Fortier v. Kapeller, (1999) 183 Sask.R. 135 (ProvCt)

• Judge: Diehl, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: July 15, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 183 Sask.R. 135 (ProvCt)

Fortier v. Kapeller (1999), 183 Sask.R. 135 (ProvCt)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. AU.020

Albert Fortier (plaintiff) v. Anthony Kapeller

(defendant)

Indexed As: Fortier v. Kapeller

Saskatchewan Provincial Court

Diehl, P.C.J.

July 15, 1999.

Summary:

The parties each owned land adjacent to an unused road allowance within a rural mun­ici­pality. Prior to 1995, each of the parties, by mutual agreement, farmed one-half of the road allowance. In 1995, the defendant, without the plaintiff's consent, seeded crop on the entire road allowance. He did so again in 1996 and also erected a fence across the northern boundary of the road allowance. The plain­tiff sued the defendant for dam­ages.

The Saskatchewan Provincial Court dis­missed the action.

Evidence - Topic 1377

Relevant facts - Relevance and materiality - Custom - Burden of proof - [See Torts - Topic 3002 ].

Torts - Topic 3002

Trespass - Trespass to land - What con­sti­tutes - The parties each owned land adja­cent to an unused road allowance - Prior to 1995, each of the parties, by mutual agree­ment, farmed one-half of the road allow­ance - In 1995, the defendant, without the plaintiff's consent, seeded crop on the entire road allowance - He did so again in 1996 and also erected a fence across the northern boundary of the road allowance - The plaintiff sued the defen­dant for dam­ages for trespass - He argued that there was sufficient evidence to show that there was a "custom and usage" that each party could farm one-half of the unused road allowance - The Saskatchewan Provincial Court dismissed the action - The evidence purporting to show "custom and usage" did not have the quantitative or qualitative weight to show on a balance of probabil­ities that such usage existed - The plaintiff did not have an exclusive right to pos­session of the road allowance.

Torts - Topic 3029

Trespass - Trespass to land - Requirement of possession or control - General - [See Torts - Topic 3002 ].

Cases Noticed:

Brown v. Lone Tree No. 18 (Rural Mu­nic­ipality) (1992), 103 Sask.R. 203, affd. (1992), 105 Sask.R. 75; 32 W.A.C. 35 (C.A.), refd to. [para. 10].

Boutin v. Boutin (1985), 45 Sask.R. 11 (Q.B.), refd to. [para. 18].

Counsel:

S. Eisner, for the plaintiff;

D. Brown, for the defendant.

This action was heard at Melfort, Saskatchewan, before Diehl, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on July 15, 1999.