SUPREME COURT OF NOVA SCOTIA Citation: McInnis v. Stone, 2016 NSSC 69. Daniel J. Stone and Francine Michelle Stone LIBRARY HEADING

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1 SUPREME COURT OF NOVA SCOTIA Citation: McInnis v. Stone, 2016 NSSC 69 Date: Docket: Halifax No Registry: Halifax Between: Tom J. McInnis v. Daniel J. Stone and Francine Michelle Stone LIBRARY HEADING Applicant Respondent Judge: Heard: Final Written Submissions: Subject: Summary: Issues: The Honourable Justice Arthur W.D. Pickup October 26, 27, & 28, 2015, in Halifax, Nova Scotia Respondent s post hearing submissions December 8, 2015 Applicant s response submissions January 8, 2016 Property; adverse possession; colour of title; lost modern grant; trespass The applicant s property, purchased in 2003 and migrated to the land registry in 2004, included a piece of land to which the respondents later claimed possessory title on various grounds. Among other things, the respondents physically altered parts of the disputed property (such as by cutting down trees) and physically excluded the applicant from it. They went so far as to call the police when the applicant entered the disputed area. The applicant sought damages for trespass and negligence, as well an injunction. (1) Did the respondents have title by colour of right?

2 (2) Did the respondents have title by adverse possession? (3) Did the respondents have an easement by lost modern grant? (4) Did the applicant establish a claim for trespass and/or negligence? (5) Was the applicant entitled to an injunction? Result: (1) The respondents colour of right claim was based on the deeds of predecessors in title. Their own deed did not include any of the disputed area. The respondents could not assert colour of title where their own deed did not include any of the disputed land. Moreover, the respondents had not in fact established that the disputed lands were included in their predecessors deeds. Further, the actions of the respondents and their predecessors in respect of the lands did not support the view that they had the requisite bona fide belief. (2) The evidence did not establish the continuous, open and notorious, and exclusive possession by the respondents required to found adverse possession. (3) The respondents had not established the existence of an easement by lost modern grant. (4) Trespass was established. There was overwhelming evidence of interference by the respondents with the applicant s possession of the disputed property. The applicant was entitled to general damages as well as punitive damages, in view of the respondents calculated and malicious attempt at a land grab. A claim for special damages was not made out, however. (5) The court did not issue and injunction, but left that as a possibility if necessary in the future. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 SUPREME COURT OF NOVA SCOTIA Citation: McInnis v. Stone, 2016 NSSC 69 Date: Docket: Halifax No Registry: Halifax Between: Thomas J. McInnis v. Daniel Joseph Stone and Francine Michelle Stone Applicant Respondents Judge: Heard: Final Written Submissions: Counsel: The Honourable Justice Arthur W.D. Pickup October 26, 27, & 28, 2015, in Halifax, Nova Scotia Respondent s post hearing submissions December 8, 2015 Applicant s response submissions January 8, 2016 Tipper McEwan and Daniel MacKenzie, for the Applicant Robert Pineo and Leslie Sawers, for the Respondents

4 Page 2 By the Court: This case involves a dispute over land. The applicant, Thomas J. McInnis says the respondents are attempting a land grab. The respondents, Daniel Joseph Stone and Francine Michele Stone, say they and their predecessors in title have acquired a portion of the McInnis lands by adverse possession, or, in the alternative, have acquired an easement by prescription or lost modern grant. The applicant was born and raised in Sheet Harbour. He was a lawyer and later served in the Nova Scotia Legislature. He is now a Senator. When he retired he moved back to Sheet Harbour onto the homestead property that he inherited from his father. He purchased an additional piece of land from Kimberly-Clark in This lot bordered the property of Gary Russell on three sides. Mr. Russell was one of the predecessors in title to the respondents. The applicant s property was migrated and registered with the Land Registry office on May 13, There is no dispute as to the paper title to the applicant s property, including that of the included disputed lands. The respondent Daniel Stone lived in Sheet Harbour in the 1970 s and was familiar with what is now the Stone property. He recalls playing in the vicinity and swimming in the water off the Stone property, and as well fishing off a dock that was there at the time. In November or December 2010 the respondents saw an advertisement for the sale of what is now the Stone property. They purchased it from Gary Russell on February 25, In 2011 the respondents attempted to purchase from the applicant a piece of land between their house and the East River ( the disputed property ). The applicant refused to sell. The respondents alleged that they in fact owned the property but were attempting to avoid a dispute by offering to purchase it. Shortly thereafter the respondents began to claim ownership of the disputed land. They felled trees, excavated portions of the disputed property and began to actively claim the land, including calling the RCMP if they saw the applicant on the land. The applicant says the respondents have directly interfered with his possession of the disputed land and, therefore, are liable in damages.

