Mack v. Meldrum et al., (1992) 115 N.S.R.(2d) 159 (TD)

• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 26, 1992
• Jurisdiction: Nova Scotia
• Citations: (1992), 115 N.S.R.(2d) 159 (TD)

Mack v. Meldrum (1992), 115 N.S.R.(2d) 159 (TD);

  314 A.P.R. 159

MLB headnote and full text

Alfred B. Mack (plaintiff) v. Attorney General of the Province of Nova Scotia, representing Her Majesty the Queen, in the right of the Province of Nova Scotia, and Hazen Meldrum, Jr., the Estate of Vernon Meldrum and the Estate of Calvin Rowe (defendants)

(S.L.P. 0636)

Indexed As: Mack v. Meldrum et al.

Nova Scotia Supreme Court

Trial Division

Glube, C.J.T.D.

August 26, 1992.

Summary:

Landowners sought an order for enti­tle­ment to a certificate of title under the Nova Scotia Quieting of Titles Act for the same piece of land.

The Nova Scotia Supreme Court, Trial Division, decided the dispute and ordered accordingly.

Real Property - Topic 5632

Title - Extinguishment of title - Limita­tion of actions and adverse possession - Possession - Constructive possession - The Nova Scotia Supreme Court, Trial Division, discussed the doctrine of con­structive possession - See paragraphs 13 to 17.

Real Property - Topic 5634

Title - Extinguishment of title - Limita­tion of actions and adverse possession - Possession - Actual or lawful possession - The Nova Scotia Supreme Court, Trial Division, stated that "[w]hen a person has paper title to land and occupies any part of it, the law provides that the person who is in possession of a part is regarded as being in possession of the whole unless it can be shown that another person is in actual physical possession of some part of that property to the exclusion of the true owner" - See paragraph 12.

Real Property - Topic 5634

Title - Extinguishment of title - Limita­tion of actions and adverse possession - Possession - Actual or lawful possession - Landowners sought a certificate of title to the same piece of land - The plaintiff had paper title with a 45 year old gap - The defendants had a gap in the title over a hundred years old - The Nova Scotia Supreme Court, Trial Division, concluded that the defendants had good documentary title, but if they only had colour of title, the title had "... 'ripened' into an indefeasi­ble title of the whole land" - The plaintiff did not show possessory acts which would displace the documentary title or colour of title held by the defendants.

Real Property - Topic 5636

Title - Extinguishment of title - Limita­tion of actions and adverse possession - Possession - Entry under colour of title - The Nova Scotia Supreme Court, Trial Division, discussed entry under colour of title - See paragraphs 13 to 17.

Real Property - Topic 5636

Title - Extinguishment of title - Limita­tion of actions and adverse possession - Possession - Entry under colour of title - [See second Real Property - Topic 5634 ].

Cases Noticed:

Scott v. Smith (1979), 36 N.S.R.(2d) 541; 64 A.P.R. 541 (C.A.), refd to. [para. 14].

Rafuse and Rafuse v. Meister (1979), 32 N.S.R.(2d) 217; 54 A.P.R. 217 (C.A.), refd to. [para. 14].

Brewer v. Gillis (1982), 53 N.S.R.(2d) 656; 109 A.P.R. 656 (T.D.), refd to. [para. 14].

Zinck v. Attorney General of Nova Scotia, et al. (1979), 34 N.S.R.(2d) 12; 59 A.P.R. 12 (C.A.), refd to. [para. 16].

Dempsey v. JES Developments Ltd. (1976), 15 N.S.R.(2d) 488; 14 A.P.R. 488, refd to. [para. 17].

Statutes Noticed:

Quieting of Titles Act, R.S.N.S. 1967, c. 259, generally.

Authors and Works Noticed:

Anger and Honsberger, Canadian Law of Real Property (1959), p. 792 [para. 13].

Counsel:

Thomas J. Feindel, for the plaintiff;

W. Yorke Tutty, Q.C., for the Attorney General;

Nancy M. Peers, for the defendants, Hazen Meldrum, Jr., the estate of Vernon Meldrum and the estate of Calvin Rowe.

This action was heard on June 22, 23 and 24, 1992, at Liverpool, Nova Scotia, before Glube, C.J.T.D., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment dated August 26, 1992: