JOHN FRANKLIN APPELLANT AND: CITY OF ST. JOHN’S FIRST RESPONDENT AND: SONCO GROUP INC. SECOND RESPONDENT AND: 55402 NEWFOUNDLAND v. LABRADOR LIMITED THIRD RESPONDENT, 2012 NLCA 48

Date: 20120725 Docket: 11/45 Citation: Franklin v. St. John’s (City) , 2012 NLCA 48 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: JOHN FRANKLIN APPELLANT AND: CITY OF ST. JOHN’S FIRST RESPONDENT AND: SONCO GROUP INC. SECOND RESPONDENT AND: 55402 NEWFOUNDLAND AND LABRADOR LIMITED THIRD RESPONDENT Coram: Green C.J.N.L., Wells and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 2006 01T 3993 Appeal Heard: May 9, 2012 Judgment Rendered: July 25, 2012 Reasons for Judgment by Wells J.A. Concurred in by Green C.J.N.L. and Harrington J.A.

Counsel for the Appellant: Owen Myers Counsel for the First Respondent: Linda Bishop Counsel for the Second Respondent: Gerry Fleming

Counsel for the Third Respondent: Richard Rogers Wells J.A.: [ 1 ] This is an appeal taken from the decision of a judge of the Trial Division dismissing what was, originally at least, an application by the appellant (“Franklin”) for a writ of mandamus to compel the first respondent (“the City”) to remove a condition, requiring consent of adjoining property owners, it imposed before it would issue a permit to Franklin to construct a fence and fire escape stairs on a small piece of property, which he had purchased from the City, immediately to the rear of his hotel facility on Water Street in St. John’s.

Two adjoining property owners, the second respondent (“Sonco”) and the third respondent (“55402 NL Limited”), were added as intervenors by the trial judge. BACKGROUND [ 2 ] For an indeterminate number of years prior to 1965 the five or so business property owners on the southeast side of Water Street immediately southwest of Baird’s (sometimes Clift’

s) Cove and other owners of business properties adjoining the relatively narrow irregular shaped strip of land (“the Laneway”) along the rear of those Water Street properties, made use of the Laneway for access to their properties from Baird’s Cove, in addition to access from Water Street. The applications judge noted a lease dated in 1894, referring to a right-of-way, and found that right-of-way rights were established by prescription “as early as the 1930s-1940s”.

None of the parties to the proceedings below had seriously challenged the fact that prior to 1965 those adjoining property owners used the Laneway as an access to their business properties more convenient for certain purposes than the public access from Water Street.

In addition there was evidence of the presence of sewer pipes in the ground and a buried power line operated by the electric power utility. [ 3 ] In connection with the assembly of land for construction of a municipal parking garage the City issued, in 1965, two notices of expropriation whereby it expropriated “all the right title and interest of I.F. Perlin and Company Limited, Montreal Trust Company, Steers Limited and National Trust Company” in and to the land described in the

schedule attached to each notice. Each

schedule described a separate parcel of land. One, containing 3,371 sq. ft., was described as “situate and being on the southwest end of a right of way”. The plan attached indicates that the land being expropriated abuts the southwest end of the Laneway that is the subject of this dispute. The other parcel expropriated is described as “beginning at a point on the southwest side of Clift’s Cove,” is designated on the plan attached as “Right of Way”, and contains 3,225 sq. ft. It is reasonable to conclude from the plan attached that this parcel constitutes the Laneway in its pre-1965 state.

While there is no evidence as to the exact area of the present Laneway, all of the plans and descriptions in evidence would support the conclusion that the present Laneway surface occupies about 3/4 or 4/5 of that 3,225 square feet with the remainder now being part of the land under the parking garage. In any event, the whole of the present Laneway surface, over which the disputed rights-of-way are claimed, is contained within the 3,225 square feet expropriated by this notice of expropriation. [ 4 ] In 1995 the City entered into a lease-purchase agreement with A.P.

Parking Garage Inc. whereby it agreed to lease and ultimately sell the municipal parking garage, the title to which is now held by Sonco, together with a right of way to Water Street, not relevant to this dispute, and a right of way “to Baird’s Cove” over 80.354 sq. meters, (which equates to 864.923 sq. ft.) of the expropriated 3,225 sq. ft., or perhaps a little over one-third of the surface of the pre-1965 Laneway.

On the plan it appears to cover about one-half of the width of a portion of the southeast side of the present Laneway immediately adjacent to the parking garage at its Baird’s Cove end. [ 5 ] In November 1995 all of the owners of land abutting the Laneway, including A.P.

Parking Garage Inc., entered into what is styled as “THIS RIGHT OF WAY AGREEMENT” (“Right-of-Way Agreement”), but sometimes referred to by Franklin as the “Parking Agreement”, whereby each party agreed to “tolerate the equal use by each other” of the Laneway for the purposes specified in the agreement including parking of motor vehicles. [ 6 ] In 2002 the City conveyed the parking garage property and the two rights of way to A.P. Parking Garage Inc. No evidence was offered as to whether Sonco is an assignee of A.P. Parking Garage Inc. or is that company with its name changed.

In any event, it is common ground that during the currency of these proceedings the parking garage property was owned by Sonco. I will refer to A.P.

Parking Garage Inc. as the predecessor in title to Sonco. [ 7 ] Following receipt of advice by an official of the City that the City “owns the freehold interest in the Laneway, as well as a right of way over same, subject to rights-of-way owned by the owners of 191 Water Street, 193-195 Water Street and 197-199 Water Street”, Franklin, on December 8, 2005, wrote to the City requesting that: … the City considers[sic] selling to me at fair market price the freehold of the entire lane currently owned by the City or all that piece of land belonging to the City that extends directly behind and between 193 – 195 Water Street and the Garage.

I would be bound by all legally based ROW that the owners of 197 – 199 Water Street have . I would also be bound by any easements or other rights previously sold or granted to the Garage by the City. … (Emphasis added.) I would note that 55402 NL Limited is now the owner of 197-199 Water Street, the property referred to in the sentence underlined above.

As an alternative to purchasing the property, in the event that the City decided to retain ownership, Franklin sought permission “to extend unto or overlook City properties” for the purpose of constructing emergency exit doors, stairs, a roof extension and eaves troughs. [ 8 ] Taking the position that “the City owned the fee simple interest in the Laneway land, subject to the rights of way vested in the property owners on Water Street”, the City staff recommended to the City that “the fair way to handle this was to offer to divide it up and sell the freehold in portions to the abutting property owners, subject to the private rights of way of the others”.

