Hughes v. Fredericton (City), (1999) 216 N.B.R.(2d) 387 (TD)

• Judge: Clendening, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 07, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 216 N.B.R.(2d) 387 (TD)

Hughes v. Fredericton (1999), 216 N.B.R.(2d) 387 (TD);

    216 R.N.-B.(2e) 387; 552 A.P.R. 387

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [1999] N.B.R.(2d) TBEd. AU.017

M. Theresa Hughes (plaintiff) v. The City of Fredericton (defendant)

(F/C/501/94)

Indexed As: Hughes v. Fredericton (City)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Clendening, J.

August 4, 1999.

Summary:

A railbed right-of-way ran through the plain­tiff's property. The city commenced an action and obtained a default judgment declaring, inter alia, that it owned the right-of-way. The plaintiff's husband was a named defendant in the action but the plaintiff was not. The plaintiff sought a declaration that she was entitled to exclusive occupation of the right-of-way. She contended she was not bound by the judgment because she was not a party to the action and her husband could not grant, bargain, release or negotiate away her ownership rights to the right-of-way.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported [1997] N.B.R.(2d) (Supp.) No. 77, dis­missed the action. The plaintiff appealed.

The New Brunswick Court of Appeal, in a decision reported 204 N.B.R.(2d) 153; 520 A.P.R. 153, allowed the appeal, set aside the judgment and remitted the matter to the trial judge for determination of the outstanding issues.

The New Brunswick Court of Queen's Bench, Trial Division, determined the issues.

Real Property - Topic 5634

Title, extinguishment, prescription and adverse possession - Possession - Actual possession - The plaintiff's husband fenced his land and a railbed right-of-way in 1967 and used the area to pasture horses - The right-of-way (the property) was conveyed to a city for public purposes in 1973 - The city zoned the property as parkland and carried out various activities concerning the property - In 1995 the city removed the fence and developed a public walking trail - The New Brunswick Court of Queen's Bench, Trial Division, held that the plain­tiff had no adverse possession claim be­cause of the public character and usage of the property - Alternatively, the court was not satisfied that the plaintiff had actual possession for 20 years, had the necessary intention to exclude the city from posses­sion and had effectively excluded the city from possession.

Real Property - Topic 5643

Title, extinguishment, prescription and adverse possession - Possession - Inten­tion of adverse possessor - [See Real Property - Topic 5634 ].

Real Property - Topic 5663

Title, extinguishment, prescription and adverse possession - Property subject to prescription - Easements or rights of way -[See Real Property - Topic 5634 ].

Real Property - Topic 5724

Title, extinguishment, prescription and adverse possession - Continuity of pos­session - Interruption of continuity - Acts constituting - [See Real Property - Topic 5634 ].

Real Property - Topic 5775

Title, extinguishment, prescription and adverse possession - Dedication to public use - Recreational uses - [See Real Prop­erty - Topic 5634 ].

Cases Noticed:

Fredericton Heritage Trust Inc. et al. v. Frederiction (City) (1989), 88 N.B.R.(2d) 238; 224 A.P.R. 238 (C.A.), refd to. [para. 9].

Stager v. Muskoka Lakes (Township) (1989), 71 O.R.(2d) 126 (Gen. Div.), refd to. [para. 11].

St. Andrews (Town) v. Lecky et al. (1993), 133 N.B.R.(2d) 14; 341 A.P.R. 14 (T.D.), refd to. [para. 11].

Landry v. Landry (1991), 117 N.B.R.(2d) 181; 295 A.P.R. 181 (C.A.), refd to. [para. 18].

Brown v. Schleyer (1979), 27 N.B.R.(2d) 63; 60 A.P.R. 63 (C.A.), refd to. [para. 18].

Fletcher v. Storoschuk (1981), 128 D.L.R.(3d) 59 (Ont. C.A.), refd to. [para. 18].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), vol. 2, p. 1253 [para. 10].

Law of Canadian Municipal Corporations (2nd Ed.), vol. 2, para. 212.5 [para. 10].

Counsel:

Charles Bird, for the plaintiff;

David M. Norman, Q.C., for the defendant.

This action was heard on May 7, 1999, before Clendening, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who deliv­ered the following judgment on August 4, 1999.