Fitzpatrick's Body Shop Ltd. v. Kirby, (1992) 99 Nfld. & P.E.I.R. 42 (NFTD)

• Judge: Cameron, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 31, 1992
• Jurisdiction: Newfoundland and Labrador
• Citations: (1992), 99 Nfld. & P.E.I.R. 42 (NFTD)

Fitzpatrick's v. Kirby (1992), 99 Nfld. & P.E.I.R. 42 (NFTD);

    315 A.P.R. 42

MLB headnote and full text

Fitzpatrick's Body Shop Limited (plaintiff) v. Philip Kirby (defendant)

(1991 St. J. No. 1837)

Indexed As: Fitzpatrick's Body Shop Ltd. v. Kirby

Newfoundland Supreme Court

Trial Division

Cameron, J.

March 31, 1992.

Summary:

The plaintiff brought an action for a decla­ration that it held title to a 16 foot strip of land between its lot and the defendant's. For several decades the predecessors in title of the plaintiff had kept a fence between the lots, but the fence encroached 16 feet on the defendant's lot and the strip was used exclusively by the occupants of the plaintiff's lot.

The Newfoundland Supreme Court, Trial Division, allowed the plaintiff's action.

Real Property - Topic 5640

Title - Extinguishment of title - Limita­tion of actions - Adverse possession - Effect of dividing line such as fence, road or river - For several decades the prede­cessors in title of the plaintiff had kept a fence between their lot and the defendant's - The fence encroached 16 feet on the defendant's lot and the strip was used exclusively by the owners of the plaintiff's lot - The Newfoundland Supreme Court, Trial Division, held that the defendant's title was extinguished by the adverse pos­session of the owners of the plaintiff's lot.

Real Property - Topic 5643

Title - Extinguishment of title - Limita­tion of actions - Adverse possession - Intention of adverse possessor - The Newfoundland Supreme Court, Trial Divi­sion, held that an adverse possessor of land need not know that someone else has a better title to the land, but need only intend to exclude all others from pos­session - See paragraphs 21 to 24.

Real Property - Topic 5691

Title - Extinguishment of title - Limita­tion of actions - Adverse possession - Exclusive possession - General - The plaintiff's fence had for several decades encroached 16 feet onto the defendant's land and the strip was exclusively used by the plaintiff - The defendant submitted that, since he did not intend to use the strip, but merely hold it for future de­velopment, the plaintiff's use did not inter­fere with his use and did not constitute adverse possession - The Newfoundland Supreme Court, Trial Division, held that the plaintiff's use was exclusive and deprived the defendant of title - See para­graphs 27 to 32.

Cases Noticed:

Wickam's Estate v. Wickam Estates (No. 1) (1977), 17 Nfld. & P.E.I.R. 452; 46 A.P.R. 452, appld. [para. 20].

Masidon Investments Ltd. et al. v. Ham (1984), 2 O.A.C. 147; 31 R.P.R. 200, consd. [paras. 24, 29].

Leigh v. Jack (1879), 5 Ex. D. 264, consd. [para. 27].

Keefer v. Arillota (1976), 13 O.R.(2d) 680; 72 D.L.R.(3d) 182, consd. [paras. 27, 29].

Lutz v. Kawa (1979), 17 A.R. 288; 9 Alta. L.R.(2d) 151, consd. [para. 27].

Wood v. Gateway of Uxbridge Proper­ties Inc. (1990), 75 O.R.(2d) 769, consd. [para. 30].

Buckinghamshire County Council v. Moran, [1989] 2 All E.R. 225, appld. [para. 31].

Burgess v. Russell (1987), 67 Nfld. & P.E.I.R. 208; 206 A.P.R. 208, appld. [para. 34].

Sedden v. Smith (1877), 36 L.T. 168, appld. [para. 34].

Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex and B.P. Ltd., [1975] Q.B. 94, dist. [para. 36].

Statutes Noticed:

Limitation of Actions (Realty) Act, R.S.N. 1970, c. 207, sect. 3 [para. 18]; sect. 27 [para. 19].

Rules of the Supreme Court (Nfld.), rule 7.16 [para. 38].

Authors and Works Noticed:

Anger and Honsberger, The Canadian Law of Real Property (2nd Ed.), vol. 2, p. 1501 [paras. 22, 23].

Megarry and Wade, The Law of Real Property (5th Ed.), p. 1034 [para. 26].

Counsel:

Randall W. Smith, for the plaintiff;

John Pratt, for the defendant.

This case was heard on March 17-20, 1992, at St. John's, Newfoundland, before Cameron, J., of the Newfoundland Supreme Court, Trial Division, who delivered the following judgment on March 31, 1992: