limitations Act of Nova Scotia or the doctrine of lost modern grant, of that portion of the road allowance shown as PID 60399227, which portion is alleged to have been used by the Applicants and their predecessors in title as a camping and fire pit and wharf adjacent (“the land claimed”). 2. The occupation by the Applicants and their predecessors in title of land claimed has not been open, notorious and visible for the

requisite minimum 20 year period. 3. The occupation by the Applicants and their predecessors in title has not, in any event, not been inconsistent with the intended use by Merritt of the land claimed and has not ousted Merritt from its normal use of same. [ 33 ] In their Amended Notice of Application in Court, Dr. Krane, Mr. Flinn, Mr. Peters and Ms. Pitcher claim: 1.

A declaration of ownership through the doctrine of ouster and adverse possession of the road allowances shown as PID 60399227 , together with the de facto roadways in the subdivision which are in actual use and outside the road allowance; Jacqueline Pitcher and her husband Robert Allan Pitcher claim under a separate Application in Court, adverse possession of a part of the road allowance adjacent to their lot [being PID 60130978 ] which the Applicants herein support and confirm there is no conflict in their claims; The Applicants individually and as representatives of an unincorporated group of lot owners each own lots in the subdivision of lots created which lie between Long Lake (sometimes know as Redshirt Lake) and Clearwater Lake in the vicinity or locality known as New Russell in northern Lunenburg County, Nova Scotia. 2.

An interim injunction restraining you from continuing to cut trees and excavate or do other earth work in the subdivision whether on the road allowance or on the de facto roads until the rights of the parties have been adjudicated by this Honourable Court; A motion for an Interim Injunction will be made if agreement to stop construction is not arrived at between the parties. 3. The Respondents and each of them are estopped from denying that the road parcel in the subdivision was created for the benefit of the Applicants and others with similar rights of access.

The plan of the Respondents to develop an RV Park and sites within the bounds of the road parcel would be an excessive and unreasonable user of the road parcel and an infringement of the rights of those holding easement rights in the road parcel. 4. The use of the road parcel to lease spaces for recreational vehicle campers, their pit privy septic systems in proximity to the Applicants’ lots is an unjustifiable interference with their rights of access and egress to their lots.

The use of the road parcel for development and for purposes other than assuring access to the Applicants is not a permitted use for the road parcel. 5. General Damages for the Respondents trespass and nuisance in cutting trees and defiguring the property to which the Applicants claim title through possession, together with costs of surveying and other special damages. [ 34 ] The Amended Notice of Contest asserts the application should be dismissed on these grounds: 1.

The Applicants have been not been in open, notorious, actual, exclusive and continuous possession for the minimum 20 years, pursuant to either s. 10 of the Real Property Limitations Act of Nova Scotia or the doctrine of lost modern grant, of either what are described in the Notice of Application as the “road allowances” shown as PID 60399227 or the “ de facto roadways in the subdivision”. 2. The “road allowance” shown as PID 60399227 is part of the subdivision plan for what is known as the Clearwater Hills Subdivision, which plan was approved by the Municipality of the District of Chester on April 26, 1979.

Only a portion of the “road allowance” has, to date, been built by Merritt. The “road allowance” has and continues to be owned by Merritt. 3. The Applicants have not had either actual or exclusive possession of the “road allowance”, whether of the portion built, or otherwise, for the requisite minimum 20 continuous years. Moreover, the Applicants have used that portion of the “road allowance” which has been built in common with other lot owners in the Clearwater Hill Subdivision, including Merritt. 4. Merritt sold its last lot in the Clearwater Hills Subdivision in September, 1990.

Both prior to and after said sale Merritt has entered upon and used that portion of the road allowance which has been built, including in 2011. The limitation clock was reset every time Merritt did so and, as such, the requisite continuous 20 year period has not been met by the Applicants. 5. In addition to the “road allowance”, Merritt also built what are described as by the Applicants as the “ de facto roadways in the subdivision”. These “ de facto roadways” were also built by Merritt and have also been entered upon and used by Merritt , both prior to and after the sale of its last lot in 1990. 6.

Until in or about 1993, Merritt paid it share of the cost to maintain both the “road allowance” and de facto roadways” including graveling, grading, ditching and installing culverts, and was provided by the lot owners’ association, of which the Applicants are members, with key(

s) to the gate(

s) alleged by the Applicants to have restricted access to the existing roads. Subsequent to 1993 Merritt has entered upon and used said roads, including in 2011. 7. The Applicants have, in their respective deeds, an express grant of easement from Merritt to use the “ de facto roadways”, as well as that portion of the “road allowance” which has been built.

As such, the Applicants’ use of same has been, and continues to be, by express grant of easement from Merritt and, as such, does not constitute possession such as to bring their use of same within either s. 10 of the Real Property Limitations Act of Nova Scotia or the doctrine of lost modern grant. 7A While the “road allowance” was created for ingress to the egress from the public road/highway to the lots in the Subdivision, the Respondents deny that Merritt is in any manner estopped from the construction of RV sites and privies along portions of the road allowance.

The Respondents deny that there is any basis in fact for estoppel and put the Applicants to the strict proof thereof. 7B Moreover, the “fingers” or “corridors” which run from the “road allowance” to the shores of Red Shirt Lake and Clearwater Lake are not part of the “road allowance”, The Respondents deny that Merritt is in any matter estopped from the construction of RV sites and privies on portions of said “fingers” or “corridors”.

The Respondents deny that there is any basis in fact for estoppel and put the Applicants to the strict proof thereof. 7C In any event, the Respondents deny that the development of the RV sites and privies within the bounds of the “road allowance” or

the “fingers” or “corridors” constitutes an excessive and unreasonable user of the “road allowance”, an infringement of the Applicant’s rights in same, or an unjustifiable interference with the Applicants; rights of ingress to and egress to their respective lots in the Subdivision. 8. The Respondents deny that they have committed trespass and/or nuisance or that they have disfigured the subject land. 9. The Respondents, in any event, deny that the Applicants have suffered any compensable damages. 10.

