Atlantic Developments Inc. v. Fowler, 2013 NLCA 58

Date: 20130930 Docket: 12/100 Citation: Atlantic Developments Inc. v. Fowler , 2013 NLCA 58 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ATLANTIC DEVELOPMENTS INC. APPELLANT AND : HARRISON FOWLER, HARRY FOWLER, LEONARD FOWLER, MARGARET FOWLER, KELLY FOWLER, JEFFREY FOWLER, JODY FOWLER, TINA FOWLER, CONNIE FOWLER, ANDREA YETMAN AND DANIELLE FOWLER RESPONDENTS Coram: Welsh, Barry and Hoegg JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201101G2973 Appeal Heard: June 13 and September 19, 2013 Judgment Rendered: September 30, 2013 Reasons for Judgment by Welsh J.A. Concurred in by Barry and Hoegg JJ.A. Counsel for the Appellant: David R. Power

Counsel for the Respondent: Sheri H. Wicks Welsh J.A.: [ 1 ] This is an appeal against an order that the legal and beneficial owners in fee simple of parcels of land originally owned by the late Edward Fowler are entitled to Quieting of Titles Certificates. Atlantic Developments Inc., which purchased one of the parcels, appeals on the basis that the trial judge erred in refusing to recognize its claim for an interest in the property either by means of an undivided one-sixth interest in the entire property or a right of way easement to the parcel it had purchased.

BACKGROUND [ 2 ] The trial judge outlined the history of the property in detail ( 2012 NLTD(G) 177, 330 Nfld. & P.E.I.R. 338 ). Briefly, by Crown grant dated June 27, 1902, the first Edward Fowler was granted approximately thirty acres of land, approximately twelve acres of which devolved to the third Edward Fowler (the “Property”). Over the years, some parts of the western portion of the Property were used for agricultural purposes, such as growing potatoes and pasturing livestock, and for wood.

The Property was accessed from the western boundary. [ 3 ] After the death of the third Edward Fowler in 1987 and his wife in 1990, the Property passed to six of their sons. The brothers treated the Property as divided into six parcels which they held initially as joint tenants. The parcels are roughly rectangular in shape and situated one beside the other in an east-west alignment. Four of the parcels are bounded on the east and west by brothers’ parcels and on the north and south by properties owned by other persons.

The parcel located at the east end of the Property is bounded on the west by a brother’s parcel and on the north and south by property owned by others. To the east it appears that there is a narrow strip of Crown land that abuts a residential subdivision. The parcel located at the west end of the Property (Harrison’

s) is bounded on the north and south by properties owned by other persons, by a brother’s parcel on the east, and by a “gully path” and brook on the west. The three parcels located farthest east on the Property were not used. [ 4 ] In 2008, Atlantic Developments, a corporation engaged in the business of developing subdivisions, entered into an agreement of purchase and sale for five of the parcels. That agreement was superseded by an agreement in 2009. Annie Fowler, who had the fourth parcel to the east of the gully path, refused to participate in that agreement.

Nonetheless, she received an undertaking from Atlantic Developments that her parcel would be given a right of way over the three parcels to the west of hers. However, the sale was never completed. The trial judge explained: [35] … This sale transaction between the five brothers and [Atlantic Developments] ultimately fell through. [Atlantic Developments] thereafter commenced litigation against the Fowlers, unsuccessfully claiming specific performance of the Agreement of Purchase and Sale. The Fowlers have agreed to sell this land to a third party.

In the meantime, on November 30, 2010, Atlantic Developments purchased Annie’s parcel without addressing the question of an easement for access to that parcel. (For convenience, I will refer to the respondents to this appeal, the owners of the other five parcels, as “the Fowlers”.) [ 5 ] The Property, which has not been used in recent years, was accessed on foot or by horse and cart either via the gully path, which runs parallel to the western boundary of the Property, or by the Valleyview path running perpendicular to and crossing over the gully path and intersecting with the western boundary at about the mid-point.

Insofar as the brothers other than Harrison wished to access their property, this was done by crossing over the parcels situated nearer to the gully path. The trial judge explained: [46] The Gully Path ended with the boundary of Harrison Fowler’s property and he stated that it “zigzagged around the hills”. Photographs of the Gully Path and the older Valleyview Path reveal a rough and unkempt terrain, in places very narrow and rocky. Areas in the photographs which were meadow lands were described by Harrison Fowler as areas which had previously been used to grow crops.

Two photographs show the old path section, the Valleyview Path, which was used to access the gardens maintained by his father. Harrison Fowler said that his father sometimes used the Gully Path in the winter and made improvements, but most of the time he used the Valleyview Path. … [48] The Fowler family has not used the property for about twenty years and trees have grown back on the Gully Path and Valleyview Path.

When asked about visible track marks apparent on the paths in some of the photographs submitted to the Court, Harrison Fowler replied that they must have come from “dirt bikes”, as they were not made by members of his family. [ 6 ] The trial judge concluded: [57] I am satisfied on a balance of probabilities that [the Fowlers] have established entitlement to the ownership of the Fowler Property, leaving for adjudication only the question of whether [Atlantic Developments] has established an interest in the property. … [60] … The fact that Edward (3d) accessed his property by means of a path he maintained on a river reservation and Crown lands does not alter the fact that it was not used by the public as a footpath to cross over the Fowler Property. … [64] There was no evidence presented to the Court to demonstrate that David Fowler or his family used a right of way to their property [the parcel purchased by Atlantic Developments] over the course of twenty years or at all.

In fact, Harrison Fowler testified that David Fowler did not even use his property. This evidence was not contradicted by [Atlantic Developments] and it was conceded that a prescriptive easement did not arise. …

[ 7 ] The trial judge determined that the evidence did not support Atlantic Developments’ position, which she described as “not credible”, that it had purchased a one-sixth interest in the Property. In denying Atlantic Developments’ application, the judge commented: [96] When the dedicated attempts to purchase the property from all family members failed, [Atlantic Developments] was nonetheless prepared to purchase two acres only, fully aware of the title problems.

While Annie Fowler could have been tasked to provide documentary confirmation of a right of way to her husband’s property as a pre-condition of the sale, [Atlantic Developments] chose instead not to require this assurance of title and proceeded to conclude the transaction without it. [Atlantic Developments] cannot establish a right of way ‘by necessity’ to access land never used or occupied. [Atlantic Developments] introduced no evidence, not even from representatives of [Annie Fowler], to assist in the understanding of what, if anything had been represented to it about the existence of a right of way. [ 8 ] In the result, the trial judge ordered that the Fowlers were entitled to quieting of titles certificates and dismissed Atlantic Developments’ claim to an interest in the Property or to a right of way easement.

ISSUES [ 9 ] At issue is whether the trial judge erred in concluding that:

(1) Atlantic Developments did not have a one-sixth interest in the Property; or

(2) A right of way easement to the parcel purchased by Atlantic Developments had not been established. ANALYSIS A One-sixth Interest in the Property [ 10 ] Atlantic Developments submits that the trial judge erred in determining that the Property had been partitioned into six parcels severing the joint tenancy and that, consequently, Atlantic Developments had not purchased a one-sixth interest in the Property. [ 11 ] In determining that the Property had been partitioned into separate parcels, the trial judge relied, among other things, on the deed of conveyance from Annie Fowler to Atlantic Developments.

The conveyance makes no mention of a one-sixth interest in the larger Property. Rather, the deed, on its face, transfers the parcel held by Annie Fowler to Atlantic Developments. As noted above, when Annie was refusing to sell and the others had an agreement for sale with Atlantic Developments, the company had offered her a right of way easement without any mention of her having a one-sixth interest in the Property. [ 12 ] Further, the evidence of Harrison Ford was that the brothers had agreed to partition the land into six parcels.

That is, while they held the land initially as joint tenants, they agreed among themselves to sever the joint tenancy and to partition the Property into parcels allocated in accordance with their father’s wishes. Severance of a joint tenancy may be accomplished by agreement of the parties and does not require court authorization ( Tavenor Estate v. Tavenor , 2008 NLCA 2 , 272 Nfld. & P.E.I.R. 299, at paragraph 16 ; King v.

King Estate , 2010 NLTD(G) 162, 302 Nfld. & P.E.I.R. 175, at paragraph 17 .) [ 13 ] The trial judge’s determination that the brothers agreed to sever the joint tenancy is a finding of fact which can be overturned only if it can be shown that the judge made a palpable and overriding error in reaching that conclusion ( Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235). That requirement is not satisfied here. The judge gave reasons for her determination based on evidence that was not contradicted.

There is no basis on which to conclude that the trial judge erred in accepting that the joint tenancy had been severed with the result that each parcel was held separately. It follows that Atlantic Developments cannot claim a one-sixth interest in the Property. Right of Way Easement to Atlantic Developments’ Parcel [ 14 ] Three types of easement were alluded to in this Court: express, by prescription, and of necessity.

