Webster v. Duncanson et al., (2015) 357 N.S.R.(2d) 199 (CA)

Judge:MacDonald, C.J.N.S., Farrar and Bryson, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:March 17, 2015
Jurisdiction:Nova Scotia
Citations:(2015), 357 N.S.R.(2d) 199 (CA);2015 NSCA 29
 
FREE EXCERPT

Webster v. Duncanson (2015), 357 N.S.R.(2d) 199 (CA);

    1127 A.P.R. 199

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.047

Robert K. Duncanson (appellant) v. Marilyn Webster, Dorothy Leon Melanson, Elaine Marie Mahar, James Phillip Mooney, Joseph Fraser Mooney, Grace Allison Nickerson, Neil Duncanson and Michael Hurlburt (respondents)

(CA 428172; 2015 NSCA 29)

Indexed As: Webster v. Duncanson et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Farrar and Bryson, JJ.A.

March 26, 2015.

Summary:

In 1966, the plaintiffs' father (Fraser Mooney) purchased property from the defendants' grandfather (Frederick Duncanson). Three of the property's boundaries were certain. The description of the fourth boundary contained a latent ambiguity, as it referred to "the land of Keith Duncanson", and Keith Duncanson did not hold title to any land in the area. A dispute arose in 2007 when the defendants began to cut an access road on what the plaintiffs alleged was the Mooney property. The plaintiffs sought a declaration that the boundary line between the Mooney and Duncanson properties was as surveyed by the plaintiffs' surveyor. The defendants also sought a declaration as to the boundary line or, in the alternative a declaration that one of the defendants was the owner of the lands by virtue of adverse possession.

The Nova Scotia Supreme Court, in a decision reported at (2014), 344 N.S.R.(2d) 158; 1089 A.P.R. 158, granted the declaration sought by the plaintiffs. The defendants' claim of adverse possession was dismissed. One of the defendants appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Evidence - Topic 6752

Parol evidence rule - Interpretation of a legal act - Evidence of surrounding circumstances - Where document ambiguous - [See Real Property - Topic 4934 ].

Real Property - Topic 4724

Title - Boundaries - Rules of construction - Where document vague or contains latent ambiguity - [See Real Property - Topic 4934 ].

Real Property - Topic 4934

Title - Boundaries - Evidence - Extrinsic evidence - In 1966, the plaintiffs' father (Fraser Mooney) purchased property from the defendants' grandfather (Frederick Duncanson) - Three of the property's boundaries were certain - The description of the northern boundary contained a latent ambiguity, as it referred to "the land of Keith Duncanson", and Keith Duncanson did not hold title to any land in the area - A dispute arose in 2007 when the defendants began to cut an access road on what the plaintiffs claimed was the Mooney property - Both parties sought a declaration as to the location of the northern boundary - The trial judge, relying on extrinsic evidence of the parties' intentions in 1966, found in favour of the plaintiffs - One of the defendants appealed - He argued that the trial judge should not have resorted to extrinsic evidence, but should have fixed the boundary line based on the acreage of 100 acres "more or less" as described in the 1966 deed - The Nova Scotia Court of Appeal dismissed the appeal - The approach suggested by the defendant ignored the ambiguity in the words "more or less" - The trial judge was justified in entertaining evidence of what "the land of Keith Duncanson" meant because it described a key fact which was known or ought to reasonably have been known to the parties at the time - Evidence of surrounding circumstances was always permitted.

Cases Noticed:

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 5].

Counsel:

Jonathan G. Cuming, for the appellant;

Rubin Dexter, for the respondent.

This appeal was heard in Halifax, N.S., on March 17, 2015, before MacDonald, C.J.N.S., Farrar and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the court was delivered on March 26, 2015.

To continue reading

FREE SIGN UP