Bowers et al. v. Bowers, (2002) 208 N.S.R.(2d) 297 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 20, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 208 N.S.R.(2d) 297 (SC);2002 NSSC 206

Bowers v. Bowers (2002), 208 N.S.R.(2d) 297 (SC);

 652 A.P.R. 297

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. NO.010

Blanche Bowers and The South West Port Mouton Community Cemetery Society, a Society Incorporated under the laws of the Province of Nova Scotia (plaintiffs) v. Hollis Bowers and Tracy Bowers (defendants)

(SBW. 4457; 2002 NSSC 206)

Indexed As: Bowers et al. v. Bowers

Nova Scotia Supreme Court

Stewart, J.

September 20, 2002.

Summary:

The plaintiffs each claimed paper title to two abutting parcels of land. The plaintiff Cemetery Society sought an order enjoining the defendants from further trespasses onto the land. The plaintiff Bowers sought nomi­nal damages for trespass. The defendants claimed paper title to both parcels or, alter­natively, title by adverse possession.

The Nova Scotia Supreme Court held that the plaintiffs established paper title to the two parcels. The defendants' adverse pos­session claim was dismissed respecting the Cemetery Society parcel. However, the defendants did acquire title by adverse pos­session respecting the parcel to which Bowers held paper title.

Real Property - Topic 4749

Title - Boundaries - Determination of - By acreage stated in deed - The Nova Scotia Supreme Court stated that in determining the boundaries of lands conveyed by deed, a reference in the deed to "an acre more or less", not being a specific acreage, was afforded limited priority in determining the land conveyed - See paragraph 93.

Real Property - Topic 5601

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - Ad­verse possession defined - The Nova Scotia Supreme Court stated that acquisi­tion of title by adverse possession required proof of possession for the 20 year statu­tory period that was "actual, open, visual, con­tinuous, exclusively exercised and not equivocal, occasional or for a special or for a temporary purpose" - The court also referred to the character, sufficiency and quality of such possession - See para­graphs 97 to 99.

Real Property - Topic 5631

Title - Extinguishment, prescription and adverse possession - Possession - Acts con­stituting possession - The defendants claimed title to a parcel of land abutting a cemetery by virtue of adverse possession - The Nova Scotia Supreme Court rejected the claim - There were no acts of pos­session involving gardening, raising ani­mals, disposing of waste, construction or physical occupation - The only evidence of possession was intermittent cutting of a small number of trees for firewood - The court stated that "the acts of possession both in their character and sufficiency were not adverse to the true owner and were no more than intermittent acts of trespass until a significant act occurred in 1994 when the trees were cleared off [by the defendants]" - See paragraphs 101 to 106.

Real Property - Topic 5631

Title - Extinguishment, prescription and adverse possession - Possession - Acts con­stituting possession - The defendants claimed title to a parcel of land by virtue of adverse possession - The Nova Scotia Supreme Court held that having regard to the exact nature, character, value and situation of the land in dispute, the de­fendants' aggregate multi-purpose acts of possession were sufficient to constitute adverse possession - A portion of the land was used by the defendants as a garbage dump - Two other dumps were present, as well as an outhouse - Rabbits, turkeys and pheasants were kept, at various times, in pens on the lands - Pigs were raised there on occasion - The defendants cut firewood off of the land and also had a garden there - The defendants trimmed trees, cut under­brush and erected a fence - See paragraphs 107 to 115.

Cases Noticed:

Saueracker et al. v. Snow et al. (1976), 14 N.S.R.(2d) 607; 11 A.P.R. 607 (T.D.), refd to. [para. 89].

Blackadar v. Hart (1917), 51 N.S.R. 449 (T.D.), refd to. [para. 89].

Brown v. Banks (1889), 21 N.S.R. 388 (C.P.), refd to. [para. 89].

Ezbeidy v. Phalen (1957), 11 D.L.R.(2d) 660 (N.S.T.D.), refd to. [para. 97].

Kynoch Ltd. v. Rowlands, [1912] 1 Ch. 527, refd to. [para. 97].

Spencer et al. v. Benjamin (1974), 11 N.S.R.(2d) 137; 5 A.P.R. 137 (C.A.), refd to. [para. 97].

Halifax Power Corp. v. Christie (1915), 23 D.L.R. 481 (N.S.T.D.), refd to. [para. 97].

Naugle v. Naugle (1970), 1 N.S.R.(2d) 554 (T.D.), refd to. [para. 97].

Tanner v. Tanner (1988), 84 N.S.R.(2d) 165; 213 A.P.R. 165 (T.D.), refd to. [para. 97].

Tobias v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. 97].

Gould v. Edmonds (2001), 190 N.S.R.(2d) 254; 594 A.P.R. 254 (S.C.), refd to. [para. 97].

Scheinfeldt v. Nova Scotia (Attorney General) (2001), 194 N.S.R.(2d) 9; 606 A.P.R. 9 (S.C.), refd to. [para. 97].

Sherren v. Pearson (1887), 14 S.C.R. 581, refd to. [para. 105].

Doe d. Des Barres v. White (1882), 1 Kerr (3 N.B.) 595, refd to. [para. 105].

Grace v. Gavin et al. (1990), 99 N.S.R.(2d) 34; 270 A.P.R. 34 (C.A.), refd to. [para. 109].

Zinck v. Hatt et al. (1979), 34 N.S.R.(2d) 12; 59 A.P.R. 12 (C.A.), refd to. [para. 109].

Godson Contracting Co. v. Grand Trunk Railway Co., [1917] O.W.N. 241, refd to. [para. 109].

Authors and Works Noticed:

Canadian Encyclopedic Digest (Ont.) (3rd Ed.), vol. 3, title 19, p. 16, para. 4, pp. 125, 126, paras. 3798, 3800, 3803 [para. 89].

Counsel:

Timothy A. Reid, for the plaintiff, Blanche Bowers;

James DiPersio, for the plaintiff, South West Port Mouton Community Cemetery Society;

Thomas J. Feindel, for the defendants.

This action was heard on May 7-10 and 15, 2002, at Liverpool, N.S., before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on Septem­ber 20, 2002.