Tobias et al. v. Nolan, (1987) 78 N.S.R.(2d) 271 (CA)

JudgeHart, Jones and Macdonald, JJ.A.
CourtSupreme Court of Nova Scotia (Canada)
Case DateApril 15, 1987
JurisdictionNova Scotia
Citations(1987), 78 N.S.R.(2d) 271 (CA)

Tobias v. Nolan (1987), 78 N.S.R.(2d) 271 (CA);

    193 A.P.R. 271

MLB headnote and full text

David C. Tobias and Triton Alliance Limited v. Frederick G. Nolan

(S.C.A. No. 01615)

Indexed As: Tobias et al. v. Nolan

Nova Scotia Supreme Court

Appeal Division

Hart, Jones and Macdonald, JJ.A.

April 15, 1987.

Summary:

The plaintiff and defendants each claimed ownership of a portion of a coastal island. The plaintiffs claimed, inter alia, rectification of a 1935 deed that would give them paper title or, alternatively, title by adverse possession. The plaintiffs also claimed access to the island by virtue of a public road and causeway and damages for an alleged breach of a 1971 contract between the parties respecting treasure searchers on the disputed land. The defendant counterclaimed, claiming title to the disputed land pursuant to a subsequent deed. The defendant claimed there was no public access to the island and also sought damages for breach of the 1971 agreement.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 71 N.S.R.(2d) 92; 171 A.P.R. 92, declared that the defendant owned the disputed land. The court refused to rectify the 1935 deed to give the plaintiffs paper title, found there was no adverse possession, held that the 1971 agreement had been terminated and breached by both parties and assessed damages accordingly. The plaintiff appealed; the defendant cross-appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal. The court allowed the cross-appeal only to the extent of reducing the amount of damages awarded to the plaintiff.

Crown - Topic 6703

Crown lands - Defined - Land along seashore below high water mark - Foreshore - The Nova Scotia Court of Appeal affirmed that a roadway constructed by the seashore below the high water mark was on Crown lands and therefore not private property - See paragraphs 117 to 129.

Damages - Topic 4044

Interference with economic relations - Interference with business - Damages - Measure of - A plaintiff was awarded $15,000.00 damages for lost tourism revenue caused by the defendant's interference with passage on a public highway that constituted the only access to an island for tourists - The Nova Scotia Court of Appeal held that $15,000.00 was a totally erroneous estimate of damages where there was no concrete evidence to support such a substantial loss - The court substituted a nominal award of $500.00 - See paragraphs 130 to 139.

Deeds and Documents - Topic 2527

Interpretation - Property conveyed - Latent ambiguity in description of property - A deed conveyed six lots of land - It was submitted that the deed contained a latent ambiguity, in that parol evidence of extrinsic or collateral matters showed that the true intention of the parties to the deed was to also convey seven additional lots - The Nova Scotia Court of Appeal held that there was insufficient evidence to prove a latent ambiguity - See paragraphs 59 to 67.

Deeds and Documents - Topic 2530

Interpretation - Property conveyed - False particular in otherwise adequate description - A vendor owned 52 acres, being 13 lots of four acres each - A deed specifically conveyed lots 15 to 20 inclusive - At the end of the deed description there was added in pen "said described lands estimated to contain in the whole 150 acres" - The Nova Scotia Court of Appeal held that the words did not create a warranty or covenant as to quantity - The reference to 150 acres had no meaning in reality and constituted an erroneous description of a person or thing in a written document (false demonstration) - See paragraphs 56 to 57.

Deeds and Documents - Topic 4581

Additions and alterations - Alterations - General - The Nova Scotia Court of Appeal stated that "alterations and interlineations in a deed are presumed in the absence of evidence to the contrary to have been made prior to execution. The reason behind such presumption is that a deed cannot be altered, after it is executed, without fraud or wrong; and the presumption is against fraud or wrong" - See paragraph 51.

Deeds and Documents - Topic 5001

Rectification - General - The Nova Scotia Court of Appeal generally discussed the equitable remedy of rectification as it related to modifying the terms of a deed and referred to the extremely heavy burden of proof on parties seeking rectification - See paragraphs 70 to 74.

Deeds and Documents - Topic 5051

Rectification - When available - General - A 1935 deed conveyed title to lots 15 to 20 - Fifty years later, a subsequent purchaser sought to have the deed rectified to include lots 5 and 9 to 14 - The Nova Scotia Court of Appeal affirmed the refusal to grant rectification, because the purchaser failed to discharge the heavy burden of establishing by clear and convincing evidence that the original parties to the deed intended that it include lots 5 and 9 to 14 - See paragraphs 69 to 97.

