Zinck v. Nova Scotia (Attorney General), Hatt, Walters, Butler, Horne, Isnor, Ferris, Delong, Bond, Dorey and Eisenhaur, (1979) 34 N.S.R.(2d) 12 (CA)

• Judge: Cooper, Jones and Macdonald, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: August 13, 1979
• Jurisdiction: Nova Scotia
• Citations: (1979), 34 N.S.R.(2d) 12 (CA)

Zinck v. N.S. (A.G.) (1979), 34 N.S.R.(2d) 12 (CA);

    59 A.P.R. 12

MLB headnote and full text

Zinck v. Attorney General of Nova Scotia, Hatt, Walters, Butler, Horne, Isnor, Ferris, Delong, Bond, Dorey and Eisenhaur

(S.C.A. 00353)

Indexed As: Zinck v. Nova Scotia (Attorney General), Hatt, Walters, Butler, Horne, Isnor, Ferris, Delong, Bond, Dorey and Eisenhaur

Nova Scotia Supreme Court

Appeal Division

Cooper, Jones and Macdonald, JJ.A.

August 13, 1979.

Summary:

This case arose out of the plaintiff's application for a certificate of title under the Quieting Titles Act, R.S.N.S. 1967, c. 259. The plaintiff and his predecessors in title for several decades kept a 35 acre tract of land fenced and used it for pasturing cattle. The defendants only raised a claim to the land after the plaintiff brought his application. Grant, J., of the Nova Scotia Supreme Court, Trial Division, in a judgment reported at paragraphs 29 to 95 below allowed the application. The defendants appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Estoppel - Topic 1365

Estoppel by conduct - Laches or delay - Claim to title to land - The plaintiff and his predecessors in title used 35 acres of land for several decades for pasturing cattle - The defendants during that time made no claim to the property and only made a claim when the plaintiff brought an application for a certificate of title - The Nova Scotia Supreme Court, Trial Division, held that, if the defendants had any rights to the land which were not barred by the Limitation of Actions Act, R.S.N.S. 1967, c. 168, they were estopped from exercising them - See paragraphs 71 and 81.

Real Property - Topic 5601

Title - Extinguishment of title - Limitation of actions and adverse possession - Adverse possession defined - The Nova Scotia Court of Appeal set out the nature and the character of the possession that is necessary to extinguish the title of a true owner of land - See paragraphs 24 to 25.

Real Property - Topic 5631

Title - Extinguishment of title - Limitation of actions and adverse possession - Acts constituting possession - The Nova Scotia Court of Appeal held that the acts over several decades of fencing land and pasturing cattle on it were sufficient acts of possession to extinguish the title of the true owner - See paragraphs 1 to 25.

Cases Noticed:

Countway v. Haughan et al. (1976), 15 N.S.R.(2d) 138; 14 A.P.R. 138, affirming 15 N.S.R.(2d) 143; 14 A.P.R. 143, refd to. [paras. 6 and 63].

Taylor v. Willigar et al. (1979), 32 N.S.R.(2d) 11; 54 A.P.R. 11, affirming 32 N.S.R.(2d) 23; 54 A.P.R. 23, refd to. [paras. 24 and 79].

McConaghy v. Denmark (1880), 4 S.C.R. 609, appld. [para. 24].

Sherren v. Pearson (1887), 14 S.C.R. 581, appld. [para. 24].

Godson Contracting Co. v. Grand Trunk R.W. Co., [1917] O.W.N. 241 (O.H.C.), appld. [para. 25].

Statutes Noticed:

Limitation of Actions Act, R.S.N.S. 1967, c. 168, sect. 9, sect. 21 [para. 22].

Authors and Works Noticed:

Anger and Honsberger, Canadian Law of Real Property (1959), p. 789 [para. 24].

Halsbury's Laws of England (3rd Ed.), vol. 24, para. 441 [para. 23].

Counsel:

Edmund R. Saunders, Q.C., for the appellants;

Samuel R. Lamey, for the respondent.

This case was heard on June 11, 1979, at Halifax, N.S., before COOPER, JONES and MacDONALD, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

On August 13, 1979, COOPER, J.A., delivered the following judgment for the Appeal Division: