McInnis v. Stone, (2016) 370 N.S.R.(2d) 365 (SC)

• Judge: Pickup, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 04, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 370 N.S.R.(2d) 365 (SC);2016 NSSC 69

McInnis v. Stone (2016), 370 N.S.R.(2d) 365 (SC);

    1165 A.P.R. 365

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.015

Thomas Joseph McInnis (applicant) v. Daniel J. Stone and Francine Michelle Stone (respondents)

(Hfx. No. 427425; 2016 NSSC 69)

Indexed As: McInnis v. Stone

Nova Scotia Supreme Court

Pickup, J.

March 4, 2016.

Summary:

The applicant's paper title included land over which the respondents claimed title by way of adverse possession. Alternatively, the respondents claimed to have acquired an easement by prescription or lost modern grant. Starting in 2011, after an unsuccessful attempt to purchase the disputed land from the applicant, the respondents claimed ownership of the disputed land. They cut down trees, excavated portions of the property and called the RCMP if they saw the applicant on the disputed property. The applicant sought damages for trespass and injunctive relief. At issue was whether the respondents had title by colour of right or adverse possession, and whether the respondents had an easement by lost modern grant.

The Nova Scotia Supreme Court allowed the application. The respondents did not aquire title by colour of right or adverse possession. There was no easement created by lost modern grant. The applicant was awarded $1,500 general damages, plus $3,500 punitive damages for a deliberate and malicious attempt at a "land grab". Injunctive relief was not granted as it was unnecessary at present.

Damage Awards - Topic 550

Torts - Injury to land and buildings - Trespass - [See Damage Awards - Topic 2020 ].

Damage Awards - Topic 2020

Exemplary or punitive damages - Trespass to land - The respondents claimed title to a portion of the applicant's land by way of, inter alia, adverse possession - The respondents' action effectively excluded the applicant from enjoying a portion of his own property for four years - The respondents cut down trees, altered the topography, and excluded the applicant by calling the R.C.M.P. when he entered his own property - The Nova Scotia Supreme Court held that this was an intentional and malicious "land grab", making the respondents liable for damages for trespass - The court awarded $1,500 general damages for loss of enjoyment of the land and $3,500 punitive damages - Notwithstanding the respondents knew when they purchased the property that they had no water access, after unsuccessfully trying to buy the disputed land to obtain such access, they maliciously attempted a "land grab" to secure water access - The court stated that "I find the actions of the respondents to have been calculated, malicious, inexcusable and a departure from a standard of decent behaviour" - See paragraphs 115 to 148.

Real Property - Topic 5632

Title - Extinguishment, prescription and adverse possession - Possession - Constructive possession - [See Real Property - Topic 5636 ].

Real Property - Topic 5636

Title - Extinguishment - Prescription and adverse possession - Possession - Entry under colour of title - The respondents claimed that they and their predecessors in title had colour of title to a disputed portion of land - The Nova Scotia Supreme Court rejected the claim - "Colour of right is established where the description in a deed includes lands claimed by adverse possession and where the holder of a defective title holds a bona fide belief that they own the land" - What gave the claimant constructive possession was not the deed or other instrument which gave title, but the claimant's bona fide belief that he held title coupled with the adverse possession under it for the required time period - The respondents' deed and the deeds of their predecessors in title clearly did not include the disputed land (i.e., real estate agent clearly told the respondents that the disputed land was not included and the respondents tried to buy it from the applicant) - In any event, the court was not satisfied that the respondents or their predecessors in title had the requisite bona fide belief that their title included the disputed land - The court stated that "A final thought: the basis for a claim of colour of right is the belief that you have a claim to property described in your deed (albeit in error) and occupy those lands. Here no such situation exists. The respondents' land as registered under the LRA is clearly bordered by the [applicant's] lands on all sides. To allow a claim based on deeds of predecessors in title seems to me to be outside the doctrine of colour of right even if the respondents had proved a colour of right in their predecessors in title" - See paragraphs 17 to 38.

Real Property - Topic 5646

Title - Extinguishment, prescription and adverse possession - Possession - Possessory title - Establishment of - [See Real Property - Topic 5705 ].

