Podgorski v. Cook, 2012 NSSC 174

SUPREME COURT OF NOVA SCOTIA Citation: Podgorski v. Cook, 2012 NSSC 174 Date: 20120502 Docket: BWT 334600 Registry: Bridgewater Between: Mary-Ann Podgorski Applicant - and - James D.

Cook Respondent __________________________________________________________________ DECISION __________________________________________________________________ Judge: The Honourable Justice Kevin Coady Heard: January 30 - February 2, 2012, in Bridgewater, NS Decision: May 2, 2012 Counsel: John DiCostanzo, for the applicant Katherine Dumke, for the respondent By the Court : [ 1 ] This proceeding comes before the Court as an Application in Chambers pursuant to Civil Procedure Rule 5.03. Ms.

Podgorski frames her claim as follows: The Applicant is applying to a Judge in Chambers for an order establishing the property line between the properties known as 220 North Side Road, Riverport, Lunenburg County, Province of Nova Scotia and 213 North Side Road, Riverport aforesaid to be the line as more particularly shown in a survey plan prepared by Barrigan Survey’s Limited dated the 23 rd day of December 2009. Damages, expenses incurred as a result of the Respondent’s actions and costs. She stated her grounds for this relief as follows:

1. The Respondent has continuously trespassed on the Applicant’s property known as 220 North Side Road, Riverport, Lunenburg from the Spring of 2008 to the present time by placing his personal property and junk and removing vegetation from the Applicant’s property and taking possession of the same without the consent of the Applicant. 2. The Respondent has staked a new property line between the Applicant and Respondent’s property which is not supported in law. [ 2 ] The Respondent Mr. Cook filed a Notice of Contest denying the grounds for the order sought by Ms. Podgorski.

He framed his grounds of contest as follows: The Respondent says that your application should not be allowed or in the alternative, if allowed, then only to the extent and that the property line between the properties be established between the properties of the Applicant and Respondent in accordance with the boundaries shown on the plan of survey of Robert Becker, Land Surveyor of ABLE Engineering Ltd., to be filed in this matter, and dismiss your application in respect to ownership of the whole lot, damages and expenses as claimed because: He then lists several factors that he feels support his grounds for objecting to the relief sought in Ms.

Podgorski ’ s notice. Fundamentally Mr. Cook challenges Ms. Podgorski ’ s view of the location of the property line. In the alternative he argues that he has possessory title to the disputed area. BACKGROUND: [ 3 ] The parties are adjacent neighbours in the community of Riverport, Lunenburg County, Nova Scotia. Both properties extend from the shore of Ritcey Cove North across highway 442. Ms. Podgorski ’ s residence is located on the upper side of the highway. Mr. Cook ’ s residence is located below the highway. The disputed area is directly below the highway in front of Ms.

Podgorski ’ s residence and to the east of Mr. Cook ’ s residence. The area below Ms. Podgorski ’ s residence is quite swampy and covered with bushes. [ 4 ] Mr. Cook ’ s family has resided on their property since his grandfather acquired two lots in 1906 and 1918. The present residence lot was deeded to Mr. Cook by his mother in 1977. Ms. Podgorski purchased her property in 2007. The evidence satisfies me that prior to 2007 there was no overt conflict between neighbours concerning the location of their mutual property line.

I suspect that given the condition of the area below the “ Podgorski ” residence, historically it was not considered as valuable as the area above the highway. The opposite can be said about the Cook property. I find that when Ms. Podgorski bought her property she felt that the disputed area was on her side of the property line. I also find that she viewed the area below the road as more valuable than her predecessors in title. [ 5 ] Ms. Podgorski moved to Riverport from Calgary and, no doubt, was looking for a more pastoral setting. Mr. Cook ’ s property has a decidedly industrial flavour. Ms.

Podgorski claims that in 2008 Mr. Cook began to move tires, barrels and building materials onto her side of the property line without her consent. She also claims that he moved a shed onto an infill area on her side of the line. She reports complaining and being told that these items were on Mr. Cook ’ s side of the line. [ 6 ] This conflict motivated Ms. Podgorski to retain the services of Berrigan Surveyors Limited to conduct a survey of her property and to make a determination of the disputed property line. It was Mr. Berrigan ’ s conclusion that the line was consistent with Ms. Podgorski ’ s position.