The Respondents further deny that the Applicants have suffered any compensable special damages. [ 35 ] On February 20, 2019, notices of motion seeking the pleaded interim injunction were filed by the applicants in both applications. These motions were abandoned when the parties reached an agreement in mid-May 2019, the terms of which included: 1. Merritt would be provided with a key to the gate straddling the de facto Stonebroke Road; 2. Pending the hearing of the lawsuits, Merritt and Mr.

Welton would be permitted entry upon the entire course of the de facto Stonebroke Road as well as the built portion of the Stonebroke Road for the purpose of accessing Merritt’s lands so as to be able to use Merritt’s recreational vehicle (RV) then placed adjacent to the built portion of the Stonebroke Road; 3. Merritt was permitted to do any work necessary to prevent any deterioration of Merritt’s lands; and 4. The applicants’ motions for interim injunctions, and their written undertaking as to damages were to be withdrawn on a without costs basis.

Distilled Issues [ 36 ] Given the pleadings and evidence, the within applications may be reduced to these issues: 1) Through the doctrine of ouster and adverse possession: a. do the Pitchers have ownership of an eastern portion of PID 60399227 along Clearwater Lake? b. do the applicants have ownership of portions of PID 60399227 encompassing the planned Stonebroke Road? c. do the applicants have ownership of portions of the de facto roads? 2) What is the nature of the four fingers, and are the respondents entitled to develop them as an RV park? a.

Do the applicants have a right of way over the fingers? 3) Are damages warranted and, if so, under what headings and for what amounts? Through the doctrine of ouster and adverse possession do the Pitchers have ownership of an eastern portion of PID 60399227 along Clearwater Lake? [ 37 ] After Mr. Potter, and subsequently Merritt, sold all of the approved lots in the Subdivision, Merritt retained ownership of PID 6039927, inclusive of the strip of land (Finger 1) shown on the 1979 Masland Plan located between lots 19 (the Pitchers’ lot) and 65 (Dr.

Krane’s lot). [ 38 ] The 1979 Masland Plan was approved by the Municipality of the District of Chester (Chester) on April 26, 1979, and filed with the Registry of Deeds Office at Lunenburg as Plan-804. [ 39 ] Oliver Berrigan and his wife, Madeline Berrigan, purchased Lot 19 (PID 60130978), in 1984. They sold the lot to the Pitchers in 2010. On cross-examination, Mr. Berrigan referred to Finger 1 as “all grown up”. Mr. Berrigan was directed to exhibit B to his affidavit filed January 7, 2019 and shown the larger version (exhibit 6). This is Mr. Fogarty’s November 21, 2018 survey sketch (Mr.

Fogarty’s sketch) showing the triangular portion (inclusive of a fire pit area) of Finger 1 being claimed by the Pitchers. Mr. Berrigan said he “believed the fire pit [area] to be part of our property”. [ 40 ] In his affidavit Mr. Berrigan stated that when he purchased lot 19, he was not shown any particular boundaries of the lot by the then owners. However, he noticed a survey marker near the shoreline of Clearwater Lake which he understood to be the westernmost corner of lot 19 along the lake. Mr.

Berrigan further stated that there is a blazed tree some 77ʹ in line with lot 19 from the survey marker, which he and his wife took to be the western sideline of lot 19. Mr. Fogarty’s sketch shows the survey marker and blazed tree to which Mr. Berrigan referred in his affidavit. [ 41 ] Exhibit A to Mr. Berrigan’s affidavit is a copy of his deed to lot 19. The legal description does not include any part of Finger 1, including the triangular portion being claimed. [ 42 ] Mr.

Berrigan stated in his affidavit that the fire pit and the “cleared land around it near the shore” were not there when he and his wife purchased lot 19. Rather, he built the fire pit to burn off the wood and trees that he and his wife cut down while building their cottage. [ 43 ] Mr. Berrigan stated that he and his wife “continuously used this fire pit area, believing it to be ours”. The specific acts and physical extent of such “use” is not set out in Mr. Berrigan’s affidavit, save that for 26 years he and his wife kept their firewood, had a

seating area, and raked and cut bushes from the access way shown on Mr. Fogarty’s sketch. Mr. Berrigan added that in all this time no one ever interfered with their use and enjoyment of the fire pit area or of “the land in which we were in possession”. [ 44 ] In her affidavit filed January 10, 2019, Ms. Pitcher stated that Mr. Berrigan showed her and her husband lot 19, including the fire pit area, “the extent of which appeared to be marked by a survey marker near the shoreline of Clearwater Lake” and which Ms. Pitcher understood to be the westernmost corner of lot 19 on the shoreline of Clearwater Lake. Ms.

Pitcher stated that the fire pit and the cleared land around it were there at the time she and Mr. Pitcher purchased lot 19. [ 45 ] Ms. Pitcher further said that, from 2010 until the time of deposing her affidavit in 2019, she and Mr. Pitcher maintained the fire pit area – specifically, that they kept their firewood, had a seating area, and raked and cut bushes, all from the access way shown on Mr. Fogarty’s sketch. She went on to say that she and Mr. Pitcher also maintained a “wharf” at the waterfront of the fire pit area for the use of their boats on the lake.

She clarified on cross-examination that the wharf is a floating dock connected by two planks to the shore of the fire pit area. [ 46 ] Ms. Pitcher continued in her affidavit to say that at the time she and her husband purchased lot 19 in June 2010, she was issued a key to the swing gate on the de facto road, Clearwater Drive.

In para. 20 of her affidavit she stated: …except when I was expecting a guest without a key, always locked the gate after passing through, to maintain privacy and to exclude unauthorized use of the roadways in the subdivision. [ 47 ] In the Amended Notice of Application in Court in the second application the applicants (which include Ms. Pitcher) referred to the swing gates: 9. The Applicants, as will show in the Affidavit of Richard Krane, gated the roadway to exclude the public and anyone who did not own a lot in the subdivision. 10.

The Applicants intended to exclude all of the public from the use of the roads and access of the subdivision: this included the developer who had sold all of the lots in the subdivision. [ 48 ] The Pitchers’ lot was one of the lots approved by Chester under the 1979 Masland Plan. A copy of the Pitchers’ deed to lot 19 is found at exhibit A to Ms. Pitcher’s affidavit. It contains a legal description of lot 19. As in the Berrigan deed before it, the legal description does not include the fire pit area or any of the triangular portion of land from Finger 1 that they are claiming. [ 49 ] In Mr.

Pitcher’s affidavit filed August 1, 2019, he spoke to his understanding of Finger 1 as at the time of the meeting with Mr. Welton (August 12, 2018): 1. I attended the meeting of lot owners to which Mr. Welton was invited to speak to tell us what his plans for the remaining lands were, and met with him afterwards. 2. I was very interested to know, as I knew that one of the narrow parcels of land running to the lake, and which to that point in time was undeveloped, lay adjacent to our cabin lot and the cabin lot of Dr. Richard Krane. 3.

I did not know exactly the dimensions of the finger of land, but knew that no one during our ownership had made any use of it, and I wondered if our land would be impacted by Mr. Welton’s plans, so I made a point of inviting him to come over to show me where he planned to put the RVs. [ 50 ] In their brief, the Pitchers argue that Merritt and Mr. Welton, in clearing the trees “…did not respect our fire pit area that was carved out of the corridor, for their exclusive use, and that the use was apparent to anyone who viewed it”. [ 51 ] By way of response, Mr.

Welton stated in his affidavit filed July 16, 2019: 8 In walking down the subject finger I walked all the way down to the shoreline of Clearwater Lake, which is an undulating shoreline, I did not, however, see the fire pit area which the Pitchers claim in the herein proceeding. This area was completely obscured from my view, while standing at the shoreline, by the thick undergrowth surrounding it and which reached to the water’s edge.

Nor was I able to see any raft or floating dock along the shore. … 16 With the exception of the fire pit area of the subject finger, on my visits to the Subdivision I found all four (4) fingers to be in their natural state, fully treed with mature growth, and without any sign of human activity or occupation. I also found the unbuilt portion of the Stonebroke Road to be in its natural state, also fully treed and undisturbed.

There was certainly nothing that I saw that would have alerted me or caused me to be concerned about any use or occupation of any of the fingers or the unbuilt portion of the Stonebroke Road. [ 52 ] In Mr. Speight’s report he provided the following

summary referable to the land claimed by the Pitchers: 5.0

Summary

Interpretation of the various years of aerial photography has indicated that from 1976 to 2012 Clearwater Hill Subdivision has undergone significant development. It appears the small triangular portion of the first finger of PID #60399227, lands owned by Merritt Developments Ltd. situated between lot 19 and lot 65 has been utilized somewhat in the area around the shoreline of Clearwater Lake . No evidence of usage was visible for fingers two and three throughout the various years of imagery. The fourth finger had no signs of usage until on the 2012 photography at which time there appeared to be considerable usage near and around the shoreline of Long Lake. [Emphasis added]

[ 53 ] In Mr. Speight’s response letter (exhibit 13) to applicants’ counsel’s questions, the following questions and answers appear: 1. Overhead imagery can be very tricky to analyze, especially by the layperson as we don’t normally see the land from that aspect. Answer: Agree 2. Overhead imagery is good at identifying objects that are exposed but it cannot be used to definitively disprove the existence of something obscured by foliage, shadows, cloud cover or reflected sunlight on a body of water?

Answer: Generally true. 1992 – From their report “There appears to be minimal changes to the vegetation next to the lake on the small triangular portion” this could be the firepit and it could have been there since 1986 (most recent photos prior to 1992) Answer: In my opinion this is possible.

As stated previously aerial photography is a snapshot in time. 2002 – Activity was noted in the firepit area (triangular portion) Answer: It was noted in the Report there appears to be minimal activity. 2002 – The docks were not seen in these images but as the image is from early July, they may not have been put in until later in the year? Answer: This is certainly possible however the images were taken on July 12 and 13.

This seems late in the season to put docks in. 2010 – No images taken in this year which the Pitchers took ownership Answer: I agree. 2012 – Noted activity in the firepit area (triangular portion) Answer: In my opinion and similar to previous years there appears to be minimal activity in this area. [ 54 ] In para. 9 of his affidavit filed June 6, 2019, Dr. Krane stated that until the construction work by the respondents, the corridors in the Subdivision “were in a state of nature”. [ 55 ] The uncleared state of the fingers is also mentioned in para. 18 of Mr.

Flinn’s affidavit where he stated that “they were in a state of nature until December 2018”. [ 56 ] In her affidavit, Ms. Welton stated that she and Mr. Melanson entered the Subdivision and drove on all of the roads – the de facto roads, as well as the built portion of the planned Stonebroke Road shown on the 1979 Masland Plan. She stated that in driving these roads she and Mr. Melanson passed two gates – one on each de facto road – and that both gates were open. [ 57 ] Ms. Welton was interested in viewing the corridors and she deposed in her affidavit that they all appeared to be in a natural state.

She was not shaken on this point when cross-examined. [ 58 ] Ms. Welton’s evidence that the fingers were undeveloped is consistent with that of Dr. Krane, Mr. Flinn, Mr. Pitcher, Mr. Welton, Mr. Tupper and Mr. Weir. The Law [ 59 ] In Lynch v. Nova Scotia (Attorney General) , (1985), 71 N.S.R. (2d) 6, [1985] N.S.J.

No. 456 (S.C.T.D.) , Justice Hallett explained that the doctrine of adverse possession “is based on the premise that a legal owner cannot stand aside and allow a trespasser or co-tenant to make improvements to the property and pay the taxes over many years and then come in and claim it, even though he could see the other was in possession”: para. 7.

After setting out the principles of adverse possession, he emphasized that “very cogent evidence” is necessary to extinguish legal title: 7 … As a safeguard to the legal owner, the Courts have insisted that the possession be of the quality described before the legal owner's title is extinguished; otherwise there could be great injustices if by doing sporadic, unobservable acts on the land a person could acquire possessory title.

Hence the care which should be taken by a Court before a finding is made that the title of the legal owner to woodland in particular, is extinguished as the acts relied upon are very often sporadic in nature and unobserved by the true owner yet can qualify as being acts that are consistent with the limited use a person who owns land of that nature would make of such land. 8 As claims for possessory title extinguish the title of the legal owner pursuant to a limitations Act, the Court should only act on very cogent evidence that proves that the person's possession has been visible, exclusive and continuous possession for the required statutory period.

