Schnare v. Schnare, 2022 NSSC 32

SUPREME COURT OF Nova Scotia Citation: Schnare v. Schnare , 2022 NSSC 32 Date: 20220215 Docket: Bridgewater , No. 494736 Registry: Halifax Between: David Schnare Applicant v.

Scott Schnare, John Cleveland and Gordon Cleveland Respondents Judge: The Honourable Justice Diane Rowe Heard: March 22, 2021, in Bridgewater, Nova Scotia Final Written Submissions: Oral Decision: April 27, 2021 October 22, 2021 Counsel: Jonathan Cuming, for the Applicant Brent Silver, for the Respondents ORALLY: [ 1 ] The Applicant, David Schnare, requests that the Court make an Order of a “declaration of the legal status or right of a person” pursuant to Nova Scotia Civil Procedure Rule 38.07.

The effect of the declaration sought would be definitive as to the Respondent Scott Schnare’s currently asserted interest in a portion of shoreline property, within a parcel located at Deep Cove, Upper Blandford, (the “Shore Land”). David Schnare asserts he has an overriding constructive interest, based on colour of title, to the entirety of the parcel. ISSUE: [ 2 ] Have any of the Respondents ever acquired an interest, by operation of the doctrine of adverse possession or otherwise, in the Shore Land?

OVERVIEW [ 3 ] To begin, both David Schnare and Scott Schnare acknowledge that neither has good paper title to the Shore Land. It has never been the subject of a Quieting Titles Act , RSNS, 1989 c. 382 proceeding. The Court was not provided with an abstract of title by either party during the course of the application, although extensive affidavits, oral testimony, photographs and maps were placed in evidence by the parties. [ 4 ] I will note that the Respondents did indicate at the close of the evidence during the hearing an intention to ask the Court to make an Order pursuant to the Quieting Titles Act .

This intention was later abandoned in the subsequent written closing submissions of counsel for the Respondents filed with the Court. They now request that, in the event that the Respondents are successful in dismissal of the application, the status quo continue. [ 5 ] This application does not seek an Order to clear title to the Shore Land and a declaration to establish title in it to the benefit of David Schnare and his brother.

David Schnare, instead, asks that the Court declare that Scott Schnare does not have any valid interest in a portion of the Shore Land, whether acquired by Scott Schnare’s acquisition of an interest from the Cleveland brothers, who had themselves asserted ownership to the area under dispute, or acquired by adverse possession established from the time that Scott Schnare began his asserted exclusive use and occupation of the land. [ 6 ] The property currently is identified in the online Property Registry as PID 60605318. It has been assigned an Assessment

Account Number, as it was included as part of the assessment of the former lands of the Applicant’s parents, that are located across the highway from the Shore Land. [ 7 ] David Schnare asserts that he acquired a joint tenancy interest with his brother William Schnare, pursuant to a Deed from their parents dated December 20, 2001. He has been paying the municipal taxes on the Shore Land since, as his parents did before. [ 8 ] David Schnare has also been sending regular demands for rent for use of the lands and structures to Scott Schnare, which are ignored.

David Schnare recalls that Scott Schnare was permitted by David’s father to put his boat on the land, while he was fishing, with Scott Schnare then taking up more over time. [ 9 ] Scott Schnare, in response, maintains he has a legal interest in the lands he uses and occupies. Scott Schnare submits that he began using the Shore Land, initially on the permission of the Cleveland brothers, in the late 1980s.

Scott Schnare states that this permission was supported by a later informal attempt to convey the Shore Land to him in 1997, as he acquired an interest by barter with the Clevelands, with payment of $100 worth of lobster. This conveyance was then confirmed by deeds made in 2010 and 2018, respectively.

Scott Schnare, submits that, historically, the Cleveland family were known locally as the owners of that portion of the Shore Land that he currently occupies. [ 10 ] Scott Schnare, John Cleveland, and Dalton Meisner all executed and filed Statutory Declarations dated April 24th, 2015 setting out their evidence concerning the existence of an interest by the Cleveland family in that portion of the Shore Land.

Annie White also provided a Statutory Declaration dated December 4, 2020 setting out her knowledge concerning the use and ownership of the Shore Land. [ 11 ] They were all cross examined on their affidavit evidence concerning a potential chain of ownership, use and occupation of the land, and presented compelling evidence about their community and experiences in regard to the lands. [ 12 ] The Respondents also obtained the affidavit of Lester Berrigan, a Registered Nova Scotia Land Surveyor, who had prepared a plan of survey of the lands the witnesses indicate was formerly known as James’ Island or “Jimmie’s Island” (the “Berrigan Plan”).

His evidence, when paired with the evidence of witnesses for both the Applicant and Respondent, indicate that these coastal lands were initially used for fishing berths and fish processing by community members generations ago. [ 13 ] I find that the evidence, in total, established that over time, each family began to assert some level of proprietary interest to the Shore Land, while the lands were subject to rapid erosion. What may have started as a roughly communal use of formerly more expansive shore lands, changed as the land eroded.