Express Easement [ 15 ] In rejecting the express grant of a right of way easement, the trial judge wrote: [83] The authorities are clear that Annie Fowler could not grant a right of way over property which she did not own. The owners of the servient tenements, Harrison, Harry and Edward (4 th ) were the only parties who could have either granted such a right of way (as was intended in the Agreement of Purchase and Sale in 2009) or permitted possession by licence to other family members. The evidence does not support the express grant by them of a right of way to Annie Fowler.

Had the land been sold by them to [Atlantic Developments] as had been structured by their legal counsel in 2009, this would have been legally accomplished. [ 16 ] Atlantic Developments has provided no basis on which to conclude that the trial judge erred in law or in the application of the law to the facts. There is no evidence to suggest that the owners of the three parcels to the west of Atlantic Developments’ parcel ever granted an express right of way easement to that parcel. Prescriptive Easement [ 17 ] Regarding an easement by prescription, the conditions to be met are discussed in Maher v.

Bussey , 2006 NLCA 28 , 256 Nfld. & P.E.I.R. 308: [41] … As noted above, adverse possession requires the claimant to prove the four elements, open, notorious, continuous, exclusive possession during the requisite period of time. The legal conditions necessary to establish a prescriptive easement are different. They

are succinctly summarized in Carew v. Rockwood (1993), (NL SC), 112 Nfld. & P.E.I.R. 299; 350 A.P.R. 299(NLSCTD): “[20] … In Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431; 68 A.P.R. 431 (Nfld. Dist. Ct.), Steele, C.J.D.C., reviewed the authoritiesextensively and pointed out that, to support a prescriptive claim at common law, one must show ‘user as of right’, which has beenenjoyed neither by violence, nor secretly, nor with permission (nec vi, nec clam, nec precario). …” The use must be continuous for the requisite period of time. (See: Carew v.

Rockwood, supra, at paragraphs 20 to 28, and 30.) See also: Franklin v. St. John’s (City), 2012 NLCA 48, 325 Nfld. & P.E.I.R. 38. [18] In the instant case, the trial judge concluded that there was no evidence to establish that the prior owners of AtlanticDevelopments’ parcel had used a right of way over any other parcels to access their parcel either “over the course of twenty years or atall” (paragraph 64). Indeed, the judge was satisfied that Atlantic Developments had conceded that a prescriptive easement was notestablished.

On appeal, while Atlantic Developments did not expressly admit such a concession, it provided no basis on which toconclude that the trial judge had erred in determining that the usage required to ground a prescriptive easement had not been establishedby the evidence. Easement of Necessity [19] Principles engaged when an easement of necessity is claimed are discussed in MacKinnon v. MacDonald (1989), (NS SC), 88 N.S.R. (2d) 255 (NSTD) in which MacDonald J. referred to Halsbury’s Laws of England (2nd Ed.), vol. 11, at pages326 to 329.

To summarize principles relevant in the instant case, an easement of necessity may arise where a property is “landlocked”such that there is no other way, including inconvenient means, by which the owner can access the land. Such an easement is restricted tocircumstances where the landlocked property and the land over which the easement is claimed were in the common ownership of oneperson prior to creation of the two tenements. The easement cannot exist over the land of a stranger.

The grantor of the easement has theright to select the location of the easement, and need not choose the location most convenient to the grantee. [20] In the instant case, easement of necessity as discussed above was not raised by Atlantic Developments during the trial or in thisCourt. Rather, submissions on the issue were made at a supplementary hearing at the request of the Court. [21] The Fowlers submit that, because an easement of necessity was not raised during the trial, it cannot be considered by this Courton appeal.

They submit that this is a new issue and that it does not meet the criteria established by this Court for consideration of a newissue at this stage of the proceedings. [22] Whether a new issue may be raised on appeal is a matter in the discretion of the Court. The test to be applied is set out inMoakler v.

Conception Bay South (Town), 2006 NLCA 72, 262 Nfld. & P.E.I.R. 306: [11] In broad terms, the ability of a party to raise a new argument on appeal depends on the answer to two questions, namely, whetherthe issue can be dealt with by the appeal court without having to examine a different or expanded record from the court below, andwhether the other side will be prejudiced in his or her ability to deal properly with the issue. … I note, in passing, that every effort should be made to avoid the situation where a new issue is raised on appeal.

Subject to a change inthe law between the trial and appeal, all relevant issues should be canvassed at first instance at the trial level. To do otherwise results inadditional costs and unnecessary delays which are to be avoided. Further, the appeal court is denied the benefit of the trial judge’sconsideration of the issue. [23] In the instant case, Atlantic Developments did refer to a right of way “by implication” at the trial level, but this was based on anargument that, without a right of way easement, the parcels would not be “equal”.