5 The respondents say they and their predecessors have established a possessory claim to the disputed lands, or, in the alternative, have acquired an easement by the doctrine of lost modern grant. The disputed land Page 3 The disputed property is a portion of the lands the applicant acquired from Kimberly-Clark in It is depicted on a property online map contained in Exhibit A to the affidavit of Thomas J. McInnis. The disputed lands lie between the western boundary of the respondents property and the river. The disputed land is also shown on the plan of survey prepared by Gary S. Parker, NSLS, which is found at Tab B of the affidavit of Mr. McInnis. Viewing At the request of the parties I travelled to Sheet Harbour and took a view of the property on October 27, Both parties and their counsel were present. The evidence before the court Affidavits were filed by both parties. The evidence for the applicant is set out in the following affidavits: Affidavit of Thomas J. McInnis filed May 16, Rebuttal affidavit of Thomas J. McInnis filed August 4, Affidavit of Stephen Rutledge filed June 15, Affidavit of Craig R. Berryman filed October 16, Affidavit of Martina Neuer filed April 20, Affidavit of Robert MacDonald filed October 3, Affidavit of Paul Handley filed October 3, Affidavit of Derek Horne filed October 3, Affidavit of Garry Parker filed October 3, Affidavit of Peter debellefeuille filed October 3, Affidavit of Thomas McInnis filed October 3, 2014.

6 Page 4 The applicant Thomas J. McInnis, Gary Stewart Parker, Stephen Rutledge and Martina Neuer were cross-examined by the respondents counsel. The evidence for the respondents are set out in the following affidavits: Affidavit of Thelma Crowell filed November 28, Affidavit of Walter Vandekieft filed September 2, Affidavit of Daniel Joseph Stone filed November 28, Affidavit of Francine Michele Stone filed November 28, Affidavit of Edward J. Webber filed December 19, Affidavit of WalterVandekieft filed December 23, Affidavit of Ryan P. Brennan filed December 19, Affidavit of John Robert Vandekieft filed December 19, Daniel Joseph Stone and Francine Stone were cross-examined by the applicant s counsel. Gary Russell Jr. was subpoenaed to give evidence by counsel for the respondents, as Mr. Russell refused to provide an affidavit. He was crossexamined on his testimony. Issues: The issues are as follows: 1. Do the respondents and their predecessors in title have color of title to the disputed property? 2. Have the respondents established a claim for adverse possession? 3. In the alternative, have the respondents met the requirements for an easement by the doctrine of lost modern grant? 4. Has the applicant established his claim for trespass and negligence? 5. If so, is the applicant entitled to special damages, general damages and/or punitive damages?

7 Page 5 6. Is the applicant entitled to an injunction? Issue #1 Do the respondents and their predecessors in title have color of title to the disputed property? The respondents submit that they have color of title over the strip of disputed property to east of the Capital T Trail, and that their predecessors in title had colour of title before them. The applicant, in response, argues the respondents have not led evidence to prove that the deeds held by their predecessors in title included the disputed land. He says Mr. Russell did not hold a bona fide belief that he owned the disputed land. For these reasons the applicant says the respondents cannot establish a claim for the disputed land using the doctrine of constructive possession under colour of right. Colour of right is established where the description in a deed includes lands claimed by adverse possession and where the holder of a defective title holds a bona fide belief that they own the land. In McCormick v. McDonald, 2009 NSCA 12, the Court of Appeal discussed colour of right with respect to constructive possession: 92 An essential prerequisite to a claim of constructive possession is that the claimant be able to rely on colour of right, that is by having some paper title, albeit a defective paper title. It is not the deed or other instrument which gives title, but rather the claimants' bona fide belief of holding title coupled with the adverse possession under it for the requisite period of time, with colour of right. The paper title, though defective, may then define the boundary of the legally effective title by adverse possession. [Emphasis added] And further at paras. 94 and 95: 94 Since paper title is an essential element of constructive possession - only a party with paper title to land can claim constructive possession; the constructive possession is limited to the property described in the deed. Wood v. LeBlanc (1904), 34 S.C.R. 627 (SCC) at para Here too the respondents' claim would fail because they did not have a paper title. 95 Neither would the respondents be entitled to claim constructive possession of the disputed parcel merely because they believed that their deed encompassed the parcel. The extent of a deed is not altered by the subjective belief of a party:

8 Page 6 see Knock, supra. In Duggan v. Nova Scotia (Attorney General) (2004), 222 N.S.R. (2d) 229 (S.C.), the plaintiffs' deed showed a depth of 775 feet, but they claimed they owned land beyond that. Moir, J. found that their claim of constructive possession was limited to the distance shown on their deed. See as well R.B. Ferguson Construction Ltd. v. Nova Scotia (Attorney General) (1989), 91 N.S.R. (2d) 226 (C.A.). [Emphasis added] In Podgorski v. Cook, 2013 NSCA 47, the Court of Appeal followed McCormick, supra, and set out the relevant principles with respect to adverse possession, colour of right and constructive possession: 49 It will be useful to remind ourselves of the relevant principles before turning to their application to the facts: (4) A possessor may have constructive possession of more than what he occupies if he has colour of title - i.e., a deed - whether or not the deed is valid, (MacDonald v. MacCormick, 2009 NSCA 12, para. 93). Otherwise, he can only claim what he actually occupies; (5) To claim constructive possession, the adverse possessor must have a bona fide belief that he has title, (MacDonald v. MacCormick, para. 94); (6) But there can be no constructive possession based on the possessor's belief where his deed does not include the land over which possession is claimed, From these authorities it is important to highlight that to claim constructive possession of more than what one occupies, a possessor must have a bona fide belief he has title. Equally important is that to claim constructive possession the possessor s deed must include the land over which the possession is claimed. The requirement for inclusion in the possessor s deed of the claimed lands is discussed in Cook, supra: 55 There is a difference between an adverse possessor who enters under colour of title from someone who has no such claim. Possession under colour of title extends to all property in one's deed. Possession without colour of title only extends to what is actually occupied, (see cases at para. 49(6); especially Wood v. LeBlanc, per Taschereau, C.J.C.). As Mr. Cook's deed did not include the disputed lands, he could only claim what he or his predecessors had continuously, adversely occupied over a 20-year period. 56 Although Mr. Cook testified that he believed that his deed included the disputed lands, there was much evidence that contradicted this belief. His own survey does not show this. The dimensions in his deed are not extensive enough