Equity - Topic 2064

Equitable defences - Laches - Rectification of deeds and documents - A purchaser sought rectification of a 1935 deed conveying lots 15 to 20, to include lots 5 and 9 to 14 - The Nova Scotia Court of Appeal stated that some of the original purchaser's successors in title knew or ought to have known that the deed did not express the original parties' intentions - The court stated that their failure to do anything about it when the intention of all parties to the 1935 deed could have been readily ascertained well might in and of itself defeat the claim for rectification - See paragraphs 98 to 105.

Estoppel - Topic 1161

By conduct - Representation by conduct - Acquiescence - Rectification of deeds - [See Equity - Topic 2064 above].

Evidence - Topic 8

Question of fact - What constitutes - The Nova Scotia Court of Appeal stated that whether given actions constituted adverse possession sufficient to extinguish the title of the true owner was a question of fact for the trial judge to determine - See paragraph 112.

Evidence - Topic 3801

Documentary evidence - Ancient documents - General - The Nova Scotia Court of Appeal referred to the rule that documents that are more than 20 years old and produced from proper custody are admissible as ancient documents - See paragraphs 38 to 43.

Practice - Topic 8800

Appeals - Duty of appellate court regarding fact findings by trial judge - The Nova Scotia Court of Appeal stated that fact findings by a trial judge should not be disturbed by an appellate court unless the trial judge committed some palpable and overriding error which affected his assessment of the facts - See paragraph 112.

Real Property - Topic 4755

Title - Boundaries - Determination of - Shoreline - Accretions and derelictions - The Nova Scotia Court of Appeal referred to the presumption that where land or foreshore is subject to accretion or alluvion, and the added land is above the high water mark, the addition belongs to the owner of the dry land; if the land added is above the low water mark it belongs to the owner of the foreshore - The court stated that where the opposite process (dereliction) takes place and the tidal waters gradually encroach upon land formerly above the high water mark, that land becomes the property of the owner of the foreshore - The court stated that where the change in boundary is the result of deliberate artificial reclamation, the preceding presumptions do not apply, and there is no change in the ownership of the land - See paragraphs 124 to 125.

Real Property - Topic 5609

Title - Extinguishment of title - Adverse possession - Evidence and proof - The Nova Scotia Court of Appeal stated that whether certain acts of possession were sufficient to constitute adverse possession was a question of fact for the trial judge to determine - The court stated that an appellate court was not to disturb such a finding unless the trial judge committed a palpable and overriding error that affected his assessment of the facts - See paragraph 112.

Real Property - Topic 5631

Title - Extinguishment of title - Adverse possession - Possession - Acts constituting - A party alleged entitlement to property through adverse possession because of the cutting of trees and hay off the property, the grazing of livestock and the payment of taxes by the paper title holder's predecessors in possession - The Nova Scotia Court of Appeal affirmed that adverse possession was not proved; that the acts relied on were more in the nature of the intermittent acts of trespass and not exclusive, continuous, open and notorious - See paragraphs 106 to 113.

Words and Phrases

Comprising - The Nova Scotia Court of Appeal defined the word "comprising", as found in the descriptive portion of a deed to land - See paragraphs 53 to 54.

Cases Noticed:

Doe and Murray v. Smith (1848), 5 U.C.Q.B. 225, refd to. [para. 56].

Frantz v. Hanson (1918), 57 S.C.R. 57; 41 D.L.R. 457, refd to. [para. 56].

Re Risser's Beach (1977), 20 N.S.R.(2d) 479; 27 A.P.R. 479, consd. [para. 67].

Ratto v. Rainbow Realty et al. (1985), 68 N.S.R.(2d) 34; 159 A.P.R. 34, consd. [para. 67].

Smith v. Hemeon, [1953] 4 D.L.R. 157, refd to. [para. 74].

Gillis v. Gillis (1979), 32 N.S.R.(2d) 40; 54 A.P.R. 40, refd to. [para. 112].

Statutes Noticed:

Evidence Act, R.S.N.S. 1967, c. 94, sect. 22(1), sect. 22(2) [para. 36].

Authors and Works Noticed:

Phipson on Evidence (11th Ed.), paras. 338, 339 [para. 38].

Norton on Deeds (2nd Ed.), pp. 32-33 [para. 51].