The Fowlers submit that there was no attempt toaddress the question of an easement of necessity on the basis that the parcels would otherwise be landlocked. As a result, they submit,evidence necessary to address the issue on that basis was not led, and they would be prejudiced in their ability to respond. [24] The particular requirement for evidence in this case arises partly from the unusual location of the Property. No portion of theProperty has direct access to a public roadway. It is unclear from the evidence what access might be possible via the Valleyview path.

That path, which is approximately six metres wide, runs to the gully path between two lots in a new residential subdivision. There is noinformation as to whether the gully path begins or ends at a public access or what the nature or location of that access would be. Nor isthere information as to what access might be acquired along the gully path which is comprised of a strip of Crown land along which abrook passes.

There was no information as to possible access on the east end of the property where it appears there is a narrow strip ofCrown land which abuts on another residential subdivision. [25] The Fowlers submit that, if an easement of necessity based on the landlocked nature of Atlantic Developments’ parcel had beenin issue, evidence would have been led as to what possibilities, including the type of access, would be available to permit access to theProperty via the parcels at the east or west ends.

Clearly, without that information, the location and extent of a possible easement ofnecessity cannot be ascertained so as to address the landlocked nature of the Property. [26] In the result, it is clear that the first prong of the Moakler test cannot be satisfied. That is, the issue cannot be dealt with by thisCourt without a different or expanded record from the Court below.

Further, to make a determination on this issue without an expandedrecord would result in prejudice to the Fowlers who responded to the issues that were raised in the pleadings and submissions by AtlanticDevelopments in the Trial Division. [27] Accordingly, it is not appropriate to consider the new issue of an easement of necessity based on the landlocked nature ofAtlantic Developments’ parcel. COSTS

[ 28 ] The Fowlers have requested that the costs of the two hearings in this Court be considered separately. This is appropriate given that the second hearing related to a new issue, albeit one raised by the Court. [ 29 ] Regarding the first hearing, the Fowlers request their party and party costs under column 4 of the scale of costs. Rule 55.04 of the Rules of the Supreme Court, 1986 provides that, unless otherwise ordered, costs are to be determined according to column 3. Subsection (4) of the rule provides factors that may be considered in determining an award of costs: In exercising its discretion under this Rule, the Court may consider … (

c) the complexity, difficulty or novelty of the issues; (

d) the manner in which the proceeding was conducted, including any conduct that tended to shorten or unnecessarily lengthen the duration of the proceeding; (

e) the failure by a party to admit anything that should have been admitted; … (

h) any other relevant matter. [ 30 ] The Fowlers focus primarily on the manner in which the proceeding was conducted. In particular, in this Court, they point to the delays occasioned by Atlantic Developments’ failure to proceed expeditiously and in accordance with the rules, despite their repeated requests. When the notice of appeal was filed, the Fowlers state that they very early put Atlantic Developments on notice regarding the need to proceed without delay. The notice of appeal was filed on December 21, 2012.

However, on April 26, 2013, the Fowlers filed an application in this Court seeking to either dismiss the notice of appeal or set filing dates. An amended appeal book was ordered because the original was deficient. In addition, Atlantic Developments failed to accept in this Court concessions which the trial judge understood had been made.

In the result, I am satisfied that an award of costs under column 4 in respect of the first hearing is appropriate. [ 31 ] Regarding the second hearing, the Fowlers request solicitor and client costs on the basis that the new issue should have been argued at trial and that they were prejudiced by additional costs and delay as a result of Atlantic Developments’ failure. However, while it is true that the issue should have been dealt with at trial, it was raised here, and a second hearing required, at the instance of the Court.

In the circumstances, I am satisfied that an award of costs under column 5 in respect of the second hearing is appropriate.

SUMMARY AND DISPOSITION [ 32 ] In

summary, the trial judge did not err in determining that the joint tenancy, that applied when the Fowlers initially took possession of the Property, had been severed by agreement among the brothers, with the result that each parcel was held separately.

Accordingly, Atlantic Developments cannot claim a one-sixth interest in the Property. [ 33 ] The trial judge did not err in determining that neither an express right of way easement nor a prescriptive easement had been established. [ 34 ] An easement of necessity based on the landlocked nature of Atlantic Developments’ parcel was not raised at trial and cannot be considered on appeal because the issue cannot be dealt with by this Court without a different or expanded record from the Court below. [ 35 ] Accordingly, I would dismiss the appeal with party and party costs to the Fowlers under column 4 in respect of the first hearing and under column 5 in respect of the second hearing. ___________________________________ B.

G. Welsh J.A. I Concur: _______________________________ L. B. Barry J.A. I Concur: _______________________________ L. R. Hoegg J.A.