9 to include both his house and the disputed lands. He did not object to Mr. Rose's survey markers - which limit his boundary to the line established by Mr. Berrigan - because he said he had not surveyed his land. That survey would be unnecessary if he thought his deed included the disputed lands. Moreover, the judge accepted Mr. Rose's evidence that Mr. Cook sought and obtained permission to use part of the disputed lands. None of this supports a "colour of title" claim to possession by Mr. Cook. The following are the issues to be considered: Page 7 1. Can the respondents claim a colour of right when their deed registered under the LRA does not include any of the disputed lands? 2. Can the respondents claim colour of right based on deeds of their predecessors in title which purportedly contained the disputed lands? 3. In either event, do the respondents have their requisite bona fide belief? 1. Can the respondents claim a colour of right when their deed registered under the Land Registration Act does not include any of the disputed lands? The respondents do not dispute that the deed they received from the Russells and which was registered under the LRA did not include any of the disputed lands. The lands of the respondents are bounded on all sides by the lands of the applicant. It is clear from the case law that a prerequisite to claim colour of right is that the lands being claimed by possession be included in the deed they are claimed under. Here the disputed lands were clearly excluded from the deed of the respondents and, therefore, they cannot succeed on a claim based on their deeded title. The question then becomes whether the respondents can claim colour of title based on deeds of their predecessors in title. 2. Can the respondents claim colour of right based on deeds of their predecessors in title which purportedly contained the disputed lands? The first question to be determined is whether the three deeds that purportedly comprised the land purchased by the Russells contained the disputed lands.

10 Page 8 The respondents rely on Mr. Russell s trial evidence that he and his family were told that these three deeds contained all of the lands from the East River up to and including the Stone lands. Further, he testified that he did find some of the landmarks listed within the three deeds on the disputed property. With respect, I am not persuaded that Mr. Russell s evidence is sufficient to prove that these deeds contain the disputed lands. I note that there was no survey evidence provided to prove the inclusion of a portion of the disputed lands within these three deeds. Secondly, none of these deeds described the Stone property as extending to the East River. Schedule A to the deed of Quillinan to Vandekieft did not describe the property as extending to the water, nor does the deed from Mr. Vandekieft to Mr. Russell Sr., or the deed from Mr. Russell to his son. As to Mr. Russell s evidence that he located some landmarks on the disputed property, specifically a rock marked x, this is of significance to the respondents because if they can prove that this landmark was within the disputed lands and that this portion of the lands was occupied, then they could claim the whole of the property by way of colour of title. Mrs. Stone made reference to this rock to Mr. Parker, who was retracing the Stone lines at the time. He testified that this rock could not be reasonably relied on for surveying purposes. Moreover, it is questionable whether Mr. Russell is qualified to locate the rock with an x on Exhibit 3. This would, in my opinion require expert survey opinion evidence. Therefore, Mr. Russell s testimony is of little weight in this regard. I am not satisfied that the respondents have met their burden of establishing that the deeds of their predecessors include the disputed lands. Therefore they cannot establish their claim for adverse possession through their predecessors in title. 3. In either event, do the respondents or the predecessors in title have the requisite bona fide belief? It is difficult to accept that the respondents had the requisite bona fide belief that their deed contained the disputed lands, for several reasons. For example: i. when the respondents viewed the property in December 2010, they were told by the real estate agent that the property did not contain water frontage or access to the waterfront;

11 Page 9 ii. the respondents were provided by the agent with a property online map and other listing documents, all which made clear that there was no water frontage or water frontage access; and iii. in the spring of 2011 the respondents offered to buy the land from the applicant. As to Mr. Russell, the respondents predecessor in title, I am not satisfied that the evidence has established a bona fide belief that he and his wife owned the disputed lands. I note, for example, the following points: i. Mr. Russell did not assert a claim of ownership to the disputed land in 2003 when the applicant bought the McInnis property. In fact, Mr. Russell contacted the forestry company with a request to buy the property himself; ii. when he listed the Stone property for sale, Mr. Russell did not claim any waterfront land or access was included; and iii. the description of the lot conveyed by the Russells to the respondents described the lot as being bounded by the McInnis property on all sides. In my view, neither the respondents nor Mr. Russell have proven the requisite bona fide belief. For all these reasons, the respondents cannot establish a claim for constructive possession personally or through their predecessors in title. A final thought: the basis for a claim of colour of right is the belief that you have a claim to property described in your deed (albeit in error) and occupy those lands. Here no such situation exists. The respondents land as registered under the LRA is clearly bordered by the McInnis lands on all sides. To allow a claim based on deeds of predecessors in title seems to me to be outside the doctrine of colour of right even if the respondents had proved a colour of right in their predecessors in title. The respondents having failed to prove constructive possession, the question is whether they have established a claim for adverse possession over all of the disputed lands. Issue #2 Have the respondents established a claim for adverse possession?

12 Page 10 The elements of adverse possession are explained by Charles W. MacIntosh, Q.C. in his text Nova Scotia Real Property Practice Manual (Markham: Lexis Nexis) at p. 7 21: Many years ago the requirements for a possessory title were stated to be nec lam, nec vie, nec precaria (without stealth, without violence, without permission). The present statement of the requirements is that possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail. However, where there is a mutual mistake and both parties are under a misapprehension as to the location of the boundary between their properties, the requirement for adversity is not applicable. [Emphasis added]. In Pettipas v. Hunter Noel Holdings Ltd., 2015 NSSC 313, the court confirmed these principles set out by MacIntosh, at para. 13 A claimant must prove that he had actual possession for the necessary period; and that his possession intended to, and did, exclude the true owner from possession ( Ontario Inc. v. Lefebvre (2008), 69 R.P.R. (4th) 268, [2008] O.J. No at para. 21 [Lefebvre]). A claimant must further show that his acts of possession were "open, notorious, peaceful, adverse, exclusive, actual and continuous". Under the Limitation of Actions Act, R.S.N.S. 1989, c. 258 (now the Real Property Limitations Act), a claim for adverse possession will be made out when these elements are proved throughout a consecutive 20 year time period. It is also clear from the case law that there must be persuasive evidence of adverse possession. The Nova Scotia Court of Appeal said in Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39, at para. 20: 20 From this review of the authorities it is clear that the claimants of possessory title have the burden of proving with very persuasive evidence that they had possession of the land in question for a full 20 years and that their possession was open, notorious, exclusive and continuous. They must also prove that their possession was inconsistent with the true owner's possession and that their occupation ousted the owner from its normal use of the land. As well, possession by a trespasser of part is not possession of the whole. Every time the owner, or its employees or agents, stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession. The burden is on the respondents to prove all the requirements for establishing a claim of adverse possession.

13 In Board of Trustees of Commons Land. v. Tanner, 2005 NSSC 245, the Court commented on burden of proof at para. 26: 26 The burden is on the person seeking to extinguish the title of the legal owner to prove acts of possession that are capable of extinguishing title considering the nature of the lands and other circumstances. This is the fifth principle enumerated by Hallett J., in his outline of the basic principles of adverse possession in Lynch v. Lynch (1985), 71 N.S.R. (2d) 69. Evidence of adverse possession by the respondents Page 11 John Robert Vandekieft stated he was the son of Robert and Martha Vandekieft who purchased the Stone property between 1980 and He said the house on the property had not been lived in for a while and required work and renovations. Family members assisted his parents in carrying out this work. Thelma Crowell is an aunt of the respondent, Daniel Stone, and a neighbour. She lived in close proximity to the area known as Ruth Falls for 35 years. Ruth Falls is apparently close to the subject lands. She knew the previous owner John Quillinan and said she knew him because her husband s office (Fisheries and Oceans) was near to his property. Mr. Quillinan was a predecessor in title to the Stones. She stated that she often observed the Quillinans using the property all the way to the river. She said Mr. Quillinan had a dock jutting from the riverside portion of the property out into the river. Finally, she said she had seen children from the area and their friends fishing from Mr. Quillinan s dock. An affidavit was provided by the respondent Daniel Joseph Stone. He stated he purchased the Stone property from Gary Russell Jr. on February 25, The following paragraphs of his affidavit are relevant to his claim of adverse possession: 17. After closing, Francine and I began attending the Stone Property on weekends to do work on the house and property. 21. Outside, on the Stone Property, we cleaned up the property, including by cutting down dead trees and cutting underbrush and other growth including on the Disputed Property. We have done this work since moving into the Stone Property and it is ongoing. 22. I considered the dead trees to be safety and fire hazards.

