Citation: Clow Quieting Titles Date: PESCTD 37 Docket: S1-GS Registry: Charlottetown

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1 Citation: Clow Quieting Titles Date: PESCTD 37 Docket: S1-GS Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION IN THE MATTER OF the petition of Wallace Elmer Clow of Grand Tracadie, in Queens County prince Edward Island, to Quiet the Title to lands located at or near Township No. 35, in Queens County, Province of Prince Edward Island; -and- IN THE MATTER of the Quieting Titles Act, R.S.P.E.I. 1988, Cap. Q-2 BEFORE: THE HONOURABLE CHIEF JUSTICE J. ARMAND DESROCHES Mitchell MacLeod Catherine Parkman Solicitor on behalf of the Petitioner Solicitor on behalf of the Respondents Place and Dates of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island December 2, 3, 4, 5, 2002 Charlottetown, Prince Edward Island April 30, 2003

2 Citation: Clow Quieting Titles 2003 PESCTD 37 NO. S1-GS IN THE MATTER OF the petition of Wallace Elmer Clow of Grand Tracadie, in Queens County prince Edward Island, to Quiet the Title to lands located at or near Township No. 35, in Queens County, Province of Prince Edward Island; -and- IN THE MATTER of the Quieting Titles Act, R.S.P.E.I. 1988, Cap. Q-2. Prince Edward Island Supreme Court - Trial Division Before: DesRoches, C.J. Dates of Hearing: December 2, 3, 4, 5, 2002 Date of Decision: April 30, 2003 [9 Pages] REAL PROPERTY - Quieting of Titles - Registration of Deeds - Where petitioner has met requirements to claim title based on possession. Cases Considered: Charlottetown Area Development Corporation v. Tweel, [1990] 85 Nfld. & P.E.I.R. 281; Re: LeClair Estate, 2002 PESCTD 13; Re: MacEachern (1996), 147 Nfld. & P.E.I.R Statutes Considered: Quieting Titles Act, R.S.P.E.I. 1988, Cap. Q-2; Statute of Limitations Act, R.S.P.E.I. 1988, Cap. S-7. Mitchell MacLeod, solicitor on behalf of the Petitioner Catherine Parkman, solicitor on behalf of the respondents

3 DesRoches C.J.: [1] This is a dispute between neighbours about the ownership of land. It involves the petition of Wallace Elmer Clow of Grand Tracadie, in Queens County who claims to be the absolute owner in fee simple in possession of a certain piece of property located at Grand Tracadie. The respondents, William Lloyd Clow, Willaim Ashley Clow and Nina Clow, have filed an objection, claiming to be the registered owners of the land. Both the petitioner and the respondents have a paper chain of title to the land, but the quality of their respective claims based on the paper chains of title is not in issue in this proceeding. The issue before this Court is the merit of the petitioner s claim based on occupation and use. The Facts [2] The chain or chains of title pertaining to the parcels of land in question originate in Crown grants in the late 1800's. Over the course of the last century, the lands were bought and sold a number of times. At of this date, looking back, there is ambiguity, if not errors, in the description of the property being conveyed in the different instruments. And also as of this date, both the petitioner and respondents have registered deeds which each party claims establishes good title. As noted above however, the quality of their respective paper titles is not the issue before this Court. The focus of this matter is on the validity of the petitioner s claim based on adverse possession. [3] The petitioner states he has demonstrated his continuous and uninterrupted use of the property in question since 1956, and since at least since 1931 through his predecessors in title. [4] On January 6, 1954, William W. Clow, the petitioner s father and predecessor in title, registered a deed to a piece of land generally referred to as parcel and by description containing approximately 40 acres of land located to the south of the Tracadie Road. The deed to William W. Clow was dated August 22, 1945 although it was not registered until When William W. Clow bought and took possession of this property, he purchased it as a single parcel of land. However, this single parcel had been formed when a predecessor in title purchased two adjoining blocks of land (hereinafter referred to as block A and block B ) and the titles merged to form a single parcel. The southern boundary of the land conveyed to William W. Clow was defined in reference to a boundary line marking the northern edge of lands known as the Tracadie Commons. A few years later by deed dated January 6, 1956 and registered on January 24, 1956, William W. Clow and his wife conveyed the same parcel of land to their son, the petitioner. [5] Prior to that date, however, in 1952 William Lloyd Clow, one of the respondents, registered a deed to a piece of land generally referred to as parcel

4 Page: and by description containing approximately two acres of land also located to the south of the Tracadie Road. This parcel of land appears to have abutted the block B portion of the land above mentioned, that is parcel at, roughly speaking, a northern corner, and like parcel , the southern boundary was defined by reference to the boundary marking the northern edge of the Tracadie Commons. [6] By a so-called Deed of Conveyance and Correction dated May 18, 2000 and registered on June 26, 2000, the area contained in the parcel of land owned by William Lloyd Clow was amended from two acres to 29.5 acres. It is by this correction that William Lloyd Clow advances the position that because of the southern boundary of his land being defined in relationship to the Tracadie Commons, his deed includes all of the block B portion of the land claimed by his neighbour, the petitioner. Thus, the respondents maintain the description of the acreage, that is two acres more or less in the 1952 deed, was in error and that the correct acreage should be 20 to 30 acres. Thus William Lloyd Clow s deed was corrected to include block B of the land occupied and used by the petitioner. [7] At this point, it should be noted that the northern boundary of the Tracadie Commons, that is the line of demarcation used as the southern boundary for the above described lands, appears at different locations in various historical records. The northernmost placement of the Tracadie Commons line would be consistent with the deed for parcel containing two more or less acres, while the southernmost placement of the line would be consistent with parcel , that is blocks A and B containing by description 44 acres more or less. Thus it may well be that the deeds in question use the same phrase, the Tracadie Commons to denote different geographic locations. [8] The petitioner s claim of title pursuant to the Quieting Titles Act, R.S.P.E.I. 1988, Cap. Q-2 is advanced in the context of the deed of conveyance and correction whereby the respondents assert ownership of block B of the land possessed by the petitioner. The respondents assertion of ownership by paper title is based on two premises: first, as noted above, that the term Tracadie Commons as used in their deed of title refers to the southernmost placement of the Tracadie Commons line; second, and predicated on the veracity of the first assumption, that their predecessors in title, and I here refer to the chain of conveyance from Mary Ellen Walsh to Michael Robison and then to Donald Robison, had good title to convey. The merit of these assumptions is the subject of another proceeding. [9] For the purposes of this hearing, I have assumed that the respondents have title, first registered in 1952, to the land identified as parcel which includes by description block B of the land in the possession of the petitioner, Wallace Elmer Clow. On this point, in his final submission to the Court, the petitioner conceded that his

5 Page: 3 chain of title to block B is obscured by the double conveyance of these lands by the widow of John Walsh and that at a crucial link in the chain of titles, the registration of the respondents title precedes the petitioner s registration in time. The Law [10] The law pertaining to an application for a quieting title application is well established. In Charlottetown Area Development Corporation v. Tweel, [1990] 85 Nfld. & P.E.I.R. 281 ( CADC ), the Appeal Division of this Court addressed the proper use of the Quieting Titles Act and the implications of the grant of a certificate of title under the Act. Writing for the court, Justice C. R. McQuaid stated, at pages : [10] The implications of a certificate of title issued by the court under the Quieting of Titles Act are extremely far-reaching. It constitutes, to the owner of the lands therein mentioned, a guarantee on the part of the Supreme Court that his title is absolute and beyond question by the world at large, including the Crown, and notice to the public, including the Crown, that the lands are untouchable in the hands of the holder of the certificate. [11] It is therefore a process which should not be entered upon casually by the landholder, or dealt with casually by the court. The grant of a certificate is not a remedy as of right, but one which is discretionary in the court, which the court may, not must, grant if it is satisfied respecting title, and as well, considers that the certificate can be safely granted.... [12] The primary intent of the procedure is the tidying up of a line of title in which there exist gaps arising out of an earlier intestacy, inter alia, the loss of an unregistered deed, or other circumstances of like nature, which in appropriate cases, has been held by this court to include title arising out of adverse possession. [11] Addressing the onus of proof required to merit the issuance of a certificate of title, Justice C. R. McQuaid stated, at page 284: [15] As noted above, the onus lies upon the applicant throughout to satisfy the court that it does, in fact, possess such a title to the lands, as to be certified as being indefeasible, and not subject to challenge. In my opinion, that goes beyond the establishment of a good title on the balance of probabilities. The finality of the certificate requires something more than that. [16] No onus lies upon the intervening respondent to establish that his title to the disputed lands was superior to that of the applicant, and to satisfy the Court accordingly. It is sufficient for him, in my opinion, to bring forth such facts in his favour, which cast a shadow on the title of the applicant, and if the applicant is unable to rebut fully the prima facie evidence adduced reflecting adversely on his title, then no certificate should issue.

6 Page: 4 [12] In Re: LeClair Estate, 2002 PESCTD 13, Justice Matheson of this Court surveyed the case law on establishing adverse possession and wrote the following concise summary: [11] In MacIsaac v. MacEachern (1977), 13 Nfld. & P.E.I.R. 375, the Appeal Division of the Supreme Court of Prince Edward Island set out the elements necessary to extinguish the title of the true owner as:... actual, constant, open, visible and notorious occupation excluding the true owner. [12] In Re: MacEachern (1996), 147 Nfld & P.E.I.R. 146, the court reiterated that to prove title for adverse possession under the Quieting Titles Act, the petitioner must show: (a) (b) (c) actual possession by himself and those through whom he claims; that such intention to possess was with the intention of excluding from possession the true owners; and that the true owner s possession was effectively excluded for the statutory period. [13] The time commences to run against the true owner only from the last date when all three requirements have been met. In addition the possession...must not be equivocal, occasional or for a special or temporary purpose... (Sherren v. Pearson (1887) 14 S.C.R. 581, quoted with approval in Re: MacEachern supra, p. 169). [14] The nature of exclusionary possession was discussed by Madam Justice Wilson in Keefer v. Arilotta (1976), 72 D.L.R. (3d) 182 at p. 193: A possessory title cannot, however, be acquired against him (the true owner) by depriving him of uses of his property that he never intended or desired to make of it. The animus possidendi which a person claiming possessory title must have is an intention to exclude the owner from such uses as that owner wants to make of his property. [15] This was reiterated in the more recent case, Re: Squires, supra (1999) 182 Nfld. & P.E.I.R. 318, where Justice Mitchell, stated: [3]...The law is clear that one of the conditions that must exist in order to extinguish the title of a true paper owner is that the possessor must have occupied the property in question in a way that is inconsistent with the true owner s intended use for at least twenty uninterrupted years. For the Statute of Limitations to run, possession must be without the permission of and to the exclusion of the paper title

7 Page: 5 owner. The Evidence of Use [13] In determining the matter of the occupation and use of the land by the petitioner and by the respondents, the Court had the benefit of evidence by way of affidavits and the testimony of neighbours, as well as reports and the testimony of expert land surveyors plus numerous pieces of documentary evidence including historic and aerial maps, survey plans, letters, deeds of conveyance and chains of title. [14] In support of the petitioner s claim of open and continuous use, I find the evidence establishes the following: (a) (b) (c) (d) (e) (f) according to the reports and testimony of the expert surveyors, there is no physical evidence going back to William W. Clow s predecessor in title (Hugh McEwen) that block A and block B were ever delineated by a fence or marker as separate pieces of land; on the other hand, there is physical evidence that the southern boundary of parcel (block A and block B together) was fenced as one piece of land by William Clow s predecessor in title and the petitioner (Wallace Elmer Clow) maintained that fencing during his occupation and use of the land; in 1945, the petitioner s father, William W. Clow, by permission of the deed of 1945 (by whatever legal value it may have had) entered upon and took possession of the land identified as parcel which included the portion of the land herein referred to as block B; William W. Clow and his family, including his son the petitioner, occupied and used that land openly and continuously, year to year, for such purposes as raising crops, raising farm animals, planting an orchard, and living upon the land; the petitioner, Wallace Elmer Clow, was in open occupation and use of the disputed land when in 1956 his father and mother conveyed title to parcel to him; subsequent to the conveyance from parents to son in 1956, the petitioner continued to live openly and continuously on the land in dispute, and he did, amongst other things, maintained a house and farm buildings on that land (i.e., block B ), and like his father before him, cut

8 Page: 6 wood, and raised farm animals and crops year to year; (g) (h) the petitioner maintained the old fencing that marked the extremities of the entire parcel of land (both blocks A and B ) by adding barb wire, and he built and maintained a road that traversed both portions of land; and he was, like his father before him, assessed year to year as owning a parcel of land that included block B and, year to year, for over forty years paid taxes on that assessment up until the Deed of Correction was registered. [15] The above evidence shows, in my view, that the petitioner s occupation and use of the land continued from, at least, the date his father purported to convey title to him, that is 1956, up until the present day; in brief, for more than 45 years. In addition to the 45 years of occupation and use by Wallace Elmer Clow, the Petitioner s father (William W. Clow) occupied the same land under the same condition for more than 10 years ( ). Thus, the land in dispute has been subject to adverse use for more than 55 years by the immediate family of the Petitioner. However one calculates the period of adverse use, either as 45 or 55 years, the Petitioner has clearly held it longer than the 20 year requirement under the Statute of Limitations Act. Based on the foregoing evidence, I conclude that Wallace Elmer Clow was in actual, constant, open and visible occupation of the land, and has satisfied the three requirements set out in Re: MacEachern (1996), 147 Nfld. & P.E.I.R. 146 to prove title by adverse possession. Evidence of a Shadow [16] The above evidence favours the Court granting the petitioner s application for a certificate of title. The issue now is whether the respondents, in the words of Justice McQuaid in CADC, have brought forth evidence which cast a shadow on the title of the applicant? If the answer to this question is in the affirmative, the second question is whether the petitioner has fully rebutted the prima facie evidence adduced reflecting adversely on his title? [17] The expression cast a shadow is metaphoric, and I take it to mean that the respondents must adduce evidence of actions taken on their part which, however lightly, touched upon the land and interrupted the petitioner s continuous occupation and use of the land, that is, his claim of title. [18] The evidentiary onus on the respondents is slight, that is merely to cast a shadow on the petitioner s title.

9 Page: 7 [19] In their affidavit and in their testimony before the Court, the respondents make numerous references to the petitioner s use of the land but make very few references to their own use of the same land. Nina Clow speaks of buying and planting strawberries on the land with the wife of the petitioner, Bernice Clow. The respondents also mentioned using the trail, as have others in the community, that was built and maintained by the petitioner. Neither of these two uses, in my view, cast a shadow on the petitioners title to the land. [20] The respondents also state they have contacted various surveyors and lawyers over the years to see what could be done about Mr. Elmer Clow. However, after alluding to these general and unspecified contacts, there is no specific indication of the respondents actually doing anything to interrupt the petitioner s use of the land. [21] The respondents also state they were appalled to hear the petitioner had sold a piece of the land in dispute, but I note they did not try to have this deed set aside. [22] It is also the respondents evidence that in about 1981 or 1982 a Mr. Wayne Birt attempted to purchase a piece of property from the petitioner. The respondents indicate they frustrated Mr. Birt s attempt to buy the lot in question, because the surveyor would not sign the survey plan unless they signed off on the deed. While this incident comes close to casting a shadow on the land, I am not convinced of the merits of the argument for a number of reasons. First, the respondents actions bear more on frustrating Mr. Birt s efforts to take possession of a piece of the land than on the petitioner s continuous occupation and use of the land. Second, the respondents actions were negative; that is, they refused to sign off on a survey or a deed. In this regard, the surveyor s attempt to get them to endorse the survey merely reflects what is now acknowledged; namely, that there is ambiguity in the description of the land conveyed by the paper titles. While frustrating Mr. Birt s efforts to enter upon the land, the respondents did not take any positive action to thwart the petitioner s actual continued use and occupation of the land. Finally, at the time of this incident, 1981 or 1982, the petitioner had been in open occupation of the property in question for approximately 25 to 26 years. [23] Again, the respondents provided evidence that in 1982 the petitioner was going on their property and cutting wood. They retained a lawyer who wrote a letter to the petitioner insisting that he stop, and stating that if he did not stop, the respondents would obtain a court order forcing him to stop. While this is the strongest evidence tendered of the respondents interrupting the petitioner s use of the land, there are two problems with it. First, there is no evidence adduced that the petitioner heeded this instruction or that the respondents followed it up with a court order or any other legal action pertaining to their alleged claim of title. Thus, the respondents action fails to cast a shadow on the petitioner s claim of title. The second problem is that, similar

