Fennemore v. Mercer, 2014 NLCA 16

Date: 201403 31 Docket: 13/54 Citation: Fennemore v. Mercer , 2014 NLCA 16 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : CAROL FENNEMORE, GERALD FENNEMORE, DANNY MORGAN and TERI MORGAN APPELLANTS AND : DOUGLAS MERCER and KAREN MERCER RESPONDENTS Coram: Rowe, Mercer and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201001T3015 (2013 NLTD(G) 85) Appeal Heard: March 3 and March 5, 2014 Judgment Rendered: March 31, 2014 Reasons for Judgment by Rowe J.A. Concurred in by Mercer and Harrington JJ.A. Counsel for the Appellants: John R. Sinnott Q.C. Counsel for the Respondents: Douglas Moores Q.C. Rowe J.A.:

FACTS [1] This case relates to a dispute over a public right of way. [2] The Appellants/Plaintiffs own land in Bay Roberts. Carol Fennemore and Gerald Fennemore are the parents of Teri Morgan,to whom Danny Morgan is married. The Fennemores allowed the Morgans to build a house on their land. The Fennemores’ land frontson Green’s Road, which runs parallel to Yetman’s Lane. [3] The Morgans and the Fennemores preferred that the Morgans gain vehicle access to their house via Yetman’s Lane, ratherthan Green’s Road.

As well, they preferred that water and sewer services be run from Yetman’s Lane, rather than Green’s Road. [4] The Morgans wished to utilize a right of way leading from the Fennemore/Morgan property to Yetman’s Lane for theforegoing purposes. Toward this end, they arranged for the laying of a water and sewer line along the right of way. They intended touse the right of way subsequently for vehicle access. [5] The Respondent/Defendants also own land in Bay Roberts. Their property fronts on Yetman’s Lane.

The right of way thatthe Morgans sought to use runs along the North side of the Mercers’ Property. [6] The conflict between the parties relates to the placement and width of the right of way. The Fennemores and the Morgans saythe right of way is 15 feet wide (wider in some places) and that one boundary of the right of way is a fence erected by Noel Oates. Mr.Oates’ land is adjacent to and South of the right of way (i.e. on the opposite side to the Mercers). The Mercers say the right of way iseight feet wide.

As well, they say the Oates’ fence is not on the boundary of the right of way, but rather encroaches upon the right ofway, to a maximum (at one point) of six feet. [7] There are practical consequences to the placement and width of the right of way. If the Fennemores and Morgans are correct,then the Mercers would have to demolish a deck they have built; as well, the Mercers’ land would be substantially smaller than theybelieve it to be. In addition, if the Fennemores and Morgans are correct, a 15 foot right of way would be adequate for vehicle access toYetman’s Lane.

Also, if the Fennemores and Morgans are correct then, they say, they were wrongly prevented from running water andsewer service under the right of way. [8] It is not disputed that on August 14, 2009, Karen Mercer placed her car on the end of the right of way toward Yetman’s Lanewith the purpose of preventing heavy equipment from moving onto the right of way to excavate to run water and sewer lines to theMorgans’ house.

The Mercers say this was done as operation of the heavy equipment could not have been carried out within an eightfoot right of way and operation of the heavy equipment would have encroached on and caused damage to their property. [9] Immediately thereafter, the Mercers wrote the municipal government in Bay Roberts to complain about the plannedexcavation.

In response, Bay Roberts suspended the excavation. (In a separate action, the Appellants are suing Bay Roberts regardingthis.) The Morgans then had the water and sewer run from Green’s Road, from which they also have vehicle access. [10] In the Trial Division, the Appellants sought a declaration as to the placement and width of the right of way, removal by theMercers of items from the right of way, as well as damages in trespass or nuisance arising from Karen Mercer’s actions on August 14,2009. [11] The Trial Division judge decided in favour of the Defendants as to the placement and width of the right of way.

She also heldthat Karen Mercer’s actions on August 14, 2009 did not constitute a “substantial interference” with use of the right of way; thus nodamages were due to the Plaintiffs in trespass or nuisance. ISSUES [12] The Factum of the Appellants lists eleven issues.

These can be grouped as follows: (1) did the trial judge err as regards the effect of various conveyances; (2) did the trial judge err in her findings of fact arising from testimony by various witnesses and also photos and surveys placed inevidence; and (3) did the trial judge err in concluding that the Respondents had not “substantially interfered” with use of the right of way?