Real Property - Topic 5682

Title - Extinguishment, prescription and adverse possession - Open possession - What constitutes open possession - [See Real Property - Topic 5705 ].

Real Property - Topic 5705

Title - Extinguishment, prescription and adverse possession - Continuity of possession - What constitutes "continuous possession" - Starting in 2011, after an unsuccessful attempt to purchase disputed land from the applicant, the respondents claimed ownership of the disputed land, arguing that they acquired title by adverse possession - The respondents cut down trees, excavated portions of the property and called the RCMP if they saw the applicant on the disputed land, seeking to exclude him from the lands - The Nova Scotia Supreme Court rejected the adverse possession claim - Adverse possession required "open, notorious, peaceful, adverse, exclusive, actual and continuous" possession of the land for the requisite 20 year time period - The absence of any one element defeated the claim - The evidence did not support an uninterrupted, continuous use of the land by the respondents and their predecessors in title for the requisite 20 year period - In any event, every time an employee or agent of the predecessor in title to the applicant (lumber company) entered onto the land, the commencement of the 20 year period was "reset" - Alternatively, any acts of possession relied on to prove a 20 year period of uninterrupted occupation were not "open, visible, notorious and peaceful" - No fences or other acts of possession intended to exclude the true owner were evident - Rather, entries onto the disputed land were random and in no particular area - See paragraphs 39 to 100.

Real Property - Topic 5725

Title - Extinguishment, prescription and adverse possession - Continuity of possession - Interruption of continuity - Entry - [See Real Property - Topic 5705 ].

Real Property - Topic 7028

Easements, licences and prescriptive rights - Creation by express grant - "Lost modern grant" - Starting in 2011, after an unsuccessful attempt to purchase disputed land from the applicant, the respondents claimed ownership of the disputed land, arguing that they acquired title by adverse possession - Alternatively, the respondents claimed an easement based on the doctrine of lost modern grant - The respondents claimed that they and their predecessors in title used the disputed land for recreational purposes, including walking over the property, crossing it to access a river, having bonfires on it, and cutting trees - The Nova Scotia Supreme Court rejected the claim - The respondents failed to establish that the easement sought existed over the disputed land to the river - There was no visible path or trail (i.e., physical evidence of an easement) until the respondents began asserting their claim in 2011 - See paragraphs 101 to 114.

Cases Noticed:

MacDonald v. McCormick (2009), 274 N.S.R.(2d) 258; 874 A.P.R. 258; 2009 NSCA 12, refd to. [para. 19].

Podgorski v. Cook (2013), 329 N.S.R.(2d) 69; 1042 A.P.R. 69; 2013 NSCA 47, refd to. [para. 21].

Pettipas v. Hunter Noel Holdings Ltd. et al. (2015), 366 N.S.R.(2d) 333; 1154 A.P.R. 333; 2015 NSSC 313, refd to. [para. 40].

Spicer et al. v. Bowater Mersey Paper Co. (2004), 222 N.S.R.(2d) 103; 701 A.P.R. 103; 2004 NSCA 39, refd to. [para. 41].

Board of Trustees of Common Lands v. Tanner et al. (2005), 236 N.S.R.(2d) 295; 749 A.P.R. 295; 2005 NSSC 245, refd to. [para. 43].

Morrison v. Muise (2010), 291 N.S.R.(2d) 68; 922 A.P.R. 68; 2010 NSSC 163, refd to. [para. 69].

Balser v. Wiles et al. (2013), 334 N.S.R.(2d) 27; 1059 A.P.R. 27; 2013 NSSC 278, refd to. [para. 102].

MacQueen et al. v. Nova Scotia et al. (2013), 338 N.S.R.(2d) 133; 1071 A.P.R. 133; 2013 NSCA 143, refd to. [para. 115].

Patterson v. Municipal Contracting Ltd. (1989), 98 N.S.R.(2d) 259; 263 A.P.R. 259; 1989 CarswellNS 108 (T.D.), refd to. [para. 120].

Counsel:

Tipper McEwan and Daniel MacKenzie, for the applicant;

Robert Pineo and Leslie Sawers, for the respondents.

This application was heard on October 26-28, 2015, at Halifax, N.S., before Pickup, J., of the Nova Scotia Supreme Court, who delivered the following judgment on March 4, 2016.