Simonds v. Phillips, (2015) 441 N.B.R.(2d) 391 (TD)

• Judge: DeWare, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 08, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 441 N.B.R.(2d) 391 (TD);2015 NBQB 200

Simonds v. Phillips (2015), 441 N.B.R.(2d) 391 (TD);

    441 R.N.-B.(2e) 391; 1152 A.P.R. 391

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Temp. Cite: [2015] N.B.R.(2d) TBEd. OC.019

Renvoi temp.: [2015] N.B.R.(2d) TBEd. OC.019

Garry Simonds and Franklin Simonds (plaintiffs) v. Reginald Phillips and Janette Phillips (defendants)

(WC-46-13; 2015 NBQB 200; 2015 NBBR 200)

Indexed As: Simonds v. Phillips

Répertorié: Simonds v. Phillips

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

DeWare, J.

October 9, 2015.

Summary:

Résumé:

The plaintiffs sued the defendants, alleging that the defendants trespassed upon their property and clear cut approximately 10 acres. The defendants claimed that the property on which they clear cut was their own and moved for summary judgment.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion for summary judgment.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or appropriate - The plaintiffs sued the defendants, alleging that the defendants trespassed upon their property and clear cut approximately 10 acres - The defendants claimed that the property on which they clear cut was their own and moved for summary judgment - The defendants relied on a property survey by Morgan and deeds from 1952 and 2008 - The plaintiffs maintained that the property line was as set out in a survey by MacFarlane in addition to Service New Brunswick mapping and therefore the defendants trespassed upon their lands in cutting the wood - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion for summary judgment - The court was not able to conclude that this was one of the clearest of cases where summary judgment would be appropriate - The trial process was required in order to assess the evidence of the witnesses, and in particular the experts, in order to properly determine the location of the boundary line which divided the two parcels of land.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - [See Practice - Topic 5702 ].

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 19].

Morrow v. Aviva Canada Inc. (2004), 279 N.B.R.(2d) 77; 732 A.P.R. 77 (C.A.), refd to. [para. 19].

Kingston v. Highland (1919), 47 N.B.R. 324 (S.C.), refd to. [para. 23].

Maranda v. Eastland Industries Ltd. (2015), 440 N.B.R.(2d) 388; 1148 A.P.R. 388; 2015 NBQB 193, refd to. [para. 27].

Counsel:

Avocats:

James C. Crocco, for the plaintiffs;

Stephen L. Wilson, Q.C., for the defendants.

This motion was heard on September 8, 2015, by DeWare, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following decision on October 9, 2015.