14 23. In or about May of 2011, I telephoned Mr. McInnis to advise him that I would be putting my boat in the river, as I knew that Mr. McInnis had had some disagreements with the previous owners of the Stone Property. Mr. McInnis purported to forbid me from doing so. 30. When I put my boat in the river in 2011, we used a slipway in Sheet Harbour. I tied the boat to a large rock in the water just off the Disputed Property. 31. On July 24 th, 2011, I received a letter from Mr. McInnis which purported to order me to stay off the Disputed Property. 32. On July 26, 2011, I wrote to Mr. McInnis, again stating that the waterway in front of the disputed property was public as I intended to moor by [sic] boat there. I asked Mr. McInnis to ensure that his No Trespassing signs were not posted on the Stone Property. 33. We access our boat via an old slipway off the disputed property, or we wade out to the boat, depending on the tide at the time. 34. Every week when we would come back to the Stone Property, there would be new No Trespassing signs posted, which would get closer and closer to our house every week. 35. Some of the trees that I cut down on the Stone Property had No Trespassing signs on them 49. Regarding paragraph 158 of Mr. McInnis s Affidavit, on or about the beginning of October, 2011, I noticed a small piece of the Disputed Property had been mowed. 50. Around this time, we also saw a gentleman known locally as Buzzy whose actual name I do not know, cutting brush and windfalls on the Disputed Property. 51. This is the only time any of the Disputed Property was mowed or kept up in any way by anybody but us. 52. We consider these incursions to be a trespass on our property. 53. Otherwise, the trail is not maintained at all, and not used by Mr. McInnis and his wife. 54. There was no sign when we purchased the Stone Property that this trail was or had been maintained in any way. 55. The trail was mostly used by my neighbour, Anthony Gills and his family, with our permission, to access the water. Page 12

15 67. I consider that the land between my house and the East River is owned by Francine and me. 73. In 2012 I continued to clear my land of trees that we wanted removed, as well as underbrush. 74. I [sic] to dead trees, I have removed some softwood trees that blocked the view from my house to the East River. These trees were dead or fallen. 75. I do not remove living hardwood trees. 76. We regularly use a small fire pit on the Disputed Property for evening campfires. 77. In or about the spring of 2013, I saw Mr. McInnis and Brenda McInnis walking up from the East River. 78 I said, Is there something I can do for you? and Mr. McInnis replied, You re going to fucking find out what you can do for me. 79. In or about the fall of 2013, I was in my house and saw Mr. McInnis on my property taking photographs of my fire pit. 88. I consider the land between our house and the East River to be our property. I do not hesitate to use it. Mrs. Stone also filed an affidavit, which for the most part mirrored Mr. Stone s evidence. Page 13 Gary Russell Jr. gave viva voce evidence. The Russells owned the property from May 1984 to February 25, Mr. Russell testified that his father purchased the property in At that time Mr. Russell was approximately 19 years old. He testified that he had visited the property every couple of weeks. His father used the property as a cottage, but at one point his parents lived there for about two years but split their time during that two years between there and their Ottawa residence. His direct testimony was that his parents spent half the year roughly between there and Ottawa. Mr. Russell testified that his parents used the entire piece of property, in particular, the lands to the east and west of the Stone property. The property in dispute is to the west. From 1984 onwards, he said, the property was used for recreational purposes: campfires, fishing, swimming, exploring and as a base for hunting. He qualified that he did not hunt on the property but travelled to hunt by car or all-terrain vehicle from there to other areas such as Loch Harbor Mines. He

16 Page 14 testified that they had campfires on the east side of the house but not on the west side, which is the lands under dispute. He testified there was a little dock on the waterfront and a little boat ramp. A photograph was entered into evidence as Exhibit 4. Mr. Russell identified the individual on the photograph as his father standing on a dock that he had built there for recreational purposes. He described the dock as being approximately 20 feet by 12 or 14 feet wide, set on some rocks that were there from a previous dock. He testified that his family did not use the dock to launch a boat but did use it for swimming. He testified that he believed the dock was constructed in 1992 because his mother took the picture that year. Mr. Russell sold the property to the Stones in He was asked on direct examination whether he used the property throughout the entire period of ownership by his father and then by himself. His response was that he used it more when he had an apartment in the city, but when he purchased his own house he went down there roughly every week or two to cut the grass and maintain the property. In direct examination he testified: Mr. Pineo: So just as a general timeframe reference, you ve testified after looking at the deed that is was around 1984 in 1984 that your parents purchased the property. When did you sell the property to the Stones? Mr. Russell: It would have been about four years ago I believe roughly. Mr. Pineo: So 2011? Mr. Russell: Yes. Mr. Pineo: And did your use of the property continue throughout that entire period? Mr. Russell: I visited the property twice I think since I sold it to them yes. Mr. Pineo: I meant that prior to you selling the property did you continue to use it throughout that entire period? Mr. Russell: Oh yeah but not as frequently. We used it more when I had an apartment in the city. We used it frequently and then as I had my own house I got down there roughly every week or two to cut the grass and maintain it the best I could. Hook up the water in the spring, shut her down in the fall and stuff, but it would be roughly every two weeks we used the property - at a minimum. It would depend if I was sailing or not. Things like that. And then when I wasn t there I gave it to my buddy sometimes he used it.

17 Page 15 It is noteworthy that he indicated his occupation of the property as stated was subject to if I was sailing or not, suggesting an absence of use of the property during that time. This issue will be elaborated on later in the decision. It is also of note that no evidence was led by the respondents as to what, if any, occupation there was of the property when he was sailing. He referred to giving it to my buddy, but he qualified by saying he sometimes he used it. No further evidence was provided. Mr. Russell testified that during his parents and his own ownership he did not notice any use of the disputed property by lumber companies, nor any official company representative on the property. There was no evidence as to the date he purchased his property in the city. Mr. Russell recalled talking to Mr. McInnis about the property and testified that they both used it and never had any issues. Later in his testimony he described further occupation. He indicated that he planted pine trees to provide shelter around his campfire. He planted maple trees, rose bushes and kept the trails clean. He built a set of stairs down to the dock, but basically kept the waterfront the way it was, with the exception of trying to keep a path there for the use of all. Mr. Russell confirmed that his father moved to Ottawa around Although he claimed to have ownership of the property between the Stone property and the waterfront, Mr. Russell admitted on cross-examination that when he put an ad on Kijiji to sell the property, he used a property online map which did not include the disputed property. He also testified that he contacted Kimberly-Clark when he heard that Mr. McInnis was interested in buying the disputed land from them and asked them about obtaining water access. Mr. Russell indicated that he retired from the Navy approximately four years ago. Prior to that he was on duty aboard a Navy ship from time-to-time and would be deployed for up to a year every three or four years. No dates were given for these deployments. Evidence of adverse possession and ownership of the disputed lands by the applicant The applicant filed an extensive affidavit on October 3, He is the owner of what he refers to as the McInnis lands which were purchased from Kimberly-Clark in September The disputed lands are a portion of the