Legal owners should not be dispossessed where land is such that the legal owner would not make a great deal of use of the land,

such as wood land, particularly if the claim is made not by a trespasser but by one co-tenant or more against others.

Section 12 of theLimitation of Actions Act provides that no person shall be deemed to have been in possession of any land within the meaning of the Actmerely by reason of having made an entry thereon. Where the acts of possession relied upon with respect to wood land are the occasionalunobserved cutting of logs and firewood from the property, such acts do not improve the property even though they evidence theintention of one co-tenant to possess it exclusively.

It cannot be too strongly emphasized that evidence of possession to extinguish titlemust be of a quality that has been required by the Courts for hundreds of years. Each case turns on its own facts. [Emphasis added] [60] In their brief, the applicants cite recent Supreme Court of Nova Scotia authority in support of the Pitchers’ ownership claim: The recent Nova Scotia Supreme Court case of Roode and Roode v.

AGNS and Johnston et al, 2018 NSSC 293, per Scaravelli, J., whichI understand is now on appeal, found possession sufficient to oust the owner of a road parcel, where the facts showed there had beenoccasional incursions on the land, but the Court had to look at the context, and who had exercised dominion and control of the parcel ofland. The case canvasses the requirements to show adverse possession – e.g. Padgorski v.

Cook, 2013 NSCA 47, and discussescolourable adverse possession where constructive possession of the whole can be inferred if the persons in possession have an honestbelief in their right of possession, as is the case here. [61] As acknowledged by Mr. Fownes, the referenced decision was appealed. The Court of Appeal released its judgment in the timesince these applications were heard. In Johnston v. Roode, 2019 NSCA 98, Chief Justice Wood found that the trial judge made apalpable and overriding error in finding adverse possession of the entire lot in the absence of proof of exclusivity.

The Court of Appealreviewed the principles applicable to adverse possession claims at para. 25: 25 Even if there was a misunderstanding with respect to the boundary location, the question remains as to what impact that shouldhave on the adverse possession analysis. In Cook v. Podgorski, supra, this Court summarized the principles applicable to adversepossession claims as follows: [49] It will be useful to remind ourselves of the relevant principles before turning to their application to the facts:

(1) The law presumes the legal owner to be in possession; i.e., that seizin follows title. This presumption is not compromisedbecause the owner is not in actual occupation, (Ezbeidy v. Phalen, (1957), (NS SC), 11 D.L.R. (2d) 660 (N.S. T.D.)approved in Fralick at para 40);

(2) To oust the legal owner, it is necessary to establish actual adverse occupation which is exclusive, continuous, open and notoriousfor the requisite period of 20 years, (Fralick, para 40);

(3) The conduct of the possessor must be that of an owner which would exclude the true owner from the land, (Brown v. Philips etal, (1963), (ON CA), 42 D.L.R. (2d) 38, (Ont. C.A.) approved in Fralick, para 40);

(4) A possessor may have constructive possession of more than what he occupies if he has colour of title - i.e., a deed - whether ornot the deed is valid, (MacDonald v. MacCormack, 2009 NSCA 12 (N.S. C.A.), para 93). Otherwise, he can only claim what he actuallyoccupies;

(5) To claim constructive possession, the adverse possessor must have a bona fide belief that he has title, (MacDonald v.MacCormack, para 94);

(6) But there can be no constructive possession based on the possessor's belief where his deed does not include the land over whichpossession is claimed, (MacDonald v. MacCormack, para 95; Mason v. Nova Scotia (Minister of Justice) (1999), 1999 NSCA 63, 176 N.S.R. (2d) 321 (N.S. C.A.), para 31 to 33; R.B. Ferguson Construction Ltd. v. Nova Scotia (Attorney General), (1989) (NS CA), 91 N.S.R. (2d) 226 (N.S.C.A.); Rafuse v. Meister, (1979) (NS CA), 32 N.S.R. (2d) 217(N.S. C.A.) at para 22-25; Wood v. LeBlanc, (1904), (SCC), 34 S.C.R. 627 (S.C.C.)).

(7) The type of possession required varies with the nature of the land: Whether there has been sufficient possession of the kind contemplated by the statute is largely a question of fact in each case in whichdue regard is to be had to the exact nature and situation of the land in dispute. Possession must be considered in every case with referenceto the peculiar circumstances, for the facts constituting possession in one case may be wholly inadequate to prove it in another.

Thecharacter and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor mightreasonably be expected to follow with a due regard to their own interests, are factors to be taken into account in determining thesufficiency of possession. Anger and Honsberger, Law of Real Property, 3rd Ed., s.29:60.80. And for a very useful history and

summary of applicable principles, see Brill v. Nova Scotia (Attorney General), 2010 NSCA 69 (N.S.C.A.), para 127-155. [62] Chief Justice Wood continued his adverse possession analysis in the context of mistake at para. 26: 26 Courts require claimants to prove an intention to exclude the true owner as part of showing that possession is "adverse".However, in cases of mistake as to boundary location, the authorities have held that this may be inferred (see Gould v. Edmonds, 2001NSCA 184). The existence of such a mistake does not change the other requirements for a claim of adverse possession.

For example, inPepper v. Brooker, 2017 ONCA 532, the parties were mistaken about the location of the boundary between cottage properties. The trialjudge made a finding that the plaintiffs had intended to exclude the true owners; however, that did not avoid the necessity of proving theother elements of adverse possession including actual exclusion of the owner. The Ontario Court of Appeal said the following:

[35] Applying Teis, the trial judge reasoned that because the parties were mutually mistaken about the boundary between Lots 3 and4, he could "draw the inference that the Peppers intended to occupy parts of Lot 4...with the intention to exclude all others, including theowner Mr. Brooker." [36] This finding was not challenged on appeal. However, I pause to observe that this finding -- an intention to exclude -- appears tobe at odds with the evidence. No one, and certainly not Mr. Brooker, was prevented from using the road and steps to access theshoreline.

