Picard v. Émond, 2004 NBQB 17

• Judge: LaVigne, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 13, 2004
• Jurisdiction: New Brunswick
• Citations: 2004 NBQB 17;(2004), 269 N.B.R.(2d) 220 (TD)

Picard v. Emond (2004), 269 N.B.R.(2d) 220 (TD);

    269 R.N.-B.(2e) 220; 707 A.P.R. 220

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[French language version follows English language version]

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

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Temp. Cite: [2004] N.B.R.(2d) TBEd. JA.023

Robert Picard (applicant) v. Paul H. Émond and Mona Émond (adverse claimants)

(E/M/19/03; 2004 NBQB 17)

Indexed As: Picard v. Émond

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Edmundston

LaVigne, J.

January 13, 2004.

Summary:

The applicant filed an application under the Quieting of Titles Act for a certificate of title that he was the owner in fee simple of a piece of land, subject to the exceptions and qualifications contained in s. 18(1)(a) (reser­vations in the original grant from the Crown) and s. 18(1)(b) (municipal charges for local improvements). The applicant however asked that the certificate of title sought be free of the exceptions and qualifications set out under s. 18(1)(c) (title or lien in respect of the land or of adjoining land), s. 18(1)(d) (lease) and 18(1)(e) (easement). The land referred to in the application included eight parcels; the adverse claimants objected to the title to one of these parcels.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the applica­tion. The Court stated that the applicant was the owner in fee simple of the land referred to in the application. The Court relied on the fact that the applicant had documentary title to the disputed parcel and that he and his predecessors in title had exercised valid adverse possession on the whole of the property by taking possession of it under colour of title and having thereafter occupied it continuously without interruption. The Court also stated that an easement which allegedly existed on the disputed parcel no longer existed because it was abandoned.

Real Property - Topic 4747

Title - Boundaries - Determination of - By act or agreement of parties (conventional lines) - A predecessor in title of the ad­verse claimants, then owner of land with frontage on a lake, sold a strip of land along the shore to a predecessor in title of the applicant - In the description, the pre­decessor seller retained a right-of-way on the strip he was selling - The applicant and adverse claimants both claimed title to a parcel which was part of the strip of land that had been sold - The adverse claimants indicated that the predecessor seller had retained a piece of land with frontage on the lake - The applicant argued the oppo­site - He alleged that the description of the said strip of land covered the disputed parcel - He also added that reservation of a right-of-way over the strip of land would not have been necessary if the predecessor seller had retained a parcel of land on the lake - The New Brunswick Court of Queen's Bench, Trial Division, interpreted the deed and held that the predecessor seller did not retain a parcel of land on the lake - See paragraphs 31 to 57.

Real Property - Topic 4934

Title - Boundaries - Evidence - Extrinsic evidence - A map dated 1987, distributed by the Land Registrations and Information Services with respect to land for which title was disputed, appeared to show that the adverse claimants were the owners of the land in question - A map issued in July 1998 by the New Brunswick Geographic Information Corporation appeared to indi­cate the same thing - However, a map issued in 2000 by PLANET, Service New Brunswick, appeared to indicate that the applicant owned the disputed parcel - There was a warning on all the maps to the effect that they were graphic represen­tations of the real property boundaries and provided approximate area, configuration and location information - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that these maps should not be used for legal descriptions - Given the warnings and given the contradiction in the maps, they did not assist the court in deter­mining who was the owner of the disputed parcel - See paragraphs 31 to 32.

Real Property - Topic 5631

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

Real Property - Topic 5636

Title - Extinguishment, prescription and adverse possession - Entry under colour of title - The applicant and the adverse claim­ants both claimed title to property which was used as access to another property for summer holiday activities - The adverse claimants argued that the applicant did not prove adverse possession because his occu­pation had not been continuous for 20 consecutive years since the applicant and his predecessors did not occupy the prem­ises during the winter - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, rejected that argument - The appli­cant and his predecessors had taken posses­sion of the premises with colour of title and had thereafter occupied them as much as nature would allow given the seasonal nature of the activities for which they were used - See paragraphs 68 to 144.

Cases Noticed:

Côté v. Desjardins (2000), 232 N.B.R.(2d) 343; 598 A.P.R. 343 (C.A.), refd to. [para. 24].

Burke Estate et al. v. Ormiston (1991), 107 N.S.R.(2d) 91; 290 A.P.R. 91 (T.D.), consd. [para. 47].

Hallowell v. Munn (1997), 186 N.B.R.(2d) 351; 476 A.P.R. 351 (C.A.), refd to. [para. 54].

Friolet v. Friolet (1998), 201 N.B.R.(2d) 118; 514 A.P.R. 118 (C.A.), refd to. [para. 72].

Landry v. Landry (1991), 117 N.B.R.(2d) 181; 295 A.P.R. 181 (C.A.), consd. [para. 72].

Chittick v. Gilmore (1974), 9 N.B.R.(2d) 38; 1 A.P.R. 38 (C.A.), refd to. [para. 72].

Grew v. Lord et al. (1993), 132 N.B.R.(2d) 5; 337 A.P.R. 5 (T.D.), refd to. [para. 75].

Vihvelin v. Saint John (City) (2000), 229 N.B.R.(2d) 1; 592 A.P.R. 1 (T.D.), refd to. [para. 151].

Authors and Works Noticed:

Bastarache, Michel, and Boudreau-Ouellet, Andréa, Précis du droit des biens (2nd Ed. 2001), pp. 260, 261 [para. 76]; 263 [para. 77]; 267, 268 [para. 151]; 274, 275 [para. 155].

Counsel:

Bernard Valcourt, Q.C., for the applicant;

Sylvain Pelletier, for the adverse claimants Paul H. Émond and Mona Émond.

This application was heard on October 1, 2, 24 and 31 and November 4, 2003, by LaVigne, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Edmundston.

LaVigne, J., delivered the following deci­sion on January 13, 2004.