MacDonald v. McCormick, 2009 NSCA 12

• Judge: Roscoe, Saunders and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 30, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 12;(2009), 274 N.S.R.(2d) 258 (CA)

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258 (CA);

    874 A.P.R. 258

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.067

Roger Mark McCormick and Angela Louise McCormick (appellants) v. John William MacDonald and Lorraine Marie MacDonald (respondents)

(CA 294010; 2009 NSCA 12)

Indexed As: MacDonald v. McCormick

Nova Scotia Court of Appeal

Roscoe, Saunders and Fichaud, JJ.A.

January 30, 2009.

Summary:

The plaintiffs and defendants disputed the existence and location of a right-of-way and the boundary line respecting their abutting cottage lots. The plaintiffs alleged that there was a 10 foot wide right-of-way between their properties (by grant or adverse possession), which provided beach access by way of a set of stairs. The plaintiffs sought a declaration that the right-of-way existed for their benefit and the benefit of other cottage owners in the subdivision. The defendants, who blockaded the right-of-way and removed the stairs, denied the existence of any right-of-way and counterclaimed for damages for trespass.

The Nova Scotia Supreme Court, in a judgment reported (2007), 251 N.S.R.(2d) 202; 802 A.P.R. 202, allowed the plaintiffs' application and dismissed the defendants' counterclaim. The technical boundary line was as found by the defendants' surveyor, which was unaltered by agreement or conventional line. However, the plaintiffs acquired title to the disputed parcel of land on the basis of adverse possession. Further, the plaintiffs were also entitled, by virtue of adverse possession, to use a five foot wide footpath over the defendants' property as a right-of- way. The defendants appealed.

The Nova Scotia Court of Appeal allowed the appeal in part. The trial judge erred in law by misinterpreting a 1949 deed to fix the boundary line, which prompted him to err in finding it appropriate to invoke the doctrines of constructive and adverse possession. Accordingly, the disputed parcel was owned by the defendants, as found by the defendants' surveyor. However, the finding that the plaintiffs established a right-of-way to a pedestrian path over the defendants' lands to the beach was upheld. That finding was one of mixed fact and law and, absent error of law, there was no palpable and overriding error warranting appellate intervention.

Deeds and Documents - Topic 2502

Operation and interpretation - General - Interpretation of deeds - The Nova Scotia Court of Appeal stated that "while the construction of a deed is a question of law, to the extent that a deed must be interpreted in the context of facts and factual inferences, its review may also raise questions of mixed fact and law. If a trial judge fails to consider relevant evidence, or makes palpable and overriding errors in finding the facts, or drawing inferences from those facts, this court will intervene" - See paragraph 61.

Deeds and Documents - Topic 2523

Operation and interpretation - The property conveyed - Intention of grantor - The Nova Scotia Court of Appeal stated that "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" - See paragraph 73.

Practice - Topic 8800.1

Appeals - Duty of appellate court regarding findings of mixed law and fact by a trial judge - The Nova Scotia Court of Appeal restated that "on questions of law the trial judge must be right. The standard of review is one of correctness. There may be questions of mixed fact and law. Matters of mixed fact and law are said to fall along a 'spectrum of particularity'. Such matters typically involve applying a legal standard to a set of facts. Mixed questions of fact and law should be reviewed according to the palpable and overriding error standard unless the alleged error can be traced to an error of law which may be isolated from the mixed question of law and fact. Where that result obtains, the extricated legal principle will attract a correctness standard. Where, on the other hand, the legal principle in issue is not readily extricable, then the issue of mixed law and fact is reviewable on the standard of palpable and overriding error." - See paragraph 21.

Real Property - Topic 4747

Title - Boundaries - Determination of - By act or agreement of parties (conventional lines) - The plaintiffs and defendants, adjoining cottage lot owners, disputed a right-of-way for beach access and the boundary line between their lots - The defendants' surveyor found the disputed 10 foot strip of land to be included in his lot - The plaintiffs' surveyor concluded the opposite - The trial judge, after considering both surveys, accepted the defendants' survey as disclosing the correct boundary between the lots, which was unaltered by any agreement or conventional line - However, the plaintiffs had acquired title to the 10 foot strip of land by constructive possession, based on his interpretation of a 1949 deed - The judge also found that the plaintiffs established title by adverse possession based on usage - Finally, regardless of the boundary line, the plaintiffs established a right-of-way over a five foot wide pathway over the defendants' lands to access the beach - There had been continuous use of the pathway without the defendants' consent for a period exceeding 20 years - The Nova Scotia Court of Appeal allowed the defendants' appeal in part - The trial judge erred in law in fixing the boundaries of the lots based on a misinterpretation of the 1949 deed, which led him to err in invoking the doctrines of constructive and adverse possession (i.e., plaintiffs had no paper title to claim constructive possession and no claim for adverse possession filed) - The disputed parcel was owned by the defendants, as found by the defendants' surveyor - However, the finding that the plaintiffs established a right-of-way to a pedestrian path over the defendants' lands to the beach was upheld - That finding was one of mixed fact and law and, absent error of law, there was no palpable and overriding error warranting appellate intervention.

Real Property - Topic 5632

Title - Extinguishment, prescription and adverse possession - Possession - Constructive possession - The Nova Scotia Court of Appeal stated that "an essential prerequisite to a claim of constructive possession is that the claimant be able to rely on colour of right, that is by having some paper title, albeit a defective paper title. It is not the deed or other instrument which gives title, but rather the claimants' bona fide belief of holding title coupled with the adverse possession under it for the requisite period of time, with colour of right. The paper title, though defective, may then define the boundary of the legally effective title by adverse possession. ... Since paper title is an essential element of constructive possession - only a party with party title to land can claim constructive possession; the constructive possession is limited to the property described in the deed." - See paragraphs 92, 94.

Real Property - Topic 5632

Title - Extinguishment, prescription and adverse possession - Possession - Constructive possession - [See Real Property - Topic 4747 ].

Real Property - Topic 5751

Title - Extinguishment, prescription and adverse possession - Adverse possession - General (incl. what constitutes) - [See Real Property - Topic 4747 ].

Real Property - Topic 7056

Easements, licences and prescriptive rights - Creation by prescription - Requirement of use for statutory period - [See Real Property - Topic 4747 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 20].

McPhee v. Gwynne-Timothy (2005), 232 N.S.R.(2d) 175; 737 A.P.R. 175; 2005 NSCA 80, refd to. [para. 21].

Alberta Giftwares Ltd. v. R., [1974] S.C.R. 584, refd to. [para. 60].

Kolstee v. Metlin (2002), 207 N.S.R.(2d) 27; 649 A.P.R. 27; 2002 NSCA 81 (C.A.), refd to. [para. 61].

Knock v. Fouillard (2007), 252 N.S.R.(2d) 298; 804 A.P.R. 298 (C.A.), refd to. [para. 72].

Herbst v. Seaboyer (1994), 137 N.S.R.(2d) 5; 391 A.P.R. 5 (C.A.), refd to. [para. 73].

Mason v. Mason Estate et al. (1999), 176 N.S.R.(2d) 321; 538 A.P.R. 321 (C.A.), refd to. [para. 93].

Mason v. Nova Scotia (Minister of Justice) - see Mason v. Mason Estate et al.

Wood v. LeBlanc (1904), 34 S.C.R. 627, refd to. [para. 94].

Duggan v. Nova Scotia (Attorney General) et al. (2004), 222 N.S.R.(2d) 229; 701 A.P.R. 229 (S.C.), refd to. [para. 95].

Ferguson (R.B.) Construction Ltd. v. Ormiston et al. (1989), 91 N.S.R.(2d) 226; 233 A.P.R. 226 (C.A.), refd to. [para. 95].

Wilmot v. Ulnooweg Development Group Inc. (2007), 253 N.S.R.(2d) 376; 807 A.P.R. 376; 2007 NSCA 49, refd to. [para. 104].

Goulden v. Kimbrell (2006), 248 N.S.R.(2d) 96; 789 A.P.R. 96; 2006 NSCA 102, refd to. [para. 104].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (3rd Ed. 2006) (2008 Looseleaf), pp. 29.22, 29.23 [para. 93].

Lamont, Donald H.L., Real Estate Conveyancing (2nd Ed.) (2008 Looseleaf), p. 6-22 [para. 93].

MacIntosh, Charles W., Nova Scotia Real Property Practice Manual (2008), pp. 7-11(4), 7-11(5) [para. 93].

Counsel:

Stephen Kingston and Ian Dunbar, for the appellants;

Peter Lederman, Q.C., and Jeanne Archibald, Q.C., for the respondents.

This appeal was heard on November 25, 2008, at Halifax, N.S., before Roscoe, Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal.

On January 30, 2009, Saunders, J.A., delivered the following judgment for the Court of Appeal.