Offers were made to the abutting property owners and most, if not all, accepted. In June of 2006 the City conveyed to Franklin, the freehold in the appropriate portion of the Laneway, adjacent to his hotel property. The Deed of Conveyance specifies that the conveyance is: SUBJECT TO any existing rights, including rights of way and an easement for a private sewer line, held by any of the owners of

properties in the immediate area of the laneway, of which, the subject land forms a part and also SUBJECT TO a power line easement in favour of Newfoundland Power Inc. for maintenance of an existing underground power line. [ 9 ] In February 2007, 55402 NL Limited acquired one of the Water Street properties, namely 197-199 Water Street, from one Geoffrey Hiscock. The conveyance by which Hiscock acquired the property is not part of the record but one of the two abstracts of title, that are part of the record, indicates that it was acquired by Hiscock in October 1988 from Steers Limited.

The abstracts also indicate Steers Limited acquired property in the area in 1962, together with “… all ways paths passages watercourses easements rights privileges and appurtenances… appertaining”. That is the only documentary evidence before the Court as to Hiscock’s background title. The conveyance by Hiscock to 55402 NL Limited does not specifically refer to a right of way or easement running with the property. [ 10 ] Franklin constructed some propane holding facilities and, without a permit from the City, constructed a fence around the portion of the Laneway land that he purchased from the City.

Other users of the Laneway complained and the City took action requiring removal of the fence. Franklin then applied for a permit to construct the emergency exit stairs and the fence. The City insisted that he first provide “legal documentation from the people who have an interest in the right of way approving construction”. Some abutting owners did not respond to Franklin’s notice and request but Sonco and 55402 NL Limited did. They refused to approve and, on the basis of those refusals, the City refused a permit for either the fence or for the emergency exit stairs construction.

PRIOR PROCEEDINGS [ 11 ] As a consequence of the City’s refusal to process the application for permits, unless documents substantiating approval of the abutting owners were provided, on September 7, 2006, Franklin took out an originating application seeking “An Order of Mandamus compelling the [City] to delete or remove the extraneous and irrelevant condition from his permit application …”. [ 12 ] In his decision the applications judge recorded agreement between the parties as follows: [21] All parties agreed to amend the application so as to allow the court to deal with any private property rights between the applicant, the City/Respondent and the Intervenors… As a result of that approval of all parties, on September 21, 2010, the applications judge had, at the outset of the hearing, ordered that “the following amendments are added to [Franklin’s] pleadings”: 1.

That the Respondent acted beyond its jurisdiction or without jurisdiction in failing to properly consider the application of November 2004 for a permit to construct two external fire escapes; 2. That the Respondent acted beyond its jurisdiction or without jurisdiction in requiring the Applicant to provide legal documentation from the people who may have an interest in the right of way approving the construction; 3. That the Respondent acted beyond its jurisdiction or without jurisdiction in considering the private property dispute between the Applicant and the Intervenors; 4.

That the Applicant owns the land which is the subject of the permit application in question in fee simple; 5. That the Intervenors have no legal rights or interests in the land which is the subject of the permit application because the land was expropriated by the Respondent in various expropriations beginning in or about 1962 and subsequently sold to the Applicant on June 22nd 2006; 6.

That the “Parking Agreement” of April 1996 is null and void and of no legal effect with respect to the Applicant. [ 13 ] With respect to the nature of the proceedings then before him, in his reasons for decision, the applications judge decided: [22] The amendments had the effect of turning the mandamus application into a cause of action involving the private property rights of the parties; i.e., the Applicant, Mr. Franklin; the rights of the Respondent, the City of St.

John’s, and the Intervenors; Sonco Group Inc., First Intervenor; and the Second Intervenor, 55402 Newfoundland and Labrador Limited. [ 14 ] With respect to the substantive issues, the applications judge decided: [85] The City was within its rights to refuse the permit unless there was an agreement amongst the adjacent property owners of the said laneway. It is sufficient for the purposes of this case to rule that the First and Second Intervenors do have a prescriptive right of easement over the right-of-way to use the whole of the laneway.

Any acts or structures which impede these rights have to be removed. [86] Further, the Parking Agreement would appear to be binding on Mr. Franklin and his successors and assigns who signed the Agreement as it relates to the prescriptive right of the adjacent owners to the Water Street property and the parking garage owner, Sonco Group Inc. It should be noted that Sonco Group Inc., although having a right of use of a portion of the lane, also has to respect the rights of others as well. [87] Mr.

Franklin should be estopped, by law, from interfering with the operation of this Agreement, as he has had the benefit of the Agreement since purchasing his property in 2004 to date. [88] Any future use of the right-of-way would have to be with the agreement of the adjacent Water Street property owners and the owners of the parking garage, their heirs, successors and assigns.

To clarify the issue for future tenants, the City should provide a written right-of-way to the parties of the properties adjacent to the Baird’s Cove right-of-way. [89] The use of the right-of-way directly behind either of the Franklin Property or the parking garage or any of the other property owners cannot and should not be used for any purpose that has the effect of blocking, either permanently or temporarily, the access of the other property owners adjacent to the said right-of-way in the future. Their rights, by prescription, were established as late as 1985, and

as early as the 1930s – 1940s, and would carry forward to any assigns and successors of the original property owners who purchased by deed. [ 15 ] The formal order filed on August 29, 2011, consequent upon that decision of the applications judge, ordered that: 1. The Right of Way Agreement dated November 1, 1985 and registered at Roll 1395, Folio 395 of the Registry of Deeds (the “Right of Way Agreement”) is binding on the Applicant and his successors and assigns together with the other signatories thereto and their successors and assigns; 2.

The Applicant be stopped from interfering with the operation of the Right of Way Agreement; 3. The right of way directly behind either the Franklin Property or the parking garage owned by the First Intervenor or any of the other property owners cannot and should not be used for any purpose that has the effect of blocking, either permanently or temporarily, the access of the other property subject to the Right of Way Agreement; 4. The Applicant is to remove the fence he has erected on the right of way as well as any other obstacles thereon and is not to interfere with the Right of Way Agreement; and 5.

The Respondent and Intervenors shall have their costs on a party and party basis. Franklin appealed. APPEAL (

a) Matters properly before the Court [ 16 ] In identifying his appeal to be from “the decision of the [applications judge]”, Franklin, presumably inadvertently, identifies it to be the decision dated April 21, 2011, which is, in fact, the reasons for decision instead of the decision. The decision is, of course, the formal order filed on August 29, 2011 as set out in paragraph 15 above. In describing the grounds of appeal, his notice of appeal sets out fourteen allegations of error by the applications judge.