This ought to have led the trial judge to conclude that the Peppers had failed to establish an intention to exclude. [37] But even assuming that finding can stand, there exists a more fundamental problem. An intention to exclude the true owner of aproperty is just one part of the adverse possession equation. An adverse possession claimant must succeed in his or her intention byachieving effective exclusion from the property, even in cases of mutual mistake: Shennan v.

Szewczyk, 2010 ONCA 679, 96 R.P.R. (4th)190. [63] The Court then undertook a review of adverse possession as applied to the evidence in the case on appeal (paras. 28 – 39). Atthe outset, the Chief Justice highlighted the elements of a claim for adverse possession at para. 28: 28 The elements of a claim for adverse possession were summarized in some detail by this Court in Cook. A more concisedescription is found in the earlier decision of Spicer v.

Bowater Mersey Paper Co., 2004 NSCA 39: [20] From this review of the authorities it is clear that the claimants of possessory title have the burden of proving with verypersuasive evidence that they had possession of the land in question for a full 20 years and that their possession was open, notorious,exclusive and continuous. They must also prove that their possession was inconsistent with the true owner's possession and that theiroccupation ousted the owner from its normal use of the land. As well, possession by a trespasser of

part is not possession of the whole.Every time the owner, or its employees or agents, stepped on the land, they were in actual possession. When the owner is in possession,the squatter is not in possession. [64] At paras. 35 – 36 he noted, as follows: 35 The trial judge found that the Roodes had established possessory title to a 50' x 102' parcel. This would have required "verypersuasive evidence that they had possession of the land in question for a full 20 years and that their possession was open, notorious,exclusive and continuous" (Spicer, supra, at para. 20).

The possession must also have extended to all portions of the land claimed. 36 With respect to the requirement for exclusivity the court in Pepper, supra said: [33] The critical issue is whether the Peppers' modifications to the disputed lands on Lot 4 effectively excluded Mr. Brooker frompossession of those parts of his property. Although the trial judge found that the Peppers intended to exclude "all others, including theowner Mr. Brooker", he failed to find that the Peppers had effectively excluded Mr. Brooker from the property.

There was no evidence tosupport the claim that they had effectively excluded him, nor anyone else for that matter. The evidence suggests the opposite. This isfatal to the Peppers' claim. [65] In the end our Court of Appeal found error because of the absence of a sufficient evidentiary basis to establish adversepossession of the land beyond a garden and shrubs. [66] A claimant of possessory title must establish 20 years of exclusive, continuous, open and notorious possession of the land. Themeaning of “open and notorious” possession was discussed in Spicer v.

Bowater Mersey Paper Co., 2004 NSCA 39: [23] While I have focused chiefly on the exclusivity issue, and it is not necessary to deal with the other elements of possession,nothing herein should be taken to confirm the finding by the trial judge that the limitation period in this case began to run in 1975 whenthe respondents first built the camp.

Although I do not agree with the appellant’s contention that the discoverability rules adopted incontract and tort cases should apply to adverse possession matters, the common law already has a built-in safeguard in these cases in therequirement of proof of “open and notorious” possession. The nature of the required acts would generally bring them to the attention of areasonably prudent owner. But the protection from undiscovered adverse claims lies in the nature of the required acts of adversepossession, not the so-called discoverability rule.

In a case like this, where the lands consist of a vast wilderness not accessible by road,the date the limitation period begins to run may not coincide with the time of the entry by the squatters. Although the cabin wasapparently known to other trespassers before 1981, it was not visible from the lake or in aerial photographs. It was when the road wasbuilt in 1981 that it became plainly open and notorious. I question whether there was proof by the claimants, by cogent evidence, that theappellants ought to have known of their entry on its land as early as 1975.

In my opinion, the evidence in that respect was, at best,dubious. [Emphasis added] [67] As noted in Spicer and reiterated in Johnston, claimants must prove that their possession was inconsistent with the true owner'spossession and that their occupation ousted the owner from its normal use of the land. The “inconsistent use requirement” was describedby the Ontario Court of Appeal in Masidon Investments Ltd. v. Ham, (1984) (ON CA), 45 O.R. (2d) 563, [1984] O.J.No. 3139 (Ont. C.A.), leave to appeal refused, [1984] S.C.C.A.

No. 232, as follows: 18 Recent decisions in this Court have established that not every use of land will amount to adverse possession excluding that of theowner. Madam Justice Wilson summarized the effect of these decisions in Fletcher v. Storoschuk et al., supra, at p. 724, as follows: ... acts relied on to constitute adverse possession must be considered relative to the nature of the land and in particular the use andenjoyment of it intended to be made by the owner: see Lord Advocate v. Lord Lovat (1880), 5 App. Cas. 273 at 288; Kirby v. Cowderoy, (UK JCPC), [1912] A.C. 599 at 603.

The mere fact that the defendants did various things on the ... land is not enoughto show adverse possession. The things they did must be inconsistent with the form of use and enjoyment the plaintiff intended to makeof it: see Leigh v. Jack (1879), 5 Ex. D. 264; St. Clair Beach Estates Ltd. v. MacDonald et al. (1974), (ON SC), 5 O.R.

(2d) 482, 50 D.L.R. (3d) 650; Keefer v. Arillotta (1976), (ON CA), 13 O.R. (2d) 680, 72 D.L.R. (3d) 182. Only thencan such acts be relied upon as evidencing the necessary "animus possidendi" vis-a-vis the owner. 19 Examples of the application of this principle are provided by several decisions of this and other courts. In Keefer v. Arillotta, supra,this Court held that use of an eight-foot strip of land lying between the properties of the parties for parking by the party having a right ofway over it did not deprive the other party, the legal owner, of his title.

The legal owner was still able to make such seasonal andoccasional use of the property as he wished. Speaking for the majority of the Court, Wilson J.A. stated at p. 691: The use an owner wants to make of his property may be a limited use and an intermittent or sporadic use. A possessory title cannot,however, be acquired against him by depriving him of uses of his property that he never intended or desired to make of it. The animuspossidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wantsto make of his property.

