Spicer et al. v. Bowater Mersey Paper Co., 2004 NSCA 39

• Judge: Roscoe, Cromwell and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 16, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 39;(2004), 222 N.S.R.(2d) 103 (CA)

Spicer v. Bowater Mersey Paper (2004), 222 N.S.R.(2d) 103 (CA);

 701 A.P.R. 103

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. MR.036

Bowater Mersey Paper Company Limited (appellant) v. Bruce Spicer, Terrance P. Bent, Bryan H. Bent, John L. Merry and Rick Hunter (respondents)

(CA195452; 2004 NSCA 39)

Indexed As: Spicer et al. v. Bowater Mersey Paper Co.

Nova Scotia Court of Appeal

Roscoe, Cromwell and Hamilton, JJ.A.

March 16, 2004.

Summary:

In 1975, the plaintiffs constructed a cabin in the middle of several hundred acres of woodland owned by Bowater. The cabin was used frequently for hunting, fishing and camping. Bowater claimed not to have knowledge of the cabin until 1981, when it constructed an access road in the area to commence logging. The camp could not be seen from the air or the nearby lake. When Bowater sought to remove the plaintiffs (after the plaintiffs declined to execute a lease prepared by Bowater), the plaintiffs applied for a declaration of title to the cabin and contiguous land by adverse possession.

The Nova Scotia Supreme Court, in a judgment reported (2003), 212 N.S.R.(2d) 152; 665 A.P.R. 152, held that the plaintiffs had acquired title to the cabin and contiguous land by adverse possession on the basis of continuous open and notorious use for more than 20 years. Bowater appealed.

The Nova Scotia Court of Appeal allowed the appeal. The trial judge erred in finding that the plaintiffs had the requisite exclusive possession to establish title by adverse possession.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Real Property - Topic 5608 ].

Real Property - Topic 5608

Title - Extinguishment, prescription and adverse possession - Adverse possession and prescription - General principles - When time begins to run - In 1975, the plaintiffs constructed a cabin in the middle of several hundred acres of woodland owned by Bowater - The cabin was used frequently for hunting, fishing and camping - Bowater claimed not to have knowledge of the cabin until 1981, when it constructed an access road in the area to commence logging - The camp could not be seen from the air or the nearby lake - When Bowater sought to remove the plaintiffs (after the plaintiffs declined to execute a lease prepared by Bowater), the plaintiffs applied for a declaration of title to the cabin and contiguous land by adverse possession - The trial judge held that the plaintiffs had acquired title to the cabin and contiguous land by adverse possession on the basis of open and notorious use for more than 20 years - The 20 year period commenced running in 1975, upon open and notorious use and occupation of the lands, not in 1981 when Bowater became aware of the existence of a cabin which was there to be seen since 1975 (i.e. discoverability rule did not apply) - Actual knowledge was not required where there was open, notorious and continuous use and occupation (i.e., no concealment or attempt to evade detection by plaintiffs) - Continuity was not negated by seasonal usage of the cabin - The Nova Scotia Court of Appeal agreed that the discoverability rule did not apply, but held that the trial judge erred in finding adverse possession where the plaintiffs failed to prove exclusive possession - The court found it unnecessary to determine whether the trial judge erred in finding that the 20 year period commenced in 1975 rather than 1981.

Real Property - Topic 5682

Title - Extinguishment, prescription and adverse possession - Open possession - What constitutes open possession - [See Real Property - Topic 5608 ].

Real Property - Topic 5686

Title - Extinguishment, prescription and adverse possession - Notorious possession - General - [See Real Property - Topic 5608 ].

Real Property - Topic 5691

Title - Extinguishment, prescription and adverse possession - Exclusive possession - General - [See Real Property - Topic 5608 ].

Real Property - Topic 5705

Title - Extinguishment, prescription and adverse possession - Continuity of possession - What constitutes "continuous possession" - [See Real Property - Topic 5608 ].

Cases Noticed:

Dauphinee et al. v. Fralick Estate et al. (2003), 219 N.S.R.(2d) 238; 692 A.P.R. 238 (C.A.), refd to. [para. 7].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 9].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 9].

Ezbeidy v. Phalen (1958), 11 D.L.R.(2d) 660 (N.S.S.C.), refd to. [para. 12].

Lynch et al. v. Lynch et al. (1985), 71 N.S.R.(2d) 69; 171 A.P.R. 69 (T.D.), refd to. [para. 14].

National Trust Co. v. Chriskim Holdings Inc. (1990), 80 Nfld. & P.E.I.R. 312; 249 A.P.R. 312 (P.E.I.T.D.), refd to. [para. 15].

Deadder v. North Kent Development (1979), 34 N.S.R.(2d) 386; 59 A.P.R. 386 (S.C.), refd to. [para. 16].

Carson v. Musialo, [1940] 4 D.L.R. 651 (Ont. C.A.), refd to. [para. 17].

Sherren v. Pearson (1887), 14 S.C.R. 581, refd to. [para. 18].

Newfoundland v. Collingwood (1996), 138 Nfld. & P.E.I.R. 1; 431 A.P.R. 1 (Nfld. C.A.), refd to. [para. 29].

Lundrigans Ltd. v. Prosper and Blake (1981), 38 Nfld. & P.E.I.R. 10; 108 A.P.R. 10; 132 D.L.R.(3d) 727 (Nfld. C.A.), refd to. [para. 23].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1989, c. 258, sect. 10, sect. 13, sect. 22 [para. 10].

Authors and Works Noticed:

Anger and Honsberger, The Law of Real Property (2nd Ed. 1985), p. 1515 [para. 13].

Counsel:

Colin D. Piercey, for the appellant;

W. Bruce Gillis, Q.C., for the respondents.

This appeal was heard on January 13, 2004, at Halifax, N.S., before Roscoe, Cromwell and Hamilton, JJ.A., of the Nova Scotia Court of Appeal.

On March 16, 2004, Roscoe, J.A., delivered the following judgment for the Court of Appeal.