Pipes v. Maskell, (1992) 114 N.S.R.(2d) 271 (TD)

• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 14, 1992
• Jurisdiction: Nova Scotia
• Citations: (1992), 114 N.S.R.(2d) 271 (TD)

Pipes v. Maskell (1992), 114 N.S.R.(2d) 271 (TD);

  313 A.P.R. 271

MLB headnote and full text

David Theodore Pipes (plaintiff/defendant by counterclaim) v. Carol Joan Maskell (defendant/plaintiff by counterclaim)

(S.A.M. No. 1677)

Indexed As: Pipes v. Maskell

Nova Scotia Supreme Court

Trial Division

Glube, C.J.T.D.

May 14, 1992.

Summary:

Both parties claimed title to a camp prop­erty. The plaintiff sought a declaration that the defendant was trespassing on his land, and an injunction restraining her from con­tinuing the trespass. The defendant counter­claimed, alleging trespass by the plaintiff and sought a declaration establishing a boundary between the parties.

The Nova Scotia Supreme Court, Trial Division, dismissed the plaintiff's claim and allowed the counterclaim and established the boundary.

Real Property - Topic 5601

Title, extinguishment of title, limitation of actions and adverse possession - Adverse possession defined - Pipes acquired prop­erty in 1944 and built a camp - He moved out of the province in 1951 - Brown acquired a property in 1963 described as to the east of Pipes' property - Brown built a camp on Pipes' land, believing it to be his - Pipes saw Brown's camp in 1974 - He sold his property to another - Maskell purchased Brown's land in 1984 - Pipes' son reacquired Pipes' property and asserted title against Maskell - The Nova Scotia Supreme Court, Trial Division, held that Maskell obtained title through adverse possession for more than 20 years (actual, open, visible, notorious and continuous possession) - See paragraphs 18 to 22.

Real Property - Topic 6092

Title, extinguishment of title, limitation of actions and adverse possession - Defences - Disability - Section 19 of the Limitation Act extended the time limit for bringing an action to recover land for a person under a disability - The owner of a summer camp property moved from the province to reside permanently elsewhere - After he sold the property, the subsequent owner sought application of the section - The Nova Scotia Supreme Court, Trial Divi­sion, rejected the submission - See para­graphs 23 to 31.

Real Property - Topic 6092

Title, extinguishment of title, limitation of actions and adverse possession - Defences - Disability - Pipes moved from the prov­ince in 1951 - In 1974, he visited property he bought in 1944 and discovered that Brown had built a camp on Pipes' prop­erty, believing it was his - Pipes sold his property to Hollis in 1976 - In 1988 Pipes' son repurchased the property and asserted that the limitation period for bringing an action was extended to 40 years under s. 19 of the Limitation of Actions Act (dis­ability), where his father resided out of the province - The Nova Scotia Supreme Court, Trial Division, declined to hold that the limitation period was extended, where any disability ended with the 1976 transfer to a resident of the province.

Cases Noticed:

Taylor v. Willigar and Skidmore (1979), 32 N.S.R.(2d) 11; 54 A.P.R. 11, refd to. [para. 20].

Tanner v. Tanner and Croft (1988), 84 N.S.R.(2d) 165; 213 A.P.R. 165, refd to. [para. 21].

Lynch et al. v. Lynch et al. (1985), 71 N.S.R.(2d) 69; 171 A.P.R. 69, refd to. [para. 21].

Ferguson (R.B.) Construction Ltd. v. Orm­iston et al. (1989), 91 N.S.R.(2d) 226; 233 A.P.R. 226, refd to. [para. 27].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 9 [para. 24]; sect. 19, sect. 20 [para. 25]; sect. 21 [para. 24].

Registry Act, R.S.N.S. 1989, c. 392, sect. 18 [para. 29].

Counsel:

D.B. Sharford, for the plaintiff;

M. Maddelena, for the defendant.

This case was heard before Glube, C.J.T.D., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on May 14, 1992.