STANDARD OF REVIEW [13] The first and third groups of issues, relating to the effect of various conveyances and the alleged acts of trespass or nuisance, arematters of mixed fact and law, for which the standard of review is correctness for extricable questions of law and palpable and overridingerror otherwise. For the second group of issues, relating to findings of fact, the standard of review is palpable and overriding error. SeeHousen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, paras. 1-36 and Seadane International Inc. v. Morgan International MarketingInc. (1999), (NL CA), 180 Nfld. & P.E.I.R. 97 (Nfld.

C.A.) at para. 26.

(1) Conveyance of Adjacent Lands [14] In September 1975, William Mercer conveyed to Alton Haggett land now owned by Noel Oates, being lands North of andadjacent to the right of way. The description of the land refers to it as “bounded on the south by the public road”, i.e. the right of way. In March 1979, this land was conveyed by Mr. Haggett to William Yetman; in May 1988, it was conveyed by Mr. Yetman to Mr. Oates. These two later conveyances describe the lands similarly, i.e. “bounded on the south by the public road”.

[15] Counsel for the Appellants made heavy weather of this description. However, the reference to a “public road” in the deeds hasno particular legal effect; rather, it simply indicates that the adjacent strip of land was open to use by the public. More to the point, theconveyances are of no assistance in identifying the placement or the width of the right of way. [16] William Mercer had also owned land South of and adjacent to the right of way.

Upon his death, this land passed to MelindaMercer, his widow. (The children of William and Melinda Mercer conveyed their interest to her in a Deed of Assent; it refers to the rightof way in question and states it is eight feet wide.) The estate of Melinda Mercer conveyed the land to Karen Mercer (the daughter ofWilliam and Melinda Mercer). This is the land on which the Mercers have their house. [17] In January 1971, George Yetman conveyed to Duncan Snow part of the land now owned by the Fennemores.

A sketch attachedto the conveyance shows the existence of the right of way, but does not assist in its placement or width. [18] The trial judge referred to these conveyances. She concluded they did not assist in determining the placement of the right ofway or its width. No error has been shown in the trial judge’s treatment of this evidence. As well, Counsel for the Appellants referredthis Court to numerous other documents and photographs relating to the usage of the right of way in decades past, none of which hadprobative value as to the matters in issue.

(2) Testimony and Recent Surveys [19] In very large measure, the trial judge based her decision as to the placement of the right of way and its width on the testimony ofwitnesses. She also had reference to recent surveys and numerous photographs. [20] Generally, witnesses for the Appellants testified to the effect that the right of way was South of a fence erected by Noel Oates,that the right of way was wider than eight feet and that it had been used with some regularity by vehicles, in addition to pedestrians.

Bycontrast, witnesses for the Respondents testified to the effect that the right of way had been encroached on by Noel Oates’ fence, that itwas (about) eight feet wide, that it had been used rarely by vehicles and was essentially a foot path. [21] The trial judge carefully reviewed the testimony.

She made assessments of the witnesses’ credibility taking into account, interalia, the consistency, clarity and directness of what they said, the circumstances relating to their opportunity to be aware of relevant factsand whether or not they were persons with a direct interest in the outcome of the case. [22] Generally, the trial judge found the witnesses for the Appellants to be less credible and the witnesses for the Respondents to bemore credible.

Nothing in the submissions of counsel for the Appellants demonstrated any error by the trial judge in her handling of thewitnesses’ testimony nor did it show that she had made palpable and overriding errors in her findings of fact. [23] This Court does not need to do a line-by-line analysis of the extensive arguments of counsel for the Appellants regarding thetrial judge’s findings of fact. An appeal is not a second trial on the transcript. The onus is on Appellant’s counsel to show error and nosuch error was shown.

To the contrary, close reading by this Court of the trial decision indicates a well-reasoned and thoroughlyexplained assessment of the testimony, leading in a clear and logical way to the findings of fact. [24] Something more needs to be said concerning recent surveys, notably that prepared by Lewis Norman in 2004. This surveyplaces the right of way where the Appellants say it is. The problem is that Mr. Norman took what he was told by Mr. Oates and drew hissurvey accordingly. Thus, Mr. Norman’s survey has no probative value independent of Mr. Oates’ testimony. As to Mr.