It is neither necessary for the full disposition of this appeal, nor, in respect of some of the grounds, appropriate, for this Court to deal with many of those alleged errors. The notice of appeal does, however, request an order that “the decision of the Learned Trial Judge is reversed as follows”:

a) That no easements or any property rights survived the expropriation of 1965 or came into existence following the expropriation of 1965 except as granted by the Respondent by Deed.

b) That the Appellant is not subject to the Right of Way Agreement and it is not binding on the Appellant and his successors and assigns.

c) That the City of St. John’s has no authority to insist on the consent of the adjoining property owners before dealing with the permit request of the Appellant to construct an emergency exit.

d) That the City of St. John’s is ordered to deal with the permit requests of the Appellant to construct emergency exits and other permissions behind 193-195 Water Street and which are on land sold to the Appellant by the Respondent.

e) That the order as to costs is rescinded. [ 17 ] It is difficult to identify the matters that are properly before this Court.

Doing so requires particular consideration of the pleadings as they were amended in the proceedings below, identification of the matters properly before the applications judge, the formal order filed on August 29, 2011 following reasons for decision, the notice of appeal and Franklin’s factum. [ 18 ] The originating application contains fourteen factual allegations setting out the property circumstances, as Franklin claimed them to be, in respect of the Laneway and the adjoining properties lying between the Laneway and Water Street, the effect of certain expropriations by the City, the existence of and facts relating to the Right-of-Way Agreement, Franklin’s purchase from the City in 2006 of the one half of the Laneway land that was immediately adjacent to his property and the insistence by the City that he obtain the consent of adjoining property owners before the City would issue a permit for Franklin to construct a fence and an external fire escape on the land he purchased from the City.

The relief sought in the application is expressed in the fifteenth paragraph to be: The Applicant therefore repeats the foregoing and applies for an Order of Mandamus compelling the Respondent to delete or remove the extraneous and irrelevant condition from his permit application contained in their April 27th, 2006 correspondence requiring the Applicant to “provide legal documentation from the people who may have an interest in the right of way approving the construction” (Emphasis as in the original.) [ 19 ] The first three of the amendments, set out in paragraph 12 above, ordered by the applications judge with the consent of all the parties, do little more than plead a legal basis for seeking an order of mandamus ; the fourth and sixth assert conclusions that it would have been inappropriate for the applications judge to reach because the evidence indicates that persons not party to the action have an interest in any determination of property ownership in the Laneway land, and determination as to the validity of the Right of Way Agreement.

Only the fifth bears directly on the issue of whether Sonco and 55402 NL Limited have such rights in the Laneway as would justify the City requiring their approval before issuing the construction permits requested by Franklin. [ 20 ] Nothing in those amendments would vary the relief sought in the originating application. No defences or other pleadings were filed in the court below to indicate the positions of the other parties. As a result, no issues were joined as between the parties, as would

be expected in any application converted to an action. In his reasons the applications judge expressed his conclusion that “the amendments had the effect of turning the mandamus application into a cause of action involving the private property rights of the parties”. The rules clearly permit a judge hearing an originating application to transfer a matter from chambers into court. Rule 29.10(

d) provides: 29.10. On a hearing of an application, the Court may on such terms as it thinks just, … (

d) adjourn or transfer the hearing from chambers into Court or from Court into chambers; (

e) notwithstanding rule 5.02, order the application to be continued in Court as if the proceeding had begun by a statement of claim and order the application and affidavits to stand as pleadings, with liberty to any party to amend or add thereto or apply for particulars thereof, and to give any other direction as is applicable; [ 21 ] Nothing in the record indicates that this was, in fact, formally done. Nevertheless all involved, including the applications judge, proceeded on the basis that it would be appropriate to have all issues bearing on the interests of the parties in the Laneway determined.

The matter proceeded in that manner without any indication of the responding positions of the other parties and without any indication of any change in the remedy sought. [ 22 ] The procedural or legal consequence of the amendments ordered by the applications judge was not placed in issue, or even raised, in this Court by any of the parties.

That does not however make it appropriate for this Court to determine issues not joined in pleadings below, or expressed in the formal order, particularly where the materials before the Court disclose the existence of persons not party to the proceeding but potentially having an interest in determination of the validity of certain assertions in the originating application as amended. Essentially, on the pleadings as amended, the proceeding before the applications judge, whether viewed as an application or an action, remained a proceeding seeking an order of mandamus . (

b) Position of Franklin [ 23 ] At the conclusion of his factum, after stating that he “also amended his pleadings to add various declarations that the actions of the City are ultra vires” , Franklin identifies the relief he seeks from this Court to be:

i) That this Appeal be allowed and the declarations sought granted and also an Order of Mandamus be granted. ii) Costs to the Appellant for this appeal and the trial below. [ 24 ] On the whole of the record it is difficult to be certain as to “the declarations” to which Franklin’s factum refers. The order amending the pleadings makes no mention of declarations. On its face, it appears to add six allegations to the fourteen in the originating application. The applications judge did not identify them as requested declarations with which he was dealing.

There is no clear correlation between those six allegations and the five conclusions of the applications judge set out in paragraph 14 above or the four items (in addition to costs) dealt with in the formal order following judgment set out in paragraph 15 above. [ 25 ] The only items put forward by Franklin that can reasonably be described as “declarations sought” are the five items, set out in paragraph 16 above, that Franklin’s notice of appeal requested be ordered by this Court. They are the variations he identified when he requested that the decision of the applications judge “be reversed as follows”.

They also track the issues argued by counsel for Franklin at the hearing of the appeal.

On the whole of the materials before the Court, it can only be concluded that Franklin is asking this Court to set aside the formal order set out in paragraph 15 above and replace it with an order containing the declarations set out in paragraph 16 above. [ 26 ] In the course of responding to Franklin’s request, this Court should, in the foregoing circumstances, confine its decision as to property ownership, and entitlement under agreements, to such determinations as are strictly necessary to deal with the issue of whether or not Franklin is entitled to his requested mandamus , and then only to the extent that such determination can be made without bearing on the rights of any person or entity not before the Court as a party to these proceedings.

It will also, of course, be necessary to deal with the fifth requested declaration respecting the costs order made by the applications judge. (

b) Position of the City [ 27 ] The City maintains that “… the long standing interests of the property owners abutting the [L]aneway, including 55402 [NL Limited] have given rise to rights in the [L]aneway…”. The City confirms that it “… also acknowledges the rights of the former property owners of the property occupied by the Parking Garage, now Sonco, who also exercised rights-of-way over the [L]aneway.” The City requests that the appeal be dismissed and the decision below be upheld. (

c) Position of Sonco [ 28 ] In its factum Sonco describes its position as follows: While any rights in the Right of Way Agreement would have vested with the City upon expropriation, the position of [Sonco] is that since expropriation it has gained a prescriptive easement over same. Later in its factum it summarized its argument to be: … since expropriation in 1965, Sonco and the owners of the Water Street Properties have gained property rights in the form of a prescriptive easement over the Right of Way that has run with the land up to the present date.