The use of the lands changed as well, as did the waters adjacent to the shore, and offshore fishing practices. [ 14 ] At some indefinite time, though likely many decades ago, each local family accepted that certain other families in the joint community had established a zone of interest in the Shore Land and its use, with each entering into informal or formal attempts to manage access and then create title to the Shore Land remaining, which is at a premium. [ 15 ] The remnants of the former Jimmie’s island, its lands now shifted by the sea and merged into the coastal area hugging the roadway, are the disputed Shore Land.

A portion of the foreshore that is Crown land, from the ordinary mean high water mark to the waters edge, moves ever upward as erosion and rising sea levels chip away at it. The limits of the respective interests of the parties in the Shore Land are, as a result, difficult to establish, given the evidence before me on the application. [ 16 ] Mr. Berrigan’s evidence was of assistance to the Court in setting out context and meaning for the various landmarks used within the Plan of Survey.

Some of the landmarks referenced are in relation to boat launches, or skips, used by the Schnares, the Meisners or the Cleveland families.

They are also linked to past fishing practices, such as the tanning block used by fishers on shore. [ 17 ] Scott Schnare, and the co-respondent Clevelands, submit that Scott Schnare has been in exclusive possession of the lands, which are the remainder of Jimmie’s Island lying between the western sideline of the “skid way” on the Berrigan Plan and all lands west of this point since the late 1980s and continuing to this day. [ 18 ] Numerous references to ongoing maintenance of structures and use of the land was put forward by Scott Schnare.

That was corroborated by Annie White, as well as the Applicant David Schnare, who referred to Scott as like a “Little General” since he began use of the Shore Land. David Schnare indicated an ongoing concern with the state of repair Scott Schnare maintained on the disputed lands.

Scott Schnare is apparently participating actively in the local fishing industry, with all the equipment and materials hauled onshore and in sheds accordingly. [ 19 ] While there may be contention between the parties on the meaning and location of the launch and skid way as referenced in the Berrigan Survey, and where that may place a limit between the two in regard to the totality of the parcel, Scott Schnare does not dispute that David Schnare, with his brother, may have an interest in the remainder of the property outlined within the Berrigan Plan. [ 20 ] This acknowledgement of a limited interest in the parcel is in response to David Schnare’s own claim upon the entirety of the parcel, as he is requesting that the Court apply the law concerning constructive possession based on colour of title, with a partial use, subsuming the whole. [ 21 ] Scott Schnare, though, does not assert an interest in the other portions of the lands claimed by David Schnare.

David Schnare’s position is that his assertion of constructive possession on colour of title is strong enough to supplant any responding claim by Scott Schnare to any property interest, whether it can be based on Scott Schnare’s possession of the lands on the basis of colour of title acquired from the Clevelands, or based on a potential adverse possession claim Scott may make, that could date from the 1980s. [ 22 ] The Court is being asked effectively to determine whether one of the two parties may assert a stronger claim, at an unknown time in a different proceeding, to a grant of clear paper title.

The Crown is not a party to this application, as there is not a proceeding filed pursuant to the Quieting Titles Act . Both parties admit that they do not hold clear paper title to the Shore Land.

[ 23 ] David Schnare disputes Scott Schnare’s asserted interest in the application. However, David Schnare is not asking the Court to make a decision establishing his own title to the entirety of the Shore Land, but rather for the Court to make a positive finding that the Respondents have never acquired any right. [ 24 ] If David Schnare had instead sought to obtain a certificate of title pursuant to the Quieting Titles Act , with Scott Schnare as a party, it is open for David Schnare to seek an order for

summary judgement in relation to Scott Schnare’s claim. The law concerning a motion for

summary judgment resonates in a way with this application, as the Court is essentially being asked to determine whether Scott Schnare’s asserted legal interest has a reasonable chance of success, if it were to be put before the Court squarely in a proceeding. That is not the case in this application, though. [ 25 ] David Schnare submits that his evidence concerning his own “colour of title” is sufficient, and that his use of the property demonstrates constructive possession such that the title he asserts subsumes the entirety of the parcel, to the exclusion of Scott Schnare.

David Schnare’s evidence alludes to the title from his father to his brother and himself, tax payments, (which are afforded a low evidentiary basis as an indication of property ownership), an attempted sale of the entire parcel, and his occasional use, which is both intermittent and historical with his family when he was a younger person. There was no clear evidence of his own current and ongoing use of the land.

The evidence indicates the intensive use by David Schnares’ family of the Shore Land when the lands were part of the family’s fishing activity is largely in the distant past, with more recreational use and occasional visits being referenced. [ 26 ] As was outlined in the Mason v.

Nova Scotia (Minister of Justice), 1999 NSJ 63 case, the Court of Appeal quoted Anger and Honsberger in the Law of Real Property, 2d Edition at para 31, and I note this portion of that paragraph as follows: Where a person having paper title to land occupies part of it, he is regarded in law as being in possession of the whole unless another person is in actual physical possession of some part to the exclusion of the true owner. … [ 27 ] David Schnare also relies in argument on the decision of the Nova Scotia Court of Appeal in Cook v.

Podgorski 2013 NSCA 47 which enumerates several legal principles for a trial court to consider when making a decision on a claim of adverse possession.

With respect, in that matter, the plaintiff Podgorski was requesting that the Court make a positive finding to his claim to land based on his own evidence of adverse possession, whereas in this matter David Schnare is asking the Court to find that the Respondent Scott Schnare can not establish, on the evidence, a claim to an interest in land, whether claimed by colour of title or adverse possession, in the event Scott Schnare ever brought such a claim forward. [ 28 ] Podgorski summarizes the relevant principles and includes at para. 49(2) that:

(2) To oust the legal owner, it is necessary to establish actual adverse occupation which is exclusive, continuous, open and notorious for the requisite period of 20 years… [Emphasis added] With the 20 years running from the date of the claim of adverse possession being made. [ 29 ] I will also note that the term “adverse” is not within that portion of the quote, as it is the acts which exclude others openly that are deemed to be collectively adverse to others. [ 30 ] The Podgorski decision concerns a claim of adverse possession as against a true owner.

While the principles set out by the Nova Scotia Court of Appeal in the decision are of assistance in canvassing the law of adverse possession generally in this matter, I am actually being asked by a purported owner to determine whether another person has ever acquired an interest in the land in the event they were to make a claim by way of adverse possession, or by actual possession based on colour of title. [ 31 ] I am satisfied on the evidence before me, though, that in the event that Scott Schnare chose to pursue a claim to establish colour of title, or in the alternative, adverse possession of the lands, that he may potentially succeed in regard to either claim. [ 32 ] David Schnare relies upon his own assertion that his father Donald Schnare was the source of permission for Scott Schnare to enter upon and use the land.

It was submitted that if we accept that this permission was granted by Donald Schnare, that doing so would “stop the clock” for Scott Schnare to successfully advance a claim in adverse possession on the portion of lands he is occupying in excess of the requisite 20 years. However, David Schnare is the only source of evidence on this point. [ 33 ] There is evidence to support a claim that the Clevelands had assumed an acquired title, based on adverse possession, to the lands that were formerly James’ Island.

This was corroborated by the evidence of John Cleveland, Annie White, and Dalton Meisner, as well as Scott Schnare. [ 34 ] I am satisfied that on the evidence before me that Scott Schnare and Gordon Cleveland entered into an informal agreement in 1997. These agreements were later supported by statutory declarations and subsequent deeds.

There is no corresponding evidence that Scott Schnare has abandoned the use of the land, and there is evidence that his open and notorious use is ongoing and intensive as he participates in the local fishery. [ 35 ] While Gordon Cleveland was not responsive to the application in the hearing, his brother John Cleveland who is an interested party, and Annie White, both corroborated this account in support of Scott Schnare’s asserted interest in the land.

The Respondents submit that their predecessors George Cleveland and Miram Cleveland had continuous occupation since the 1940s, with this aspect of the evidence spoken to by Dalton Meisner. [ 36 ] All of the witnesses collectively created as accurate a record as can be put forward on the history and use of the Shore Land, as it was then, at least 50 years ago, and as it is now.

I accept the Respondents’ position that they have demonstrated that this evidence may be sufficient for a Court to find there is a potentially valid claim by the Respondents for possessory title, while mindful that I am not being asked to go further and make such a definite finding of title.

[ 37 ] Where a person established evidence of paper title, even if that paper title is found to be invalid, paired with actual physical possession of a part of land, used to the exclusion of others, for a period in excess of twenty years, then they may establish a claim in adverse possession to the land as against a rightful owner with valid paper title. As this Applicant is also relying upon a “colour of title” claim, with use and possession, to the lands, the burden is even higher than it would be upon a person with valid paper title.

In this matter, the Applicant’s evidence should demonstrate on a correspondingly high level the strength of their claim to the disputed portion of land that is currently in use, as it is subject to a competing claim of another similarly situated litigant. In that sense, the evidence provided by the Applicant does not supplant the Respondents competing evidentiary basis for a claim.

CONCLUSION [ 38 ] This application does not seek a declaration of the rights of the Applicant, but rather a declaration that the responding party has acquired no rights in the Shore Land, whether by adverse possession or actual possession, with a basis in colour of title. [ 39 ] The Applicant has not succeeded in demonstrating to the Court that the Respondents have no potential claim, whether in adverse possession or actual possession with colour of title, such that it can issue an unequivocal declaration that the Respondents have not acquired any right to date.

The scope and nature of the Respondents’ potential interest is indeterminate in this proceeding.

The Respondents may be able to assert an interest in land, at some future time in another proceeding, to establish clear title. [ 40 ] The application is dismissed. [ 41 ] A proceeding to determine title, and the scope of such title, as between the parties, and potentially the Crown, as this is ungranted Crown land, is more appropriate for an Order setting out the property interests asserted by the parties. [ 42 ] I would ask that counsel for the parties make written submission on costs for my consideration, to be provided no later than two weeks after the date of this decision. Rowe, J.