Wilson J.A. acknowledged that the person claiming possessory title had exceeded their rights but said at p. 691: The test is not whether the respondents exceeded their rights under the right of way but whether they precluded the owner from makingthe use of the property that he wanted to make of it: Re St. Clair Beach Estates Ltd. v. MacDonald et al. (1974), (ONSC), 5 O.R. (2d) 482, 50 D.L.R. (3d) 650. Acts relied on as dispossessing the true owner must be inconsistent with the form ofenjoyment of the property intended by the true owner.

This has been held to be the test for adverse possession since the leading case ofLeigh v. Jacks (1879), 5 Ex. D. 264. [68] After reviewing the case law, Blair J.A. concluded: 30 The obvious result of this and other cases I have cited has been stated in A Manual of The Law of Real Property, 4th ed. (1969),edited by P. V. Baker, in these words at p. 529: If the owner has little present use for the land, much may be done on it by others without demonstrating a possession inconsistent withthe owner's title ...

It may be wondered why the more limited the use made of land by its owner, the greater is the apparent protection from claims forpossessory title. The reason is plain. Whether possession is adverse depends in every case on the circumstances and particularly on theuse being made of the land by the owner. As Ormrod L.J. said in the Wallis case, supra, at p. 590: The same act or acts of trespass may be highly significant to the owner of a house and garden, yet utterly trivial to a property developeror an industrialist who has no immediate use for the land affected.

There is good sense in his conclusion on the same page that: This seems reasonable since the interests of justice are not served by encouraging litigation to restrain harmless activities merely topreserve legal rights, the enjoyment of which is, for good reason, being deferred. [69] The inconsistent use requirement has been consistently applied in Nova Scotia. In Pettipas v.

Hunter Noel Holdings, 2015 NSSC313, Boudreau J. wrote: [45] A claimant’s possession must be “adverse” to the true owner; that is to say, their use must be inconsistent with the owner’sintended use of the land (Bowater, supra, para. 20; Morrison v. Muise 2010 NSSC 163). In Anger and Honsberger at page 1515: Acts which do not interfere with and are not inconsistent with the owner’s enjoyment of the soil for the purposes for which he intendedto use it are not evidence of “dispossession” or “discontinuance of possession”.

Hence, merely fencing in land is not enough to give atrespasser title against the true owner. [46] In Fletcher v. Storoschuk (1981) (ON CA), 35 O.R. (2d) 722 (Ont. C.A.), at page 724: ...acts relied on to constitute adverse possession must be considered relative to the nature of the land and in particular the use andenjoyment of it intended to be made by the owner...The mere fact that the defendants did various things on the land is not enough toshow adverse possession.

The things they did must be inconsistent with the form of use and enjoyment the plaintiff intended to make ofit...Only then can such acts be relied upon as evidencing the necessary “animus possidendi” vis-à-vis the owner. [70] Justice Boudreau continued: [60] This principle has been called the "inconsistent use" test (Bussey v.

Mahar, 2006 NLCA 28); that is to say, is the use to which“the property is put by the adverse possession claimant is inconsistent with the owner's use or enjoyment of the property for the owner'sintended purposes” (Bussey, para. 50). … [62] In Masidon, supra, the respondent had purchased land with an eye towards developing it, but he was delayed. The propertystood vacant. A neighbour began using part of the land as a garden, and later claimed adverse possession of that part.

The Court held thathis use was not inconsistent with the owner's intention: which was to hold the land until it was used as an investment. [63] In other words, even apparent “non-use” by the owner, does not necessarily mean that the owner has no intended purpose forthe property.

[64] A claim for adverse possession cannot succeed where an owner is deprived of uses of his property that he never intended or desired ( Masidon , supra ; Rowe-Wilkinson v. Wright [2004] O.J. No. 5182 at para. 19 . In light of the owner’s intended or desired purpose, the actual uses being made by the claimant must be shown to be inconsistent. [65] An owner's use may be sufficient even if that use is only intermittent and sporadic ( Masidon , supra ; Rowe-Wilkinson , supra at para. 19), or "minimal" and "from time to time" ( Robertson v. Jones , [2003] O.J.

No. 3316 at para. 68 ). [Emphasis added] [ 71 ] These are the principles that apply to the applicants’ possessory claims. Disposition [ 72 ] Applying the well-established principles recently affirmed by Chief Justice Wood, I am of the resounding opinion that the Pitchers have fallen far short of satisfying me that there is anything near “very persuasive evidence” that they (and their predecessor in title, the Berrigans) had possession of the land in question for a full 20 years and that their possession was open, notorious, exclusive and continuous.

Nor have they shown that their use of the land was inconsistent with Merritt’s intended use. [ 73 ] First, I find that the Pitchers’ possession of the fire pit area on Finger 1 was not open and notorious. In this regard, I have found that Ms. Welton (then on behalf of Merritt) visited Merritt’s Subdivision land, inclusive of Finger 1, in the late spring of 2011. From her vantage point at the top of the adjacent road (the planned, built portion of Stonebroke Road), she did not see a fire pit area.

This is not surprising, given the contour of the land and the overwhelming evidence from various sources that Finger 1 (and the other three fingers) was not cleared. These sources include affiants from both sides and the photographic evidence described by Mr. Speight (even allowing for the imperfections in photogrammetry elicited through Mr. Speight’s answers to Mr. Fownes’ questions). Ms.

Welton’s evidence that she did not see a fire pit area is consistent with Kevin Fogarty’s evidence that it was not possible to see the fire pit unless you were on the shore or the lake, and with Adam Towhill’s testimony that the fire pit was not visible from Clearwater Drive.

In my view, considering the wooded, undeveloped nature of the land, the Pitchers’ possession of the fire pit area was not open and notorious such that Merritt ought to have been aware of it. [ 74 ] The Pitchers (and the applicants more generally) have also not proven that they effectively excluded Merritt from Finger 1 or from any other part of Merritt’s land. Through affidavit evidence the applicants attempted to establish that over the course of many years, entry to the subdivision was restricted to lot owners and their invitees. For example, at para. 7 of his affidavit filed June 6, 2019, Mr.

Flinn deposed: This exclusion of all but lot owners and their invited guests, tradesmen and workmen included Merritt Developments during all of the 23 years I have owned land there.