Sonco then requests, simply, that the appeal be dismissed and the order below be upheld. (

d) Position of 55402 NL Limited [ 29 ] 55402 NL Limited based its claim entirely on the Right of Way Agreement and argued: The terms of the Right of Way Agreement are clear and specifically state that they are binding on successors. 55402 [NL] Limited having succeeded the original signatory Geoffrey Hiscock and become the owner and operator of a business located at Civic No. 197- 199 Water Street, is currently a party to the Right of Way Agreement and retains its right of access over the Laneway, including the portion of the Laneway now owned by the Applicant.

It then requests that its “property and their rights to their parking space in the Right of Way [L]aneway be upheld and protected in accordance with the decision [below]”. ANALYSIS (

a) As to the first declaration sought: “That no easements or any property rights survived the expropriation of 1965 or came into existence following the expropriation of 1965 except as granted by the [City] by Deed”. (

i) The existence of a right-of-way [ 30 ] Referring to a document dated as early as 1894 and to a variety of other documentary and oral evidence, the applications judge concluded that the owners of the properties adjoining the Laneway exercised rights of way over the Laneway prior to 1965.

He then decided: [60] … It is the position of this court that [Sonco] and [55402 NL Limited] have a prescriptive easement of necessity, which present and past owners have exercised continuously over many years… [61] A prescriptive easement is an easement acquired not by grant, but by use and enjoyment for a period of time prescribed by law. All of the previous owners enjoyed such a prescriptive easement up to the mid nineteen sixties.

It was recognized in deeds as far back as the turn of the century… [ 31 ] The reference by the applications judge to easement “of necessity” seems misused and may confuse matters somewhat. The rights at issue do not appear to arise out of necessity and necessity was not an issue in this appeal. [ 32 ] The applications judge gave consideration to the “principle” to be applied in the course of determining whether or not a prescriptive easement exists. He relied on, and quoted a brief excerpt from Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 (Nfld.

Dist.Ct.) , a decision of the then chief judge of the District Court, later Steele J.A. of this Court. He made no error in so doing. That decision has been mentioned, without criticism, by this Court in Bussey v. Maher, 2006 NLCA 28 , 256 Nfld. & P.E.I.R. 308 as having “dealt with the law related to establishing … a prescriptive easement”. It has been relied upon by judges of the Trial Division on numerous occasions, because it contains a thorough assessment of the law respecting establishment of an easement by prescription.

Although lengthy, consideration of a major part of that assessment is important to determination of the issues in this appeal and, hopefully, will be helpful to the parties’ understanding of this decision. Steele C.J.D.C. wrote: [25] There are three legal methods by which a prescriptive easement can be established or prescriptive rights can be claimed: 1. Prescription under a prescriptive statute; 2. Claims based on lost grants; and, 3. Prescription at common law. [26] Certain provinces in Canada have prescription statutes, but Newfoundland is not one of them.

In England the statute is cited as the Prescription Act, 1932 [sic; should be 1832]. It is interesting to note that the common law was not displaced by the Prescription Act, 1932 [sic; should be 1832], but is only supplementary to the common law.

It provides an additional method of claiming an easement but does not interfere with the other two methods. [27] The fiction of the lost modern grant is explained by Jackson, The Law of Easements and Profits at p. 119, as follows: To protect long-established rights from the rigour of the law relating to immemorial prescription the courts invented the fiction of the lost modern grant.

Where a right can be shown to have been enjoyed for twenty years or more the court will assume that it owes its origin to a lost grant, whether that be a deed, a royal charter, an ecclesiastical faculty or a ministerial consent under statute. The court, it has been well observed, 'is endowed with a great power of imagination for the purpose of supporting ancient user'. [28] In order to support a prescriptive claim on the doctrine of prescription at common law, it must be shown to have been "user as of right", that is, having been enjoyed nec vi, nec clam, nec precario.

Nec vi means that enjoyment must not be by violence; nec clam means that the enjoyment must not be secret and finally, nec precario requires that the enjoyment must not be permissive. 29 In my opinion one of the best

definitions or explanations of what is meant by a prescriptive claim at common law is to be found in Cheshire, Law of Modern Real Property (12th Edition), pp. 538-40. Commencing at p. 538 the author refers to the three possible methods by which a prescriptive easement may be claimed and then goes on to say: Each method is based upon identical reasoning. The established principle no doubt is that an easement must be created by deed of grant, since incorporeal hereditaments lie in grant. On the other hand, it is obviously undesirable that a man should be deprived of an easement

long and continuously enjoyed merely because its formal creation by deed is incapable of proof. Therefore, in accordance with themaxim - omnia praesumuntur rite et sollemniter esse acta - the law is prepared to infer from this long enjoyment that all those acts weredone that were necessary to create a valid title. In this way, a claim, founded upon factual enjoyment without interruption by the servientowner, is referred to a lawful origin. Long enjoyment, however, is not in itself sufficient to raise the presumption of a grant.

It must be of a particular nature, and this is sowhether an easement is claimed either by prescription at common law, or under the doctrine of lost modern grant or under thePrescription Act 1832. As we shall see, the user must be as of right and continuous, and only a grant in fee simple will be presumed. All forms of prescription ultimately depend on the acquiescence of the servient owner. Why should long user confer a right protected bythe courts?

The answer is, that if the servient owner has allowed somebody to exercise an easement over his land for a considerableperiod and if he has omitted to prevent such exercise when he might very well have done so, it is only reasonable to conclude that theprivilege has been rightfully enjoyed, for otherwise some attempt to interfere with it would long ago have been made by any owner whopossessed even a modicum of common sense. Fry, J., in one case said:- In my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant restupon acquiescence.

The courts and the judges have had recourse to various expedients for quieting the possession of persons in theexercise of rights which have not been resisted by the persons against whom they are exercised; but in all cases it appears to me thatacquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider ofwhat ingredients acquiescence consists...

I cannot imagine any case of acquiescence in which there is not shewn to be in the servientowner: (1) a knowledge of the acts done; (2) a power in him to stop the acts or to sue in respect of them; and (3) an abstinence on his part from the exercise of such power. User as of right. This stress upon the element of acquiescence gives the clue to the kind of user required for a prescriptive title. Intechnical language, it must be user as of right, or, to use the expression taken by Coke from Bracton, longus usus nec per vim, nec clam,nec precario.