Stroud's Judicial Dictionary (4th Ed.), p. 531 [para. 53].

Black's Law Dictionary (5th Ed. 1979) [para. 57].

Anger and Honsberger, Law of Real Property (2nd Ed. 1985), generally [para. 67]; pp. 1202 [para. 71]; 1204-1205 [para. 72].

Halsbury's Laws of England (4th Ed.), vol. 16, para. 1478 et seq. [para. 101]: vol. 49, para. 295 [para. 124].

Counsel:

Alan V. Parish and Goldie Trager, for the appellant;

Robert L. Barnes and Michael J. Wood, for the respondent.

This appeal and cross-appeal were heard on March 18, 1987, before Hart, Jones and Macdonald, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On April 15, 1987, Macdonald, J.A., delivered the following judgment for the Court of Appeal.

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13 practice notes
  • Brill v. Nova Scotia (Attorney General), 2010 NSCA 69
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • May 31, 2010
    ...135]. Taylor v. Willigar and Skidmore (1979), 32 N.S.R.(2d) 11; 54 A.P.R. 11 (C.A.), refd to. [para. 135]. Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. 136]. Logan v. Levy and Nova Scotia (Attorney General) (1975), 20 N.S.R.(2d) 500; 27 A.P.R. 500......
  • Duggan v. Nova Scotia (Attorney General) et al., 2004 NSSC 66
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • June 27, 2003
    ...(T.D.), refd to. [para. 48]. Ezbeidy v. Phalen (1957), 11 D.L.R.(2d) 660 (N.S.S.C.), refd to. [para. 101]. Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. Bowater Mersey Paper Co. v. Nova Scotia (Attorney General) and Peck (1987), 80 N.S.R.(2d) 229; ......
  • Bowers et al. v. Bowers, (2002) 208 N.S.R.(2d) 297 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • September 20, 2002
    ...refd to. [para. 97]. Tanner v. Tanner (1988), 84 N.S.R.(2d) 165; 213 A.P.R. 165 (T.D.), refd to. [para. 97]. Tobias v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. Gould v. Edmonds (2001), 190 N.S.R.(2d) 254; 594 A.P.R. 254 (S.C.), refd to. [para. 97]. Scheinfeldt......
  • Dartmouth v. Dartmouth Police, (1998) 172 N.S.R.(2d) 352 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • December 7, 1998
    ...3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193, refd to. [para. 6]. Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. Bank of Montreal v. Vancouver Professional Soccer Ltd. (1987), 15 B.C.L.R.(2d) 34 (C.A.), refd to. ......
  • Request a trial to view additional results
13 cases
  • Brill v. Nova Scotia (Attorney General), 2010 NSCA 69
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • May 31, 2010
    ...135]. Taylor v. Willigar and Skidmore (1979), 32 N.S.R.(2d) 11; 54 A.P.R. 11 (C.A.), refd to. [para. 135]. Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. 136]. Logan v. Levy and Nova Scotia (Attorney General) (1975), 20 N.S.R.(2d) 500; 27 A.P.R. 500......
  • Duggan v. Nova Scotia (Attorney General) et al., 2004 NSSC 66
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • June 27, 2003
    ...(T.D.), refd to. [para. 48]. Ezbeidy v. Phalen (1957), 11 D.L.R.(2d) 660 (N.S.S.C.), refd to. [para. 101]. Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. Bowater Mersey Paper Co. v. Nova Scotia (Attorney General) and Peck (1987), 80 N.S.R.(2d) 229; ......
  • Dartmouth v. Dartmouth Police, (1998) 172 N.S.R.(2d) 352 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • December 7, 1998
    ...3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193, refd to. [para. 6]. Tobias et al. v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. Bank of Montreal v. Vancouver Professional Soccer Ltd. (1987), 15 B.C.L.R.(2d) 34 (C.A.), refd to. ......
  • Bowers et al. v. Bowers, (2002) 208 N.S.R.(2d) 297 (SC)
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • September 20, 2002
    ...refd to. [para. 97]. Tanner v. Tanner (1988), 84 N.S.R.(2d) 165; 213 A.P.R. 165 (T.D.), refd to. [para. 97]. Tobias v. Nolan (1987), 78 N.S.R.(2d) 271; 193 A.P.R. 271 (C.A.), refd to. [para. Gould v. Edmonds (2001), 190 N.S.R.(2d) 254; 594 A.P.R. 254 (S.C.), refd to. [para. 97]. Scheinfeldt......
  • Request a trial to view additional results

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