Brown v. Robinson, (1998) 196 N.B.R.(2d) 55 (TD)

• Judge: Riordon, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 30, 1998
• Jurisdiction: New Brunswick
• Citations: (1998), 196 N.B.R.(2d) 55 (TD)

Brown v. Robinson (1998), 196 N.B.R.(2d) 55 (TD);

    196 R.N.-B.(2e) 55; 501 A.P.R. 55

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.B.R.(2d) TBEd. FE.013

William Robinson and Annie Robinson (applicants) v. Shirley Brown (respondent)

(N/M/86/97)

Indexed As: Brown v. Robinson

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Riordon, J.

February 4, 1998.

Summary:

Adjacent landowners (Brown and Robin­son) disputed the location of the boun­dary between their two properties. Brown sought a declaration of ownership against ap­proximately 10 feet of Robinson's land, claiming that she had occupied the property in question openly, continuously and without permission from anyone for in excess of 25 years.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 181 N.B.R.(2d) 272; 460 A.P.R. 272, al­lowed Brown's application. Thereafter, the Robinsons engaged a land surveyor to place survey markers to mark the boundary line between the two properties in accordance with the judgment. Brown did not agree with the location of the survey markers and placed two steel posts where she felt the line should be according to the judgment. The Robinsons sought a ruling that the boundary line be determined in accordance with the land surveyor's markers.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the applica­tion.

Real Property - Topic 5631

Title - Extinguishment, prescription and adverse possession - Possession - Acts constituting possession - In 1969 Robinson erected a fence on what he deemed to be his property line - There­after, the next door neighbours (Brown), landscaped their property up to the fence - In 1995, Robin­son discovered that his property actually extended 10 feet beyond the fence - A dispute arose and Brown sought a decla­ration of ownership against that 10 foot portion of Robinson's land, claiming that she had occupied the prop­erty openly, continuously and without permission from anyone for in excess of 25 years - The trial judge allowed the application under the Limitation of Actions Act, s. 29 - There­after, the New Bruns­wick Court of Queen's Bench, Trial Div­ision, further defined the boundary line to be in accord­ance with a plan of survey dated July 19, 1996.

Real Property - Topic 5640

Title - Extinguishment, prescription and adverse possession - Possession - Effect of dividing line such as fence, road or river - [See Real Property - Topic 5631 ].

Real Property - Topic 5682

Title - Extinguishment, prescription and adverse possession - Open possession - What constitutes - [See Real Property - Topic 5631 ].

Real Property - Topic 5705

Title - Extinguishment, prescription and adverse possession - Continuity of pos­session - What constitutes "continuous possession" - [See Real Property - Topic 5631 ].

Counsel:

Norville Getty, for the applicants;

Shirley Brown, on her own behalf.

This application was heard on January 30, 1998, at Miramichi, New Brunswick, before Riordon, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on February 4, 1998.