The servient owner cannot be said to have acquiesced in an easement that has been enjoyed vi, clam or precario. Thus, if the dominant owner has used coercion, or if his user is contentious in the sense that the servient owner continually andunmistakably protests against it, there is clearly no acquiescence, and the user, being vi, will not avail the claimant.

Again, there is noacquiescence if the user has been clam, i.e. by stealth, for a man cannot assent to something of which he is ignorant, and the law allowsno prescriptive right to be acquired where there has been any concealment or where the enjoyment has not been open. It must always befound that the servient owner had actual or constructive knowledge of the enjoyment upon which the claimant relies.

Lastly, where theuser has been precario, that is, where it is enjoyed by the permission of the servient owner and the permission is one which he maywithdraw at any moment, it cannot be said that he has acquiesced in the existence of the easement as a matter of right. To ask permissionis to acknowledge that no right exists. In this case an explanation of the user is forthcoming, and an irrevocable right to the perpetualenjoyment of the easement is not consistent with the explanation.

What a plaintiff must show is that he claims the privilege not as a thingpermitted to him from time to time by the servient owner, but as a thing that he has a right to do. (Footnotes omitted) [33] I would adopt the foregoing excerpt as a correct expression of the background to the law applicable to determining the existenceof a prescriptive easement in this province. As Steele J.A. noted, unlike the situation in some other Canadian jurisdictions, the ImperialPrescription Act of 1832 was not re-enacted by Newfoundland’s colonial legislature.

Furthermore, as Oosterhoff and Rayner in Angerand Honsberger: Law of Real Property, 2d ed (Aurora, Ont: Canada Law Book Inc., 1985) at pp. 936-37 point out, the traditionalcommon law prescription rules based on legal memory cannot be set up in Canada as there is no “time immemorial” (the year 1189 beingthe recognized date of legal memory) on which to found it. A court may take judicial notice of the fact that Newfoundland was not“discovered” until 1497. See Abel v. Woodbridge (Village) and York (County) (1917), (ON SC), 37 D.L.R. 352(Ont.S.C.). [34] That leaves prescription by the doctrine of lost modern grant.

The doctrine was initially based on the fiction that after actualenjoyment has been shown for a reasonable period of time, the court may presume that an actual grant had been made at the time whenenjoyment began but that the deed had been lost. The doctrine has been refined over the years.

Anger and Honsberger states at 937: Juries were first told that from user, during living memory, or even during twenty years, they might presume a lost grant or deed; nextthey were recommended to make such presumption, and lastly, as the final consummation of judicial legislation it was held that theywere bound to presume the existence of such a lost grant… As the doctrine developed, it was held that a title might be obtained by anenjoyment of twenty years, which was in reality prescription shortened in analogy to the limitation of the Statute of Limitations (21 Jac.1,c.16 (1623)).

This is the situation as it developed in Newfoundland and Labrador as well, as the early cases of Casey v. Hamlin (1859), 4 Nfld. L.R.285 (Nfld.S.C.) and Murphy v. Murphy (1933), 15 Nfld. L.R. 132 (Nfld.S.C.) attest.

In Casey, the jury was charged that if they came tothe conclusion that the plaintiff or his tenants “exercised an uninterrupted right of way” over the land in dispute for the past twenty years,they were to find for the plaintiff. [35] In this province, therefore, the fictional presumption of lost modern grant has now matured into a clear rule, on analogy withlimitations legislation: that evidence of uninterrupted user, of the nature described in Henley v.

Ryan, for a period of at least twenty yearswith acquiescence (knowledge of the user, coupled with the power to stop it or sue in respect of it, and abstinence from such action orsuit) of the owner of the land, will result in an easement by prescription. [36] Applying that law, it is clear that all of the evidence before the applications judge, in particular the several deeds of conveyance

referring to the existence of the right-of-way, the November 22, 2006 letter from the City Solicitor to one of the Water Street property owners and the evidence of Mr. Griffiths, the Manager of Real Estate Services for the City, unquestionably establishes the historic existence of the right-of-way prior to 1965. The evidence is sufficient to establish a presumption that the rights of the adjoining property owners to use the Laneway were “long and continuously enjoyed” by “users as of right”.

The length of time, the nature of use and the acquiescence of the landowner results in the adjoining property owners and their successors in title having a prescriptive easement by the doctrine of lost modern grant. Apart from the inappropriate reference to “easement of necessity”, noted in paragraph 31 above, the applications judge made no error in concluding that “[a]ll the previous owners enjoyed such a prescriptive easement up to the mid nineteen sixties.” [ 37 ] Indeed, Franklin may be taken to have accepted this.

As the applications judge noted, Franklin argued before him that, “the right of way situated to the rear of the Franklin property and the other adjoining owners on Water Street at 191-197 … was no longer a right-of-way because it was expropriated by the City of St. John’s …”. This assertion can be taken as a clear acknowledgement by Franklin of the existence of the right-of-way prior to 1965.

Nothing put forward by Franklin in his factum, or by counsel for him in oral argument, warrants interference by this Court with the conclusions of the applications judge expressed in the second (the applications judge’s paragraph 61) of the two excerpts set out in paragraph 30 above. [ 38 ] Nevertheless, in oral argument before this Court, Franklin’s counsel asserted that there never was a right-of-way as the Laneway was only created by the building of the parking garage.

This assertion flies in the face of the documentary evidence referred to above and relied upon by the applications judge, in the face of the direct evidence of Mr. Griffiths, and in the face of Franklin’s pleaded position. In particular, the evidence of Mr. Griffiths demonstrates clearly the City’s recognition of the historic rights-of-way exercised by the immediately adjacent property owners including, the existence of a private sewer line and the existence of a power line, neither of which could be maintained in the absence of easements.

Franklin’s argument that there never was a right-of-way must, therefore, be rejected. (ii) What was expropriated? [ 39 ] While Franklin must be taken to have recognized the historic existence of the right-of-way, he contended, in both the court below and this Court, that those rights-of-way were eliminated by the expropriation. The applications judge did not deal with this argument by examining the notices of expropriation and making an explicit determination as to the legal effect of those notices on the property rights now claimed by Sonco and 55402 NL Limited in the Laneway.

Rejection of Franklin’s argument is, however, clear from several other comments of the applications judge. The most explicit is to be found in the comments the applications judge made immediately after he posed the question: Is there a prescriptive easement on the present property? He then wrote: [ 61 ] ... Mr. Franklin relies on the expropriation as taking away the legal basis of any easement of necessity.

