DeGruchy v. Pettipas,

• Jurisdiction: Nova Scotia
• Judge: Kennedy
• Neutral Citation: 2004 NSSC 212
• Date: 06 April 2004
• Subject Matter: DAMAGES,TORTS,REAL PROPERTY
• Court: Supreme Court of Nova Scotia (Canada)

DeGruchy v. Pettipas (2004), 227 N.S.R.(2d) 141 (SC);

 720 A.P.R. 141

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. NO.002

Elizabeth DeGruchy (plaintiff) v. Charles David Pettipas and Evelyn Marie Pettipas (defendants)

(S.AT. 2543; 2004 NSSC 212)

Indexed As: DeGruchy v. Pettipas

Nova Scotia Supreme Court

Kennedy, C.J.S.C.

October 29, 2004.

Summary:

The plaintiff brought a trespass action for damages against the defendants, submitting that they cut timber off her land. At issue was the disputed boundary between adjacent lands owned by the plaintiff and defendants.

The Nova Scotia Supreme Court allowed the action, awarded the plaintiff $15,000 general damages and dismissed a claim for punitive damages.

Damages - Topic 1300

Exemplary or punitive damages - Trespass - [See Real Property - Topic 4760 ].

Real Property - Topic 4760

Title - Boundaries - Determination of - Rivers and streams - Non-tidal - The plaintiff brought a trespass action for damages against the defendants, submitting that they cut timber off her land - The defendants, adjoining landowners, disputed the boundary line and submitted that the timber they cut was on their land - The Nova Scotia Supreme Court allowed the action - The deeds consistently described the western boundary of the defendants' land as a brook, a natural watercourse - The defendants' surveyor erred in fixing the boundary further to the west, based on "blazed" marks on a tree - The court accepted that a natural watercourse in a deed took precedence over a manmade boundary indicator - The court awarded the plaintiff $15,000 general damages, but dismissed a claim for punitive damages, where the defendants retained a surveyor and relied on his incorrect fixing of the boundary in cutting trees off of land they believed was theirs.

Real Property - Topic 4794

Title - Boundaries - Determination of - By monuments and marks - [See Real Property - Topic 4760 ].

Torts - Topic 3007

Trespass - Trespass to land - Cutting of trees or crops - [See Real Property - Topic 4760 ].

Cases Noticed:

Carrigan v. Fraser, [2002] N.S.R.(2d) Uned. 99; 2002 NSSC 107, refd to. [para. 35].

Wood v. Grand Valley Railway Co. (1915), 22 D.L.R. 614 (S.C.C.), refd to. [para. 94].

McKinnon v. Acadian Lines Ltd. (1977), 24 N.S.R.(2d) 74; 35 A.P.R. 74; 81 D.L.R.(3d) 480 (C.A.), refd to. [para. 95].

Musgrave et al. v. Basin View Village Ltd. et al. (1998), 166 N.S.R.(2d) 52; 498 A.P.R. 52 (S.C.), refd to. [para. 99].

Denison v. Fawcett, [1958] O.R. 312 (C.A.), refd to. [para. 99].

Counsel:

Dennis James, for the plaintiff;

Duncan Chisholm, for the defendants.

This action was heard on March 30, 31 and April 1, 2, 2004, at Antigonish, N.S., and on April 6, 2004, at Halifax, N.S., before Kennedy, C.J.S.C., of the Nova Scotia Supreme Court, who delivered the following oral judgment on October 29, 2004.