This includes the four lake right of ways, all as shown on the approved subdivision plans of 1978, 1979, and 1992, sometimes at least in part being shown as Drainage Easements, which cover areas with brooks and watercourses, which with development by excavating and roadbuilding has allowed silt to enter the lakes. [ 75 ] In their brief and through oral argument counsel for the applicants built on this evidence, fashioning this position: The Applicants rely on their possession of the road parcel including the corridors to the lake as part and parcel thereof, as being adverse once Merritt advised in 1993 that it was not participating any longer, and ceased coming to the land.

The gate, later gates were locked from 1984, but the possession did not become official until 1993; twenty-five years before Merritt took any interest in the road parcel or corridors to the lakes. Adverse possession is established is established when without violence, not clandestinely, and without permission [ nec vi, nec clam, nec precario ] of the true owner of a parcel of land, a party goes into such possession commensurate with the circumstances that s/he takes dominion, care and control of the land to the exclusion of the rights of the true owner.

Here the circumstances were that the designed and unbuilt road parcel was left fallow to a large degree and access to that unbuilt portion of Stonebroke Road was denied to Merritt through the placement of two gates. There was first one gate, then two that prevented access to the subdivision. Merritt did not have a key after the gates were installed on both Stonebroke Road and Clearwater Drive. No one from Merritt entered except if Judy Welton is believed, but for the one time when she visited the property for no particular purpose, and says she found the gate standing open.

Leaving a gate open is much the same as temporarily leaving your front door unlocked and ajar – likely to facilitate entry by a tradesperson or a guest who does not have a key, but is an invitee. [Applicants’ brief, p. 15] [ 76 ] Having considered all of the evidence, I must dismiss the applicants’ arguments. For one, the overall evidence (tested through cross-examination) established that the gates were routinely left unlocked and open. Indeed, this is the way Ms. Welton encountered the gates when she visited the Subdivision in the late spring of 2011 (as Mr. Fownes ultimately conceded).

I would add that she did have a particular purpose and that purpose is germane to the matters in issue. I find on the evidence that she was in the Subdivision, as she said, “to view the lands in the Subdivision registered in the name of Merritt”. Accordingly, she had with her a copy of the Nova Scotia Property Online mapping, inclusive of PID 60399227. [ 77 ] Ms. Welton was cross-examined on her affidavit filed July 16, 2019 .

She said that in 2010 she acquired the Merritt properties (which included the Subdivision) because she wanted to obtain a right-of-way next to her Tupper Lake, Kings County property. [ 78 ] Ms. Welton confirmed that she did not originally understand that the Subdivision was part of the transaction. When this was brought to her attention, she decided that she should go see the land. Ms. Welton said she knew Merritt had sold off the lots in the Subdivision but was “just curious… I wanted to see the land that belonged to me now”. Once again, Ms. Welton drove by car with her (late) common-law partner, Mr. Melanson.

[ 79 ] Ms. Welton had the Property Online map with her and the couple stopped in New Ross to obtain directions to the Subdivision. Once there, she said, they drove up and down the two de facto roads. She was not sure where the gates were located. Ms. Welton could not be sure whether the gates were wooden or metal, but recalled that they were open. She said that she did not see signage. Ms. Welton said there were cottages up in the areas by the lakes. She said they stopped and she got out of the car next to various wooded areas. Ms.

Welton said she could see the lake when looking down (from her vantage point in the car) at the top of cottage driveways. She recalled the leaves on the trees being present. [ 80 ] Having determined that the gates were routinely left unlocked and open, and that Ms.

Welton, on behalf of Merritt, visited the lands in 2011, I find that the applicants have not proven that they effectively excluded Merritt from its lands. [ 81 ] With respect to the inconsistent use requirement, as I will explain later, I find that when Merritt created the subdivision, it intended that the four fingers would serve as rights of way to the lakes. In other words, the corridors were intended to allow for the flow of traffic to the lakes. Prior to Mr. Welton’s arrival, there was never any intention that any structures, including cottages or RVs, would be built or placed on the 66’ wide fingers.

Accordingly, the Pitchers’ use of a small portion of Finger 1 did not preclude Merritt from making the use of the land that it wanted to make of it. [ 82 ] In all of the circumstances, I find that the applicants have failed to meet their onus as outlined in the leading cases from the Nova Scotia Court of Appeal. In particular, the Pitchers have not demonstrated on very persuasive evidence that they (and the Berrigans before them) have had possession of the claimed triangular portion of land inclusive of the of the fire pit area (per Mr.

Fogarty’s sketch) for a full 20 years and that their possession was open and notorious. Nor have the Pitchers shown that they effectively excluded Merritt from the land. To the contrary, I have determined that Merritt visited the property in 2011. Finally, the Pitchers have not shown that their use of Finger 1 was inconsistent with Merritt’s intended use of the land.

Through the doctrine of ouster and adverse possession do the applicants have ownership of portions of PID 60399227 encompassing the planned Stonebroke Road? [ 83 ] For much of the same reasons as outlined in the previous section, I find that none of the applicants have ownership of the planned Stonebroke Road. As noted in Podgorski v. Cook , 2013 NSCA 47 (cited in Johnston at para. 25) at para. 49, adverse possession requires that the claimant’s possession of the land in dispute be “adverse” to that of the true owner.

This means that the claimant’s acts of possession must be inconsistent with the true owner’s intended use of the land. Even if the lands remain vacant, the presumption is that the true owner is in possession. [ 84 ] The respondents acknowledge that the applicants – along with all lot owners in the Subdivision – have a ROW over the planned Stonebroke Road shown on the 1979 Masland Plan. Indeed, this ROW is expressly stated on both the 1979 Masland Plan and the 1978 Masland Plan, as well in the deeds of the applicants in evidence.

Accordingly, the use of the ROW by the applicants does not give them possession, adverse or otherwise, over Merritt’s land. [ 85 ] The distinction between the use of a ROW and the possession of the land over which the ROW travels is referenced by Justice Coughlan in PATCO Developments Ltd. v. 3195972 Nova Scotia Ltd., 2016 NSSC 9 at para. 32 , quoting from Anger & Honsberger : 32 In Anger & Honsberger Law of Real Property , 3rd ed. (Canada Law Book, looseleaf), a right of way is defined at s.17:20.30(a): s.17:20.30(

a) Right-of-Way A public right which is open to and enjoyed of common right by all members of the public as, for example, a highway, is not an easement. A private right-of-way is an easement which permits the owner of the dominant tenement to pass over some defined portion of the servient tenement in order to gain access to or egress from the dominant tenement for some purpose connected with the better enjoyment of the dominant tenement. A right-of-way is an easement only and must be distinguished from the fee simple in the land over which the right is exercised.

The owner of the servient land may exercise all other rights of ownership not inconsistent with the right-of-way and may exclude those not entitled to the easement. A right-of-way may be created by any of the methods described previously. The nature and extent of a right-of-way created by an express grant depends on the proper construction of the language of the instrument creating it. The following rules apply in interpreting the instrument: 1.

The grant must be constructed in the light of the situation of the property and the surrounding circumstances, in order to ascertain and give effect to the intention of the parties.

(2) If the language of a grant is clear and free from doubt, such language is not the subject of

interpretation, and no resort to extrinsic facts and circumstances may be made to modify the clear terms of the grant.

(3) The past behaviour of the parties in connection with the use of the right of way may be regarded as a practical construction of the use of the way.

(4) In case of doubt, construction should be in favour of the grantee. [Emphasis added] [ 86 ] The 1979 Masland Plan and the applicants’ deeds confirm that Merritt gave the applicants a ROW over both the built and unbuilt portions of the planned Stonebroke Road. Accordingly, their use of the ROW has been with Merritt’s consent. [ 87 ] In my view, the applicants have conflated adverse possession of Merritt’s land with the barring of Merritt’s entry to the Subdivision.

In Anger & Honsberger Law of Real Property , (2 nd Ed.) at s. 31068, the authors address this issue: In order that the statute may operate so as to require the owner of an estate to make an entry or distress or bring an action to recover land or rent, there must be someone in possession keeping him out of possession . This may occur by dispossession or discontinuance of possession. Dispossession occurs where a person comes in and puts another out of possession; discontinuance of possession occurs

where the person in possession goes out and another person takes possession. There is no difference between discontinuance and dispossession. In either case there must be someone else in possession . [Emphasis added] [ 88 ] Possession of the disputed land by the trespasser to the exclusion of the true owner is key to a finding of adverse possession. In Spicer , supra, at para. 15 , Justice Roscoe quotes from Gray v. Richford (1878), 1878 CanLII 4 (SCC) , 2 SCR 431, in which Strong J. quoting from Baron Parke in Smith v.

Lloyd (1854), 9 Ex. 562 , states: There must be both absence of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected, to bring the case within the Statute. [Emphasis added] [ 89 ] Simply preventing Merritt’s entry to the Subdivision is not the same as the applicants actually having been in possession of Merritt’s land.

When I review all of the evidence on the applications I find a complete lack of evidence of any acts of possession, whether adverse or otherwise, of the planned Stonebroke Road. [ 90 ] Although the applicants spoke in their affidavits of the CHHA’s repair and maintenance of the roads in the Subdivision, the right to repair and maintain a ROW is ancillary to the grant of ROW. This is made clear in Romkey v.

Osborne , 2019 NSSC 56 (see paras. 129 - 137). [ 91 ] In any event, the evidence does not establish that the applicants have had possession of the planned Stonebroke Road continuously for the full statutory 20 years. In this regard, in Morrison v. Muise , 2010 NSSC 163 , Justice Edwards notes at para. 15: 15 In order to trigger the operation of the Limitation of Actions Act , R.S.N.S. 1989, c. 258 , the person claiming adverse possession must establish all of the elements of possession, as well as the commencement date for said acts.

MacIntosh, in Nova Scotia Real Property Practice Manual , writes at page 7-7: In order to succeed under the Statute, a party claiming a possessory interest must be able to establish a commencement date for his or her acts of physical possession, so that the limitation period may be computed . [Emphasis added] [ 92 ] By the applicants’ own evidence, not only did Merritt have a key to the then existing swing gate until 1993, but it was also up until that time a member of the CHHA, making its annual contribution to the cost of maintaining and repairing the roads, including the built portion of the planned Stonebroke Road.

Assuming that all of the other requisite elements of adverse possession existed at the time (which have not been established by the applicants), the earliest that the 20 year limitation clock would have started to run would have been in 1993. If one uses the earliest date in 1993 – January 1, 1993 – as the date on which the limitation clock started to run, the full 20 year statutory period would have expired on December 31, 2012. Given the evidence, I have found that the limitation clock was stopped and re-set the moment Ms. Welton entered the Subdivision on her visit in the spring of 2011.

During this visit, she and Mr. Melanson drove over all of the roads in the Subdivision. Accordingly, the applicants have failed to satisfy the requisite continuous 20 years. Through the doctrine of ouster and adverse possession do the applicants have ownership of portions of the de facto roads? [ 93 ] With respect to the de facto Stonebroke Road and Clearwater Drive, the 1979 Masland Plan (exhibit 3) confirms these roads run over a number of lots in the Subdivision, none of which are owned by Merritt. Exhibit 3 is consistent with all of the evidence received in the applications.

That is to say, no portions of the de facto roads are on land owned by Merritt. Accordingly, I am of the opinion that this aspect of the applicants’ claim is not properly before the Court. In any event, given the evidence marshalled on these applications, I am of the view that the claim has no basis in law and/or fact and must therefor be dismissed. What is the nature of the four fingers, and are the respondents entitled to develop them as an RV park? [ 94 ] The next questions pertain to Finger 1 and the other three fingers or corridors.

The applicants take the position that the corridors are part of the overall road parcel, “also containing several easements for drainage of the Subdivision and presumably (though not expressly) for access to the lake(

s) for purposes ancillary to their lots”. During cross-examination, Michael Welton took the position that each of the fingers constitutes a separate “lot”. However, during closing submissions, Mr. Dexter, on behalf of Merritt and Mr. Welton, stated that the planned Stonebroke Road and the four f

[…]