He may be correct that the fee simple to the actual alleyway vested in the City due to expropriation; however, any rights built up over the years by adjacent property owners and acknowledged by the City would not have been eradicated. Even if this was the case, it is clear that since 1965, the use of this land in question by the property owners and the successors in title, i.e. the parties to this action, have been accepted by the City of St.

John’s because the City was aware of the pre-existing rights which it continually acknowledged. (Emphasis added.) [ 40 ] There can be no doubt about the effect of the statement in the applications judge’s decision that “any rights built up over the years by adjacent property owners, and acknowledged by the City, would not have been eradicated” due to the expropriation. Rights-of- way continued to exist following the 1965 expropriation.

Unfortunately, the applications judge did not elaborate on his reasons for coming to that conclusion. [ 41 ] Before this Court, Franklin, in his factum, challenges that conclusion and argues that: 11. The first expropriation, along with two other expropriations by [The City], eliminated any rights that [Sonco] and [55402 NL Limited] or their predecessors in title had in the alley. 12.

At the end of the garage expropriation process the only party left with any rights in the alley was [The City]. [ 42 ] There were two notices of expropriation dated the 16th day of July, 1965. [1] The parcel of land described in the notice of expropriation registered at Folios 86 to 92, as noted in paragraph 3 above, contains the whole of the surface land of the Laneway as it now is and precisely describes the Laneway as it was in its earlier larger state. The second notice of expropriation describes the parcel of land “situated and being on the southwest end of a right-of-way from Cliffs Cove”.

The right-of-way shown on the plan attached to that notice is over the Laneway as it was in its earlier larger state. [ 43 ] Each of the two notices of expropriation is directed to I.F. Perlin and Company Limited, Montreal Trust Company, Steers Limited, and National Trust Company. The operative clause of each of the notices explicitly states that it expropriates all the right title and interest of the named parties in and to the lands described in the schedules attached. Clearly, neither of those notices of expropriation impacted any interest of those adjoining property owners in a right-of-way over the Laneway.

They expropriated only the property interests of the parties named in the notices. [ 44 ] One of the abstracts of title, referred to in paragraph 9 above, includes references to a notice of expropriation dated November 16th, 1973, a further notice of expropriation dated May 10th, 1974 and an amended notice dated August 1st, 1974. These are the “other expropriations” referred to by Franklin in his factum. All three notices were directed to the same ten parties including, amongst others, the then owners of the Water Street properties that adjoin the Laneway.

The actual 1973 and 1974 notices of expropriation were not entered into evidence and there is no indication in that abstract of title of exactly what interests are expropriated by those three notices. The only indication in the record before this Court as to what was expropriated by the 1973 and 1974 notices of expropriation is contained in a question, referring to those notices of expropriation, put in the court below by counsel for Franklin to Mr. Griffiths, the City’s Manager of Real Estate, as follows:

Q. Now we weren’t provided with copies of these documents, but I’m led to understand that if we look at the notice of expropriationof November the 16th, 1973, and all these expropriations that took place, this is actually for land that right now today is under thegarage? Is that not correct? A. I presume so, but without actually seeing the document in front of me and looking at the schedules attached, I can’t say with 100percent certainty.

I would note, however, that an examination of all the relevant plans and documents would indicate that the difference between thesurface of the Laneway as it was prior to the 1965 expropriation and the Laneway in its present state appears to be a triangular wedge ofland now under the parking garage building. [45] Except as noted below, nothing in any notice of expropriation available to the Court or in any other documentary evidenceproduced by Franklin, or referred to in his factum or at the hearing of the appeal, indicates that such rights-of-way as were held by theowners of the properties lying between Water Street and the Laneway, prior to the 1965 expropriation of the fee simple in the Laneway,have been in any manner diminished by any expropriating action taken by the City.

That includes the right-of-way held by thepredecessors in title to 55402 NL Limited. The only portion of the right-of-way over the Laneway as it was prior to the 1965expropriation that appears to have been affected by actions of the City since that time is the small triangular portion, referred to in thepreceding paragraph, that is now under the parking garage building.

Thus, it must be concluded that the evidence does not supportFranklin’s argument that the expropriations “eliminated any rights that … [55402 NL Limited] or their predecessors in title had in thealley”. [46] The same may not be true of any right-of-way interests in the Laneway owned by the predecessors in title of properties onwhich the parking garage was built.

Whether the City acquired those properties prior to or subsequent to the 1965 expropriation of thefee in the Laneway land, upon the City becoming the owner of both the dominant and servient tenements as it did sometime prior to the1995 lease-purchase agreement, the interests merged and that particular right-of-way interest ceased to exist. There cannot be a unity ofownership or occurrence of both dominant and servient tenements (See Imperial Oil Limited v. Young (1998), (NLCA), 167 Nfld. & P.E.I.R. 280 (Nfld.C.A.) at para. 15).

While any right-of-way interest in the Laneway (the servient tenement),benefiting the property under the parking garage as the dominant tenement, was not expropriated by the 1965 expropriation notices, itwas eradicated at the point in time when unity of ownership of both tenements vested in the City.

The applications judge erred inincluding Sonco when he decided: [60] … It is the position of this court that [Sonco] and [55402 NL Limited] have a prescriptive easement of necessity, which presentand past owners have exercised continuously over many years… [65] In the present case, the dominant tenements include [Sonco] and [55402 NL Limited] acquiring a prescriptive easement. Theservient tenement is the owner of the right-of-way, the City of St.

John’s… (iii) The status of the portion of the Laneway conveyed by the City to Franklin and in respect of which the City refused thedevelopment permits [47] Apart from Franklin, only two of the owners of the properties abutting the Laneway are before the Court in this proceeding so itis inappropriate to make any determination as to the extent of the interests of the others in the Laneway.

Clearly 55402 NL Limited andits predecessor in title, Geoffrey Hiscock, would have acquired any pre-1965 right-of-way interests of their predecessors in title eventhough the deed of conveyance from Hiscock to 55402 NL Limited does not specifically say so. Sub-sections 3(1) and (2) of theConveyancing Act, RSNL 1990, c. C-34 read as follows: 3.

(1) A conveyance of land shall be considered to include, with the land, all buildings, erections, fixtures, commons, hedges,ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights and advantages appertaining or reputed to appertain tothe land, or a part of the land, or at the time of conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of,or appurtenant to, the land or a part of the land.

(2) A conveyance of land having houses or other buildings on it shall be considered to include houses, or other buildings, allout-houses, erections, fixtures, cellars, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges,easements, rights and advantages appertaining, or reputed to appertain, to the land, houses or other buildings conveyed or either of them,or a part of them. [48] By operation of those statutory provisions, 55402 NL Limited has the right-of-way interest in the Laneway that it asserts, andthat the City, as the former owner of the freehold in the Laneway property has always acknowledged.

That right was enforceable asagainst the City and it is enforceable as against the assigns of the City, one of which is Franklin in respect of the small portion of theLaneway land conveyed to him by the City in 2006, in respect of which he is seeking the permits. Having so found, it is not necessary toconsider whether the user activities subsequent to 1965 of 55402 NL Limited and its predecessors in title would have resulted in theiracquisition of a prescriptive easement in any event. [49] The other adjoining owner that is a party to this action is Sonco.

Its predecessor acquired, initially, a leasehold interest in theparking garage from the City as late as 1995. When, in 2002, the parking garage property was conveyed to them by the City, which alsoowned the freehold in the Laneway for some years prior to conveying the parking garage property to Sonco’s predecessor, there was noright-of-way to pass by operation of

section 3 of the Conveyancing Act as the ownership of the dominant and servient tenement hadmerged in the City some years before. The City did, however, specifically convey to Sonco, with the parking garage property, a right-of-way over a portion of the Laneway, as described in paragraph 4 above.

That does not include any part of the portion of the Lanewayland that was conveyed by the City to Franklin in 2006, in respect of which Franklin is seeking the construction permits. [50] Nevertheless, the evidence establishes that the City tolerated acquisition of rights-of-way interests subsequent to the 1965expropriation by any owner of a property interest adjacent to the Laneway. From 1995 onward, that included Sonco and its predecessor. As noted in paragraph 28 above, Sonco’s position is that “… since expropriation in 1965, Sonco and the owners of the Water Street

properties have gained property rights in the form of a prescriptive easement over the Right of Way that has run with the land up to thepresent date.” While that assertion may be valid in respect of the owners of the Water Street properties, Sonco cannot be included. Sonco’s predecessor first acquired its property interest in 1995. When these proceedings were commenced Sonco and its predecessorshad been in possession of the parking garage for only 11 years. In Carew v. Rockwood (1993), (NL SC), 112 Nfld. &P.E.I.R. 299 (Nfld.S.C.T.D.), L. D.

Barry J. succinctly summarized the effect of the comments of Steele C.J.D.C. on the nature of useand the time required to establish an easement by prescription. Barry J. wrote: [20] … In Henley v. Ryan (1980), 25 Nfld. & P.E.I.R. 431 (Nfld. Dist. Ct.), Steele C.J.D.C. reviewed the authorities extensively andpointed out that, to support a prescriptive claim at common law, one must show "user as of right", which has been enjoyed neither byviolence, nor secretly, nor with permission (nec vi, nec clam, nec precario).

The user must be continuous for a period long enough togive rise to a presumption that the right to use existed from time immemorial or, at least, to the presumption that the right arose from alost modern grant. Both presumptions are legal fictions. [21] Steele C.J.D.C. left open whether 20 years of user was necessary at common law or whether it should only be regarded as aconvenient guide. He held that, in any event, 14 years of user was not a sufficiently long period to raise any presumption in favour of theone claiming the prescriptive right.

He also, at p. 438, pointed out that only a grant in fee simple will be presumed. Clearly, the 11 years of use of the Laneway by Sonco is not sufficient to establish a prescriptive easement over the whole of theLaneway. [51] It should be noted, however, that by the time the City sold the parking garage to the predecessor of Sonco, in 2002, Sonco’spredecessor had held a property interest in the parking garage land since 1995 and the right-of-way over the whole of the Laneway was“reputed” to belong to each of the adjoining property owners, including Sonco’s predecessor.

Section 3 of the Conveyancing Actincludes “rights appertaining or reputed to appertain” to property being conveyed. Whether that circumstance, together with the fact thatthe City was tolerating right-of-way use by all properties adjoining the Laneway, including Sonco, and the fact that the City conveyedthe portion of the Laneway, adjacent to his property, to Franklin subject to any right-of-way interest, would have the effect of Soncoenjoying a right-of-way over the whole of the Laneway, was not argued and does not have to be decided to dispose of this appeal.

Forthat reason I decline to consider the question but would note the circumstance. It is sufficient, for disposition of the appeal, that 55402NL Limited unquestionably has a right-of-way interest over the whole of the Laneway and refused consent for the permits requested byFranklin. [52] The first declaration which Franklin seeks, that no easements survived the expropriation of 1965 or came into existencefollowing expropriation, must, therefore, be refused.

The evidence establishes, and the law affirms, that the right-of-way interest in theLaneway of the predecessors of at least one of the adjoining property owners, 55402 NL Limited, survived the 1965 expropriation. Those rights continued to be exercised and tolerated by the City subsequent to the 1965 expropriation. Without deciding whether they door do not, because they are not before the Court, it must be recognized that other owners of adjoining properties may also enjoy suchrights. (

b) As to the second declaration sought: That [Franklin] is not subject to the Right of Way Agreement and it is not binding onFranklin and his successors and assigns. [53] It is not appropriate for this Court, and it would not have been appropriate for the applications judge to make such a declaration,primarily because all parties to that agreement were not before either court. In that circumstance it was and is not appropriate to drawany conclusions as to the legal status of the Right of Way Agreement or whether or not it is binding on any one or more of the parties ortheir successors and assigns.

The conclusions expressed in paragraphs 86 and 87 of the reasons of the applications judge, quoted inparagraph 14 above, must be considered to have been erroneously drawn. As well, all except the fifth, which relates only to costs, of thefive items of the formal order of the court below, set out in paragraph 15 above, are founded on determinations respecting the Right ofWay Agreement or bear directly on its court ordered implementation. Thus, the applications judge erred in ordering the first four itemsof the formal order. Accordingly, they are set aside.

I would note, without deciding, that the Right-of-Way Agreement, on its face, doesnot appear to create an entitlement to a right-of-way interest in the Laneway. Rather, it appears to be an agreement as to how the partiesclaiming rights-of-way interests agree they will use, and tolerate use by the other parties, of the claimed right-of-way. Thus, its onlysignificance in these proceedings is to provide evidence of acknowledgement by the parties to the Right of Way Agreement of theexistence of the right-of-way each of the parties to it has claimed.

In all the circumstances, the requested declaration must, therefore, berefused. (

c) As to the third declaration sought: That the [City] has no authority to insist on the consent of the adjoining propertyowners before dealing with the permit request of [Franklin] to construct an emergency exit. [54] Unquestionably, one at least, 55402 NL Limited, and possibly all, of the owners of the Water Street properties lying betweenWater Street and the Laneway, enjoy rights in the Laneway including the small portion of it conveyed by the City to Franklin. 55402 NLLimited refused consent.