10 Page: 8 to the incident with Mr. Birt, whatever the merits of the respondents action at that point in time might have been the petitioner had already been in open and continuous occupation and use of the land in question for more than 25 years. In summary, while verbally asserting a claim to ownership, there is no evidence they acted on that assertion in a manner that caused the petitioner to cease his occupation and use of the land to the slightest degree. The Expert Evidence [24] The petitioner retained David Morris of Morris Land & Engineering Surveys Inc. to establish the boundaries of his property. At the time of conducting his survey, Mr. Morris was aware there was a boundary dispute between the petitioner and the respondents. [25] Prior to carrying out the field survey, Mr. Morris conducted property research at the Registry of Deeds, Provincial Archives and other surveyor offices for the purpose of facilitating the reconstruction of boundaries in an attempt to locate evidence on the ground. Mr. Morris also spoke to various property owners in the area and immediately adjoining the disputed property. Following the research, Mr. Morris personally carried out a full survey to locate any evidence of occupation including fencing, cultivation and construction of structures to help in the re-construction of the property boundaries. As a result of his research and field work, Mr. Morris prepared a survey plan which clearly shows the petitioner in possession of both blocks A and B of parcel [26] During his testimony, Mr. Morris was asked to provide his interpretation of various aerial photographs going back to He was able to point to evidence of use such as cleared fields, buildings, wood cutting and general evidence of the land being worked. Mr. Morris supported his verbal testimony with a report of survey which was filed with the Court as Exhibit P-3. [27] The respondents had retained surveyor Mr. James Banks. It was noted, however, that Mr. Banks did not perform any of the ground field work himself but relied upon calculation and measurements completed by a crew under his remote direction who, at material times, were directed by Mr. Ashley Clow, one of the respondents, in the field. The most telling aspect of Mr. Banks testimony was his admission under cross-examination that he was unable to determine any travel, use or encroachment on the disputed lands by the respondents. He admitted that what evidence there was of occupation and use likely came from the petitioner and his witnesses. [28] As noted by Justice C. R. McQuaid in CADC, where prima facie evidence is adduced reflecting adversely on the petitioner s claim to title, then the onus is on the

11 Page: 9 petitioner to rebut this evidence. In this instance, the two incidents in the early 80's come closest to evidence adverse to the petitioner s claim. However, as I previously indicated, this evidence does not amount, in my opinion, to a shadow cast on the petitioner s occupation and use of the land in dispute. While these two incidents could be viewed as steps toward an assertion of rights, in both incidents the respondents did not, metaphorically speaking, step upon the land to stop the petitioner from using or occupying it. In summary, even if the respondents are given the benefit of the doubt, that is, if these incidents were deemed shadows, the fact remains the petitioner had already been in open and continuous occupation of the land in dispute for more than 25 years at that point. [29] In conclusion, I find the petitioner has been in open and continuous use and occupation of the property in question for more than 20 years as required by the Statute of Limitations, and the respondents have not adduced prima facie evidence that they have, in the slightest degree, interrupted or impeded the petitioner s occupation and use of the disputed land during that statutory period of time. [30] In the result, I grant the petition of Wallace Elmer Clow and declare him to be the absolute owner in fee simple of the parcel of land more particularly described in Schedule A attached to the petition and being formally identified as provincial property number [31] The petitioner shall have his costs against the respondents to be assessed on a party and party basis. April 30, 2003 C.J.

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