In the face of this survey, Mr. Cook retained Robert Becker NSLS to do another survey. That survey was more supportive of Mr. Cook ’ s position. I will address the surveys further along in this decision. ISSUES: [ 7 ] The following issues are to be decided in this application: ⋅ Whether the survey evidence resolves the location of the property line.

⋅ Whether Mr. Cook has possessory title to the disputed area. ⋅ If the line is found to be where Ms. Podgorski claims, should she be entitled to damages? THE SURVEY EVIDENCE: [ 8 ] Ms. Podgorski called Peter A. Berrigan as an expert witness. The Court qualified him to give opinion evidence as a land surveyor and permitted him to express an opinion on the location of the disputed property line. [ 9 ] I found Mr. Berrigan to be an extremely competent and thorough surveyor. He had no prior history with the parties and had not been to the property before he conducted the field work for his 2009 survey.

I am satisfied that he amassed all of the relevant records required to carry out his task. I note that he accessed documentation associated with five adjacent parcels of land. In his testimony he created Exhibit #13 which clearly delineated the competing claims. It was obvious to the Court that this dispute did not involve a few feet. Mr. Cook ’ s claim would capture almost one half of the area across the highway from Ms. Podgorski ’ s residence. [ 10 ] Mr. Berrigan testified that he started his field work by locating established Nova Scotia coordinate monuments.

These are monuments that contribute to a provincial mapping system and they are used as a starting point when searching for private survey markers or other such evidence. Mr. Berrigan located provincial marker 16755 (see Exhibit #13) approximately 4000 feet from Mr. Cook ’ s property. He was then able to use a global positioning system to locate three monuments set by earlier surveys of the Cook property. Using established legal descriptions he was able to locate markers on three corners of the disputed area. [ 11 ] Mr.

Berrigan ’ s research material indicated that there should be a fourth marker ( “ B ” in Exhibit #13). He was unable to locate that marker and felt it had been buried or disturbed by the infilling of the area. Mr. Berrigan replaced that marker with full confidence that it was in the same spot as indicated in survey notes compiled in 1983. He testified that he was able to locate the four corners of the area based solely on survey principles rather than other things on the ground such as trees and posts. [ 12 ] The legal description of Mr.

Cook ’ s property indicates a lot roughly 100 feet by 200 feet bordered between the highway and the waters of Ritcey Cove. It also indicates that it is located on the eastern side of a lot formerly owned by his mother and now owned by his brother. Mr. Berrigan ’ s survey confirms these dimensions and location. [ 13 ] It is also confirmatory that Mr. Berrigan ’ s “ A ” to “ B ” line (see Exhibit #13) is parallel with other property lines in the neighbourhood. It is also in line with the property line of the Podgorski property above the highway. Both of these factors give me confidence in the accuracy of Mr.

Berrigan ’ s survey. [ 14 ] Mr. Berrigan filed an expert report in these proceedings. It is noteworthy that he states at page 4: “At the time of our field survey in 2009 there was no occupation of mowed lawn or physical evidence to indicate that James Cook was occupying any of the Podgorski lands. The Mary Ann Podgorski lands consisted of tall grass and low bushes and no clear indication of occupation by James Cook.”

Mr. Berrigan further states at page 5 of his report: “James Cook is claiming additional land by an adverse claim. James Cook has 102+ feet along the public highway which is 2 feet + more than what his property deed calls for in its description. James Cook is claiming a land parcel approximately 60 feet in width running parallel to other property boundaries however there is no description in James Cook’s favour to claim for this land strip as the land has been conveyed through title to Mary Ann Podgorski.” [ 15 ] Mr. Cook called Robert Becker as an expert witness.

The Court qualified him to give opinion evidence as a land surveyor and permitted him to express an opinion on locating property lines and the

interpretation of real property documentation. [ 16 ] Mr. Becker testified that he does not challenge Mr. Berrigan ’ s lines. He stated that his property line is based on evidence of occupation provided to him by Mr. Cook. Mr. Becker filed an expert report and stated at page 5: “There was no physical ground evidence remaining of the Podgorski/Cook boundary at the time of my survey, it being nearly 2 years after the survey done by Berrigan. Worthy of note is the fence post plotted on the Berrigan plan, on the Podgorski lot, near Ritcey Cove.

This appears to be in the same position as that of an iron bar found during my survey, and noted on my survey plan. This marks the limit of an area mowed by James Cook. The occupation by James Cook, as evidenced by mowing and brush clearing, and by a drainage ditch, is apparent, and as shown on aerial photography, has been apparent for a considerable period of time.” It is noteworthy that the broken line titled “ edge of mowed area ” in Mr. Becker ’ s 2011 survey comes nowhere near Mr. Cook ’ s position on the property line. [ 17 ] Mr. Becker relies on three factors to support his evidence of occupation.

One is evidence of an old drain/ditch across the highway from the Podgorski residence. The second is the location of the Cook driveway. The third is the occupation evidence provided to him by the Cook family. [ 18 ] Mr. Becker relies on two 1918 deeds in which it appears that Ms. Podgorski ’ s predecessor in title granted Mr.

Cook ’ s predecessor in title the right “ to extend your drainpipe from where it now ends to the shore by digging a drain and laying pipe whenever requested to do so by the owner of the property to the south. ” I am not satisfied that the “ centre of ditch ” shown in his survey is the same ditch referred to above. [ 19 ] I have considered Mr. Becker ’ s evidence concerning the Cook driveway and found it to be confusing and uncertain. In his report he states: “In the description in the Deed from Annie Morlean Cook to James D.W.L.

Cook, dated October 18 th , 1977, recorded in Book 244, Page 307, and in 3 subsequent Deeds, there is reference to a driveway crossing the Northeastern corner of the lot. On my Plan of Survey dated January 21 st , 2011, the short

section of driveway lying in a Northwest and Southeast direction is the driveway referred to. If it was indeed on the corner of the lot conveyed, this would mean that the lot could conceivably lie 50 to 60 feet to the West, and still fulfill that condition.” I find this conclusion to be speculative and not supported by the evidence. [ 20 ] I conclude that Mr. Becker ’ s evidence does nothing to support Mr. Cook ’ s claim of possessory title to approximately one half of the disputed land. Any support for that claim will have to come from the lay witnesses. THE LAW OF ADVERSE POSSESSION:

[ 21 ] I have found as a fact that Ms. Podgorski has legal title to the area to the east of the property line struck by Mr. Berrigan in his 2009 survey ( “ A ” to “ B ” - Exhibit #13). It is established law that when a party has legal title to their property, the onus is on a party claiming adverse possession to put forth sufficient facts that the true owner has been dispossessed. [ 22 ] The case of Lynch v. Nova Scotia (Attorney General) , [1985] N.S.J. No. 456 sets forth the general principles respecting adverse possession.

Justice Hallett described the principles as follows: There are certain basic principles that must be applied where a party seeks to establish a possessory title against co-tenants. The holder of the legal estate in land is deemed to be in possession until he is dispossessed by another going into possession. The title of the holder of the legal estate is not extinguished until the expiration of twenty years from the time the person claiming the possessory title first went into possession; if the holder of the legal title is outside the province, the period is forty years.

It is a question of fact whether a party claiming possessory title has exercised acts of possession with respect to the lands of a kind sufficient to extinguish the title of the legal owner. The acts of possession relied upon must be such that they constitute proof that the possession was actual, continuous, open, notorious, visible, exclusive and adverse for the statutory period, be it twenty or forty years. These words are not an idle litany but describe in detail the nature of the possession that can ripen into a possessory title.

The burden of proof is on the person seeking to extinguish the title of the legal owner to prove acts of possession that are capable of extinguishing title considering the nature of the lands and other circumstances. ... The legal concept which allows a person to acquire possessory title good against the holder of the legal title 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.

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 wood land, 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.

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

It cannot be too strongly emphasized that evidence of possession to extinguish title must be of a quality that has been required by the Courts for hundreds of years. Each case turns on its own facts. [ 23 ] The Nova Scotia Court of Appeal in Spicer v. Bowater Mersey Paper Co. , 2004 NSCA 39 discussed adverse possession and acts of mere trespass. Roscoe J.A. stated at paragraph 18: In all the provinces the law is well settled that acts of trespass cannot amount to what the law requires to give title under the statute of limitations, that is, the ouster of the true owner.

An act of trespass in going on the property amounts to a disseisin for a time, but it is not an ouster; what the law requires is an ouster of the owner for twenty years. Numerous acts of trespass only amount to so many acts of disseisin; when a man trespasses on the land the true owner ceases to have full possession for the time being; but the moment the

trespass is at an end the trespasser’s disseisin is at an end and the complete possession is again in the actual owner. It is therefore required that the party should not only take possession, not only disseise the owner, but that he should continue that dissiesin so as to amount to an ouster, and that ouster maintained for the statutory period. That can only be done by some act of possession not merely by a temporary disseisin, and it must be over every inch of the land of which the party claims possession. [ 24 ] The Nova Scotia Court of Appeal in Fralick v. Dauphinee , [2003] N.S.J.

No. 434 found that evidence relating to playing, grass cutting, gardening and picnicing was not sufficient to dispossess the legal owner. Oland, J.A. stated at paragraph 46: [46] When the evidence pertaining to parking, the trailer and the picnic tables are excluded, the acts of possession by the respondent which remain relate to playing, the worm bed and grass cutting.

In my view, having in mind the nature of this particular property, the totality of this evidence does not constitute the “very cogent evidence that proves that the person’s possession has been visible, exclusive and continuous possession for the required statutory period” required according to Lynch , supra for a claim for possessory title to extinguish the title of a legal owner. Essentially this decision establishes that mere trespass will not oust the legal owner. Ousting requires acts that are continuous and constant. THE EVIDENCE OF ADVERSE POSSESSION: JAMES D. COOK: [ 25 ] The respondent Mr.

Cook testified that in 1949 his father established a garden that was approximately 40' x 80' and located approximately 15'-20' short of Robert Becker ’ s eastern line. He testified that for many years they burned the eastern portion of their property as shown in the Becker survey. He also stated that over the years they ditched an area to avoid surface water running into the garden. He testified that the ditch is shown on the Becker survey as “ centre of ditch. ” [ 26 ] Mr. Cook also testified that since 1985 the family held an annual July 1 st party on the disputed area.

He stated that over the years his children played in that area. He claims that no one challenged his occupation until Ms. Podgorski acquired the property. Mr. Cook ’ s affidavit asserts that he paid the taxes on the disputed area but I have not seen any evidence to support that statement. ANTHONY COOK: [ 27 ] Anthony Cook is the son of James Cook. He has lived on his fathers ’ property since he was born in 1972. He testified that as a child he spent a lot of time playing on the disputed area. In later years he stored cars and boats and he helped his brother burn brush on the area. JOHN D.

COOK: [ 28 ] John Cook is the brother of James Cook. He lived on the Cook property from 1949 until 1971. He testified that his parents had three gardens and one was on the disputed area. He testified that he and his brother burned brush on the disputed area over the years.

MARY ANN BENNETT: [ 29 ] Ms. Bennett is a resident of Riverport and a neighbour of James Cook. She recalled, as a young girl, the garden. In her affidavit she stated “ I remember that the northwestern corner of the garden was only feet away from what is shown as the western boundary line as shown of the plan of survey by Robert Decker ” . She also recalled Donald Cook storing car parts and old vehicles on the western side of the driveway. She recalled the Cook ’ s burning brush on the disputed area. THE AERIAL PHOTOGRAPHY: [ 30 ] Mr.

Becker ’ s expert report contained aerial photographs of the area in 1965, 1971, 1976, 1986. 1992 and 2001. These photographs were enlarged and marked as exhibits in this application. Mr. Berrigan testified that when he did his survey in 2009 he saw no evidence of occupation by Mr. Cook. When I apply Mr. Berrigan ’ s line to each aerial photograph I cannot observe any evidence of occupation. There is clearly no evidence in the 1965, 1971, 1976, 1986 and 1992 photographs save from the mowing of some grass in the 1976, 1986 and the 1992 photographs. In the 2001 photograph two boats are located just over the line.

KEVIN ROSE: [ 31 ] Mr. Rose is a predecessor in title to the Podgorski property and he lived there from1983 until 2003. He testified that shortly after purchasing the property he retained Lester Berrigan NSLS to do a survey of the shore lot. A review of his notes and sketches satisfies me that he came to the same conclusion as Peter Berrigan did in 2009 with respect to the property line. [ 32 ] Mr. Rose testified that during his ownership he used the shore lot for a variety of purposes. He stated that in 1984 he gave Mr.

Cook permission to mow a triangular piece of the shore lot adjacent to his property about 10 feet in width at the street line. He also said that in 1997 Mr. Cook asked if he could store his boat on the mowed area of the shore lot and he permitted Mr. Cook to store the boat as requested. [ 33 ] Much of Mr. Rose ’ s affidavit evidence is challenged in a supplementary affidavit filed by Mr. Cook. I found Mr. Rose to be a forthright and honest witness. I found nothing to suggest animus towards Mr. Cook either when they were neighbours or presently.

ADVERSE POSSESSION ANALYSIS: [ 34 ] The issue in this application is whether Mr. Cook ’ s evidence establishes a type of possession that started the twenty year clock running. The general rule is that the possession must be “ actual, constant, open, visible and notorious. ” Mere equivocal, occasional or temporary possession is not sufficient. C.W.

MacIntosh in Nova Scotia Real Property Practice Manual references the following definition: Possession may be roughly defined as the actual exercise of rights incidental to ownership as such, that is, the person who claims to be in possession must exercise these rights with the intention of possessing. Where a man acts toward land as an owner would act, he possesses it. The visible signs of possession must vary with the different circumstances and physical conditions of the property possessed.

Mr. MacIntosh further states: The present statement of the requirements is that “possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any of these elements is missing at any time during the statutory period, the claim for possessory title will fail. Isolated and sporadic acts of trespass do not constitute open, visible and continuous occupation so as to establish possessory title. In Deadder v.

North Kent Development it was found that the occasional pasturing of a horse on the land, the cutting of hay on portions of the land at certain times of the year, keeping pigs in a pigpen on the land, cutting a few dead apple trees and ploughing a small portion of the land on one occasion did not constitute possession . . . Isolated acts of berry picking, cutting wood and children playing are not sufficient to constitute acts of possession. [ 35 ] In the case of Behie v.

Carrigan (2011), NSSC 171 Duncan J. discussed a number of principles that have application to this case: ⋅ The title holder is presumed to be in possession of the land. ⋅ If any of the essential elements are missing at any time during the statutory period, the claim fails. ⋅ Presumptions favour the true owner [ 36 ] Whether or not activities are sufficient to support a claim for adverse possession are findings of fact. [ 37 ] The garden referred to in the Cook ’ s evidence is vague as to its location. I find that Mr. Cook has not established, on a balance of probabilities, the location of the garden.

I cannot conclude that the area where tractors turned around extended beyond Mr. Berrigan ’ s line. Further, the evidence is uncertain as to when the garden existed or for how many years. The evidence of recreational use is not sufficient to oust the title of Ms. Podgorski. The evidence of burning brush suffers from the same deficiency. I am also of the same view in relation to the parking of vehicles and boats on the disputed area. This is not the kind of evidence needed to support a claim based on adverse possession. In conclusion, I find that Mr. Cook has failed to establish possessory title. [ 38 ] Ms.

Podgorski ’ s property is as surveyed by Peter Berrigan. Her paper title has not been displaced by Mr. Cook ’ s evidence of possessory title. DAMAGES: [ 39 ] In Ms. Podgorski ’ s application she requested “ damages, expenses incurred as a result of the respondent ’ s actions and costs. ” She filed a supplementary affidavit in support of damages. Neil Snyder, a real estate agent, also filed an affidavit respecting the marketability of Ms. Podgorski ’ s property. [ 40 ] Ms. Podgorski moved to Halifax in 2009 and testified that she wished to sell the property at that time.

She indicated that she listed the property in May, 2010 for $219,500. In July 2010 she reduced the price to $206,000 and later to $199,900. She has not attracted an offer and she feels this is as a result of the problems caused by Mr. Cook. She seeks the costs of maintaining the mortgage and the property since she vacated. She seeks $22,849 to January, 2012. Essentially Ms. Podgorski wishes to recover the entire cost of owning the property over this period of time. [ 41 ] There are a number of problems with Ms. Podgorski ’ s claim.

There is no evidence as to whether the property has increased or decreased in value since 2009. I have no hard evidence that the lack of a sale is the result of Mr. Cook ’ s actions. The photography evidence satisfies me that many of the things she described existed before she bought this property. I do not find that the trespass she

experienced was so significant as to have the impact on value that she claims. [ 42 ] If the conflict with Mr. Cook is a deterrent to selling, this decision removes that problem. CONCLUSION: [ 43 ] I decline to award damages. I will accept written submissions on costs should the parties be unable to agree. J.