A right of way is an interest in land which permanently affects the rights of property of the servient anddominant tenements (see Kimbrell v. Goulden, 2006 NSCA 102, 248 N.S.R. (2d) 96 at para. 37). [55] Being aware of the existence of that right-of-way property interest, the City could not give permission for use of the land byFranklin in a manner that would interfere with that right-of-way property interest without the consent of its owner or owners. In fact,regulation 5.2.3 of the City’s Development Regulations specifically requires either application by or consent of such a property owner.

Its right-of-way over the Laneway is the property of 55402 NL Limited and it may be that other Water Street property owners own thatright-of-way property interest in common with 55402 NL Limited. In that circumstance the City’s action in refusing to proceed withFranklin’s applications for a permit, in the face of explicit denial of consent of even one of the adjoining property owners having rights,was entirely justified.

Refusing to process Franklin’s applications for permits to carry on works that could impact other property rightsin the Laneway was consistent with the City’s by-law requirements and its practices. The requested declaration, that the City had noauthority to require consent of the adjoining property owners before dealing with Franklin’s applications for permits, must be refused.

(

d) As to the fourth declaration sought: That the City of St. John’s is ordered to deal with the permit requests of the Appellant to construct emergency exits and other permissions behind 193-195 Water Street and which are on land sold to [Franklin] by the [City]. [ 56 ] Obviously, the conclusions expressed above in respect of the first and third declarations sought determine the Court’s response to this requested declaration. The small parcel of land behind Franklin’s hotel building, sold by the City to Franklin in 2006, is part of the land over which the present Laneway runs.

The deed by which that small parcel of land was conveyed by the City to Franklin specifies that the conveyance is: SUBJECT TO any existing rights, including rights of way and an easement for a private sewer line, held by any of the owners of properties in the immediate area of the laneway, of which, the subject land forms a part and also SUBJECT TO a power line easement in favour of Newfoundland Power Inc. for maintenance of an existing underground power line. [ 57 ] Franklin’s argument that such a generic reference is too vague must be rejected.

Section 3 of the Conveyancing Act , quoted in paragraph 47 above, explicitly provides that even rights “reputed to appertain to the land” are considered to be included in a conveyance. The rights of 55402 NL Limited are derived from the operation of the statute. They are not established or defined by the qualification on the habendum in the conveyance from the City to Franklin. That qualification, essentially, ensures that Franklin is made aware that the title he is taking to that parcel of land is not absolute.

Rather, it is subject to the right of any party entitled to use the Laneway as a right- of-way, and Franklin’s attention is thereby drawn to the fact that the City is not covenanting title as beneficial owner. 55402 NL Limited, at least, is one such party that is entitled to the right-of-way interest. It should also be observed that in the excerpt from his letter of December 8, 2005 to the City seeking to purchase the land, quoted in paragraph 7 above, Franklin specifically undertakes that “[he] would be bound by all legally based ROW that the owners of 197-199 Water Street have”.

The owner of 197-199 Water Street at the time was Hiscock who later sold to 55402 NL Limited. [ 58 ] The City was acting lawfully, in accordance with its rules and regulations when it refused to process the application for a permit until Franklin met the requirement that he provide proof of the approval of the adjoining property owners. The fourth declaration sought must, therefore, also be refused. That being so, it is unnecessary to consider the further argument of the City that, by reason of Franklin having the alternative remedy of appeal under the Development Regulations, mandamus would not lie.

The refusal of the applications judge to grant mandamus must be affirmed. (

e) As to the fifth declaration sought: That the order as to costs is rescinded. [ 59 ] In light of the foregoing conclusions respecting the correctness of the applications judge refusing mandamus , which was the remedy sought in the court below, and considering the order respecting costs on this appeal, there is no basis on which this Court could justify rescinding the order as to costs made by the applications judge.

The net result of the proceedings in the court below was that Franklin’s request for mandamus was refused and the right-of-way claimed by 55402 NL Limited remained unaffected by the proceedings below or on appeal. The right-of-way claimed by Sonco has been affected, but perhaps not entirely eliminated. The requested declaration respecting the costs order in the court below is, therefore, also refused. [ 60 ] With respect to costs on the appeal, it is noted that the City argues that it should not be liable for costs and does not seek costs if it is successful.

The other parties all seek costs. [ 61 ] This appeal has produced an unusual result. In a sense, Franklin has been successful on this appeal in that all items in the formal order, dealing with substantive issues, have been set aside. It should be remembered, however, that they were not set aside for reasons arising out of grounds argued by Franklin. Rather, it was because, in the circumstances it was improper for the applications judge to deal with such issues.

As well, Franklin must be considered to have been unsuccessful on this appeal in the sense that all of the declarations he requested as a specific remedy, and in particular the requested mandamus , have been refused. [ 62 ] Similarly, it cannot be said that either Sonco or 55402 NL Limited were successful in their specific arguments on appeal. They framed the issues in the manner set out in paragraphs 28 and 29 above. Neither party can be said to have been successful in its specific submissions.

Although the ultimate objective of 55402 NL Limited may have been achieved, it was for entirely different reasons than those argued by 55402 NL Limited. Sonco cannot be said to have achieved any success on this appeal. [ 63 ] Notwithstanding that the primary responsibility to frame a proceeding, whether an originating application or an action, rests with the initiator, the other parties are not without some responsibility to ensure that issues are properly joined and that the necessary parties are before the Court.

Had all parties approached the proceedings below in that manner, this appeal may well have been avoided. For that reason, considering all the foregoing, it does not seem just to order that Franklin pay the other parties’ costs in this Court in addition to those already ordered in the court below. Accordingly, each party shall bear its own costs on the appeal. CONCLUSION [ 64 ] For the foregoing reasons, Franklin’s appeal is allowed in part. The first four items in the formal order, which relate to substantive issues, are set aside. The fifth item respecting costs below is affirmed.

The appeal is dismissed to the extent that declarations requested by Franklin to replace those contained in the formal order, and set out in paragraph 16 above, and the mandamus are refused. There will be no order as to costs on appeal.

_____________________________ C.K. Wells J.A. I concur: J. D. Green C.J.N.L. I concur: M. F. Harrington J.A. [1] The Registry stamp on one indicates that it was registered on the 24th day of August, 1965 at 12:55 o’clock p.m. in Volume 765 at Folios 86 to 92. The Registry stamp on the other indicates that it was registered on the 24th day of August, 1965 at 12:55 o’clock p.m. in Volume 760 at Folios 93 to 99. Thus, it is obvious that the reference to the volume number is in error on one or other of the Registry stamps. No issue was made of it at the appeal. That error is of no consequence to the outcome of these proceedings.