Oates’testimony, the trial judge found it to be evasive, inconsistent and tailored to defend his position regarding the placement of his fence. Inshort, on key points the trial judge did not believe him. Mr. Norman’s survey can have no more probative value than Mr. Oates’testimony.

(3) Nuisance or Trespass [25] On appeal, counsel for the Appellants appeared to abandon the claim in trespass, as he asserted the right of way was a “publicroad”, rather than private property. However, this leaves open the claim in nuisance.

That said, nothing turns on this. [26] As noted, on August 14, 2009, Karen Mercer parked a car on the right of way near Yetman’s Lane in order to prevent heavyequipment from excavating along the right of way as such excavation would encroach on and cause damage to the Mercers’ property. [27] In her decision at paragraph 79, the trial judge wrote: [O]n August 14, 2009 [Karen Mercer’s] action was immediate, direct, reasonable, justified and simply delayed the matter until it couldbe investigated by the municipal authority. Ms.

Mercer could do nothing more given the late notice to her on August 13, 2009 by TeriMorgan as to what was happening on her property early August 14, 2009. The act of parking a vehicle was not a trespass but to prevent atrespass onto her property. The water and sewer could not be installed without equipment, materials, gravel or all of the above beingplaced on the Mercer property. If one substitutes the word “nuisance” for “trespass” in the foregoing passage, the logic is the same. [28] The trial judge quoted from Campbell v.

Bishop (2003), (NL SC), 227 Nfld. & P.E.I.R. 230 (NLTD),which in turn quoted from Halsbury’s Laws of England, Volume 14, 4th edition, 1975, at p. 80: [N]ot every obstruction of the [right of] way amounts to an unlawful interference and no action will lie unless there is a substantialinterference with the easement granted … The question whether any particular interruption amounts to an unlawful interference depends upon the nature of the right-of-way andthe place and upon the general circumstances of the case.

Any disturbance of a way is unlawful which renders the way unfit for thepurposes for which it was granted, to the injury of the person entitled to the way.

(Underlining added.) [29] The trial judge applied the foregoing legal yardstick to Karen Mercer’s actions on August 14, 2009 and concluded that no“substantial interference” with use of the right of way had taken place. [30] It is clear from the trial judge’s decision that the foregoing conclusion was dependent on her earlier conclusion as to theplacement and width of the right of way. Thus, if the right of way was 15 feet wide and extended from Mr. Oates’ fence well onto landupon which the Mercers had built, then the conclusion would almost certainly be different.

However, having concluded, as did the trialjudge, that the right of way was eight feet wide and had been encroached on by the placement of Mr. Oates’ fence, then the conclusionof no “substantial interference” is clearly warranted. No error has been shown by the Appellants with respect to this issue. FRESH EVIDENCE [31] As a final matter, counsel for the Appellants applied to have this Court receive fresh evidence as to the existence and placementof a culvert under part of the right of way.

The Court heard submissions on the application and reserved its decision, to be rendered aspart of this judgment. [32] Rule 57.2(1) of the Rules of the Supreme Court, 1986 governs. Four criteria for the admission of fresh evidence on appeal wereset out by Chief Justice Green in Coles v. Coles, 2014 NLCA 3 at para. 4: Generally, four criteria must be met before fresh evidence will be received on appeal: (

i) it could not, with due diligence, have beenadduced at trial; (ii) it must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial; (iii) it must becredible in the sense that it is reasonably capable of belief; and (iv) it must be such that, if believed, it could reasonably, when taken withthe other evidence adduced at trial, be expected to have affected the result. See Sparkes-Morgan v. Webb, 2001 NFCA 55; Harvey v.Harte (1999), (NL CA), 176 Nfld. & P.E.I.R. 279 (NF CA); Humby v.

Newfoundland and Labrador HousingCorporation, 2013 NLCA 4. [33] The fresh evidence in this case fails to meet the second and fourth criteria, in that it has essentially no probative value regardingthe matters in issue. Accordingly, the application is denied. CONCLUSION [34] The appeal is dismissed. The Respondents are awarded costs of the appeal on a party-and-party basis. ________________________________________ M. H. Rowe J.A. I Concur: __________________________________ K. J. Mercer J.A. I Concur: __________________________________ M. F. Harrington J.A.