Goulden v. Nova Scotia (Attorney General) et al., (2013) 333 N.S.R.(2d) 242 (SC)

• Judge: Stewart, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: Monday August 19, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 333 N.S.R.(2d) 242 (SC);2013 NSSC 253

Goulden v. N.S. (A.G.) (2013), 333 N.S.R.(2d) 242 (SC);

    1055 A.P.R. 242

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. AU.036

Michael L. Goulden (plaintiff) v. The Honourable Attorney General of the Province of Nova Scotia and Joseph E. MacDonald and Louanne MacDonald and Clifford VanBuskirk and Ardith VanBuskirk and James Kimbrell and Betty Kimbrell and Gary Rapp and Brian Ricky Rapp and Jonathan Rap (defendants)

(SY. 290886; 2013 NSSC 253)

Indexed As: Goulden v. Nova Scotia (Attorney General) et al.

Nova Scotia Supreme Court

Stewart, J.

August 19, 2013.

Summary:

The plaintiff applied under the Quieting of Titles Act respecting the boundaries of his rural property. The plaintiff claimed that his western boundary was as determined by a 1996 survey. The defendant landowners claimed that the boundary was as determined in a 1983 survey or an old wire fence and later its remnants. The plaintiff's northern boundary was also in dispute. The dispute was based entirely on the interpretation of deeds (no adverse possession claims) and there was no dispute respecting the chain of title. Also at issue was whether there was a right-of-way across the disputed lands of the plaintiff giving some of the defendants access to their lands. Those defendants argued that there was open, notorious and continuous use for at least 28 years when the plaintiff blockaded the right-of-way. The defendants' claim was based at common law on the basis of the doctrine of lost modern grant and the Limitations Act.

The Nova Scotia Supreme Court determined the northern (intent of predecessor deed) and western boundaries (old fence line) of the plaintiff's lands. The court determined that there was a 16-18 foot wide prescriptive right-of-way crossing a portion of the plaintiff's lands on the basis of open, notorious, continuous use for a period of at least 38 years.

Deeds and Documents - Topic 2561

Operation and interpretation - Interpretation - General - [See Real Property - Topic 4721].

Real Property - Topic 4721

Title - Boundaries - Rules of construction - General - The Nova Scotia Supreme Court stated that "the general rules of evidence apply to boundary disputes, which are typically heavily concerned with documentary evidence of title. In deed interpretation, the question is not the grantor's subjective intent. Rather, the court is concerned with the meaning of the words used in the deed. ... If the terms of the conveyance are clear, extrinsic evidence is not admissible. ... When the words of a deed are not ambiguous, either in themselves or when applied to the land in question, the intention of the original grantor is to be taken from the words of the description in the deed. No further rules of interpretation are required ... A latent ambiguity occurs when the words of a document on their face do not admit a different possible meaning, but surrounding circumstances show that two or more different meanings are possible. A party may demonstrate that a latent ambiguity exists, and attempt to resolve it, by adducing extrinsic evidence, including evidence of subjective intention. A patent ambiguity, by contrast, is 'apparent from the face of the document' ... The rules for ascertaining the intention of a grantor in the event of ambiguity ... [are] the general rule 'is to give most effect to those things about which men are least liable to mistake' ... In applying this principle, the elements of the description are 'marshalled' in the following order: 'First, the highest regard had to natural boundaries; Secondly, to lines actually run and corners actually marked at the time of the grant; Thirdly, if the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established; Fourthly, to course and distances, giving preference to the one or the other according to the circumstances' ... the Ontario Court of Appeal set out the surveyors' hierarchy of evidence: (1) natural boundaries; (2) original monuments; (3) fences or possession that can reasonably be related back to the time of the original survey; and (4) measurements (as shown on the plan or as stated in the metes and bounds description). ... The Court of Appeal recently considered this hierarchy ... declining to decide whether it applies in Nova Scotia. The court held that the 'application of the "hierarchy of evidence" and related survey principles would initially be a matter for the expertise and opinion of the surveyors in question. So, for example, whether monuments were "original" or whether "fences or possession" can be reasonably related back to the "time of original survey" would be matters of expert opinion for a surveyor' ... In re-establishing a line, a surveyor must 'consider the best evidence available and re-establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in the deed or on a plan. The boundary is the re-establishment on the ground of the original running of the line and this re-establishment of the boundary constitutes the deed line' ... if 'original monumentation is found and is undisturbed as to location, it must be accepted, erroneous as may have been the original survey' ... If there is no evidence 'of either the original monuments or original line, then the surveyor must refer to the measurements as contained in the deed or on the plan'." - See paragraphs 12 to 17.

Real Property - Topic 4724

Title - Boundaries - Rules of construction - Where document vague or contains latent ambiguity - [See Real Property - Topic 4721].

Real Property - Topic 4741

Title - Boundaries - Determination of - General - [See Real Property - Topic 4721].

Real Property - Topic 4747

Title - Boundaries - Determination of - By act or agreement of parties (conventional lines) - [See Real Property - Topic 4721].

Real Property - Topic 4753

Title - Boundaries - Determination of - Maps, plans and field notes - The Nova Scotia Supreme Court stated that "where a deed refers to a plan in the description, notes on that plan are considered to be incorporated into the deed" - See paragraph 18.

Real Property - Topic 4780

Title - Boundaries - Determination - Fences and stone walls - [See Real Property - Topic 4721].

Real Property - Topic 4934

Title - Boundaries - Evidence - Extrinsic evidence - [See Real Property - Topic 4721].

Real Property - Topic 7028

Easements, licences and prescriptive rights - Creation by express grant - "Lost modern grant" - [See Real Property - Topic 7087].

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - The defendants claimed a prescriptive right of way over a portion of the plaintiff's lands based on open, notorious and continuous use for a period exceeding the 20 years minimum required for adverse possession under the Limitations Act - There was evidence of such use by the defendants, their predecessors and the public for a continuous period of over 38 years prior to the plaintiff blockading the right-of-way starting in the late 1990s - The Nova Scotia Supreme Court accepted the evidence of open, notorious and continuous use for a period exceeding 20 years and held that there was a 16-18 foot prescriptive right-of-way over the plaintiff's lands - See paragraphs 184 to 206.

Real Property - Topic 7075

Easements, licences and prescriptive rights - Rights of way - General (incl. what constitutes) - [See Real Property - Topic 7056].

Real Property - Topic 7087

Easements, licenses and prescriptive rights - Rights of way - Extinguishment - The Nova Scotia Supreme Court stated that "no authority has been offered that would support the conclusion that a servient owner could revoke a right-of-way that had already been established through lost modern grant" - See paragraph 200.

Cases Noticed:

Kimbrell v. Goulden (2006), 248 N.S.R.(2d) 96; 789 A.P.R. 96; 2006 NSCA 102, refd to. [para. 9].

Knock v. Fouillard (2007), 252 N.S.R.(2d) 298; 804 A.P.R. 298; 2007 NSCA 27, refd to. [para. 12].

Herbst v. Seaboyer (1994), 137 N.S.R.(2d) 5; 391 A.P.R. 5 (C.A.), refd to. [para. 13].

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258; 874 A.P.R. 258; 2009 NSCA 12, refd to. [para. 13].

Taylor v. City Sand & Gravel Ltd. et al. (2010), 296 Nfld. & P.E.I.R. 338; 915 A.P.R. 338; 2010 NLCA 12, refd to. [para. 13].

MacPherson v. Cameron (1868), 7 N.S.R. 208 (S.C.), refd to. [para. 14].

Kolstee v. Metlin (2002), 207 N.S.R.(2d) 27; 649 A.P.R. 27; 2002 NSCA 81, refd to. [para. 14].

Saueracker et al. v. Snow et al. (1976), 14 N.S.R.(2d) 607; 11 A.P.R. 607 (T.D.), refd to. [para. 15].

Humphreys v. Pollock, [1953] 3 D.L.R. 730 (N.B.C.A.), affd. [1954] 4 D.L.R. 721 (S.C.C.), refd to. [para. 15].

Nicholson v. Halliday (2005), 193 O.A.C. 240; 248 D.L.R.(4th) 483 (C.A.), refd to. [para. 16].

Robichaud v. Ellis (2011), 300 N.S.R.(2d) 350; 950 A.P.R. 350; 2011 NSSC 86, refd to. [para. 16].

Podgorski v. Cook (2013), 329 N.S.R.(2d) 69; 1042 A.P.R. 69; 2013 NSCA 47, refd to. [para. 16].

Thelland v. Golden Haulage Ltd., 1989 CarswellOnt 2417 (Dist. Ct.), refd to. [para. 17].

Traynor v. Hilderley et al. (1997), 56 O.T.C. 137 (Gen. Div.), refd to. [para. 17].

Fullerton v. Brundige (1887), 20 N.S.R. 182; 1887 CarswellNS 43 (S.C. in banco), refd to. [para. 18].

K & W Enterprises Ltd. v. Smith (1971), 7 N.S.R.(2d) 411; 1971 CarswellNS 162 (T.D.), refd to. [para. 18].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 20].

R. v. Gagnon (L.) (2006), 347 N.R. 355; 2006 SCC 17, refd to. [para. 20].

Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 21].

R. v. W.H. (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 22].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 22].

Van Dieman's Land Co. v. Table Cape Marine Board, [1906] A.C. 92, refd to. [para. 113].

Charbonneau v. McCusker (1910), 22 O.L.R. 46 (C.A.), refd to. [para. 160].

Belyea v. Belyea (1857), 8 N.B.R. 588 (C.A.), refd to. [para. 161].

Naugle v. Naugle (1969), 1 N.S.R.(2d) 554 (T.D.), affd. (1969), 2 N.S.R.(2d) 309 (C.A.), refd to. [para. 181].

McIsaac v. McKay (1915), 49 N.S.R. 476 (S.C. in banco), refd to. [para. 181].

Gilfoy v. Westhaver et al. (1989), 92 N.S.R.(2d) 425; 237 A.P.R. 425 (T.D.), refd to. [para. 186].

Nickerson v. Hatfield (2013), 329 N.S.R.(2d) 145; 1042 A.P.R. 145; 2013 NSSC 133, refd to. [para. 186].

Mason v. Partridge et al. (2005), 237 N.S.R.(2d) 252; 754 A.P.R. 252; 2005 NSCA 144, refd to. [para. 186].

Garfikel v. Klienberg, [1955] 2 D.L.R. 844; 1955 CarswellOnt 58 (C.A.), refd to. [para. 198].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (2010 update), §18:30:30 [para. 12].

Canadian Council of Land Surveyors, Survey Law in Canada (1989), §8.68 [para. 160].

Doig, James F., Settlement of Boundary Uncertainties, in Canadian Council of Land Surveyors, Survey Law in Canada (1989), §8.68 [para. 160].

Hall, Geoff R., Canadian Contractual Interpretation Law (2nd Ed. 2012), §2.8.5 [para. 13].

Halsbury's Laws of England (2nd Ed. 1933), vol. 11, pp. 296, 297, para. 537 [para. 198].

Megarry, R.E., and Wade, H.W.R., The Law of Real Property (3rd Ed. 1966), p. 841 [para. 187].

Counsel:

Allen C. Fownes, for the plaintiff;

Andrew Nickerson, Q.C., for the defendants;

Greg Barro, for AGNS (not participating).

This matter was heard on July 23-27, 2012, at Shelburne and Barrington, N.S., before Stewart, J., of the Nova Scotia Supreme Court, who delivered the following judgment on August 19, 2013.