Bowaters v. Pelley Ent., (1977) 12 Nfld. & P.E.I.R. 251 (NFCA)

JudgeFurlong, C.J.N., Morgan and Gushue, JJ.A.
CourtNewfoundland Court of Appeal
Case DateApril 29, 1977
JurisdictionNewfoundland and Labrador
Citations(1977), 12 Nfld. & P.E.I.R. 251 (NFCA)

Bowaters v. Pelley Ent. (1977), 12 Nfld. & P.E.I.R. 251 (NFCA);

    25 A.P.R. 251

MLB headnote and full text

Bowaters Newfoundland Limited v. Pelley Enterprises Limited and Pelley

Indexed As: Bowaters (Nfld.) Ltd. v. Pelley Enterprises Ltd. and Pelley

Newfoundland Supreme Court

Court of Appeal

Furlong, C.J.N., Morgan and Gushue, JJ.A.

April 29, 1977.

Summary:

This action arose out of the plaintiff's claim against the defendants for damages for trespass. The Government of Newfoundland granted a timber licence to the Anglo-Newfoundland Development Company Limited giving the company the right to hold certain land for the purposes of cutting timber for 99 years for an annual rent plus royalties on timber cut. A portion of the timber licence was exchanged for another with the plaintiff, Bowaters Newfoundland Limited. The Defendants entered the land held under the plaintiff's licence and cut and removed timber for the purpose of building a fishermen's centre under a Government contract. The plaintiff brought an action against the defendants for damages and an injunction. In a judgment reported 5 Nfld. & P.E.I.R. 233 the Newfoundland Supreme Court allowed the action and awarded the plaintiff $500.00 damages and granted an injunction against the defendants enjoining them from trespassing upon the whole of the timber licence, not just the plaintiff's portion. The defendants appealed.

The Newfoundland Court of Appeal allowed the appeal in part. The Court of Appeal held that the injunction granted was too broad and should be restricted only to the plaintiff's interests. See paragraphs 20-22.

The Court of Appeal held that the plaintiff had the right to apply for an injunction with regard to the lands, because it was a sub-licencee and was entitled to possession of the land. See paragraphs 5-9.

Crown - Topic 6850

Crown lands - Public use of Crown lands for purpose of the fishery - The Crown in a timber licence to a company reserved the right of any person to cut timber for the "purposes of the fishery, for building vessels, for masts, for poles, for erecting fish flakes," etc. - The defendant contractor cut timber on the land for the construction of a centre for fishermen under a government contract - The Newfoundland Court of Appeal held that the timber was not cut for the purposes of the fishery and held the defendant liable for damages - See paragraphs 14-18.

Damages - Topic 4281

Torts affecting land - Plaintiff with limited interest - Statutory restriction on use of land - The Crown Lands Act, R.S.N. 1970, c. 71, s. 130, reserved to the Crown timber on the plaintiff's property within 333 feet of a road - The defendant trespassed and cut timber on the 333 foot strip - The Newfoundland Court of Appeal held that the plaintiff owned the timber and was entitled to damages notwithstanding that the Crown was entitled to the timber when cut - See paragraphs 11-13.

Injunctions - Topic 4503

Operation of injunctions - General principles - Operation limited to plaintiff's interests - The plaintiff took an assignment of a timber licence respecting a portion of a certain lot of Crown land - The defendant trespassed on the plaintiff's portion and cut timber - The Newfoundland Supreme Court enjoined the defendant from trespassing on the whole of the lot - The Newfoundland Court of Appeal held that the injunction was too broad and must be limited only to the plaintiff's portion of the lot and not the whole lot - See paragraphs 20-22.

Injunctions - Topic 4683

Operation of injunctions - Enjoinable acts - Exclusion of lawful acts - The plaintiff held a timber licence on Crown land subject to the right of other persons to cut timber for public works with the permission of the Minister - The defendant cut timber on the land - The Newfoundland Supreme Court granted an injunction to the plaintiff restraining the defendant from all cutting - The Newfoundland Court of Appeal held that the injunction was too broad and should expressly exclude cutting for public works with permission of the Minister - See paragraphs 19-24.

Injunctions - Topic 6930

Trespass by cutting on timber land - The defendant trespassed on the plaintiff's leasehold timber land and cut timber - The Newfoundland Court of Appeal granted an injunction restraining the defendant from further cutting - See paragraphs 19-24.

Torts - Topic 3032

Trespass to land - Sufficiency of possession of plaintiff - The plaintiff took an assignment for an indefinite term of a timber licence on Crown land - The defendant entered the land and cut timber on it - The Newfoundland Court of Appeal held that the plaintiff was a sub-licencee and was entitled to possession of the land - The Court of Appeal held that the plaintiff had the right to obtain an injunction against further trespasses by the defendant - See paragraphs 5-9.

Cases Noticed:

Phillips v. Glenwood Timber Co. (1897-1903), 8 N.L.R. vii (appendix)(P.C.), appld. [para. 8].

Statutes Noticed:

Crown Lands Act, R.S.N. 1970, c. 71, sect. 73 [para. 7]; sect. 130 [para. 12].

Counsel:

Clyde Wells, for the plaintiff-respondent;

Derek Greene, for the defendants-appellants.

This case was heard on June 10, 1976, at St. John's, Newfoundland before FURLONG, C.J.N., MORGAN and GUSHUE, JJ.A., of the Newfoundland Court of Appeal.

On April 29, 1977, MORGAN, J.A., delivered the following judgment of the Court of Appeal:

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