18 Page 16 lands purchased from Kimberly-Clark, consisting of the lands fronting on the East River to the west of the Stone property. The applicant grew up in this area. He was born in 1945 and lived in the same house until he left for university. He practiced law for a time and was the MLA for Eastern Shore between 1978 and Sheet Harbour was a part of his riding. During these years, he said he often travelled to Sheet Harbour to meet with constituents and visit his parents. The applicant stated that even before he purchased the property he would use the McInnis lands, including the now disputed lands. The McInnis lands were often referred to as company lands. In his affidavit he stated: 38. In the late 1940 s, through to the 1950s and 1960s I and the other members of my nuclear family would pick wild berries in the area of Campbell s Brook which is to the South and East of the Stone Property. We also crossed what is now the McInnis Property to gain access to the river by using the Trail. We would go down to the river to swim, have wiener roasts, and sit by the water. We did not fish there. However, I always understood that the land was Company land and that it was used for forestry purposes by the various companies that owned it from time to time. 39. As kids we played all over the East River area. We played cops and robbers, cowboys and Indians, and other games all throughout the forested property in the area; both on and off what is now the McInnis Lands. We roamed all over the lands in the area. 40. As a young boy I remember the Company harvested the forest on the land. The Company truck driven by Bill Coady got stuck down across from my parents home on this somewhat crude woods road. The Company and their employees were the local fire department when I was a young boy. 41. The Company had one small truck with a tank on it which carried little water. The Company was the fire department in those days. Following a fire in our area they constructed on the Company lands (what is now the McInnis Property) on Campbell s Brook South of the Quillinan [sic], now Stone property, a huge reservoir of water held in place by a dam constructed with their dozer driven by their employee Laurie Rutledge. This was likely in I was interested in watching the Company s equipment work on the land, and build the reservoir. These events happened across the street from my parent s homestead and provided a source of entertainment.

19 43. In the 1970 s, mainly on the weekends I would visit with my parents and my Aunt Annie and Roy Bezanson and Aunt Eliza and Joe Malay who resided on Ruth Falls Road. There was a path through the Company lands that cut diagonally from my parents property to the Quillinan Property, it is labelled on Exhibit A as Path to Grandmother Bezanson. 44. During the summer months it was always enjoyable to go down to what we always referred to as the Boat House, on what is now the Disputed Lands, and just relax. 45. In the spring of the year we burnt some of the Company lands to promote the growth of blueberries on the eastern edge of the Company Lands around Campbell s Brook. My mother and I would go picking them for her famous blueberry grunt. 46. From the time I was a child, up to when I bought the land, I, my extended family, and my wife Brenda, and our children would use what is now the McInnis Property, and in particular what is now the Disputed Lands as described above. 51. From , a Robert Vandekieft owned the Stone Property. Throughout those years I and my family were down and around the area of what is now the Disputed Land. I do not recall every meeting Mr. Vandekieft. 53. When Mr. Russel Sr. owned the Stone Property, there was a small wooden platform by the water. I believe that he put it there. People thought that it was mine. I often saw it when I went down to the water on the Disputed Land I had trees cut on the McInnis Property across from my home at 454 East River Road in , after I bought the property but before I retired. The road was cut ¾ of the way down to the East River along Campbell s Brook across from my home. I hired a woodsman to cut out huge trees that had partially fallen and harvested the trees that were attacked by the spruce beetle infestation. I had huge fires to burn the dead trees and brush I had rocks landed by Hawes Construction in preparation for the Wharf construction. I had entered into an agreement with Transportation and Infrastructure Renewal for a guardrail replacement and culvert approval for the road off Ruth Falls to my wharf I was often on what is now the Disputed Land with my wife Brenda and we never saw a person on the property at any time. Mr. Russell and his Page 17

20 family we saw a couple of times, but never on the McInnis Property. The Russell s grass was rarely mowed, and after the property had been broken into I closed the door to keep the weather out It came to my attention in or about 2005 that Gary Russell was selling his property (now the Stone Property) as he had posted a store bought red and black for sale sign on the tree beside his driveway with a telephone number to call. Over time the telephone number became illegible The grass was seldom cut and there was no indication that the house was being used at all. I briefly considered buying it at that time In 2010 the Power Corporation had cut some tops off the trees, they were maintaining their easement, which runs through the McInnis Property just west of the Stone Property in the area of the Disputed Land. I gathered up and burnt the brush that fall After my discussions in July of 2011 with Mr. Stone, I posted No Trespassing signs by nailing them to trees on the McInnis Property. These trees were located west of the survey pins, marking the boundary between the McInnis Property and the Stone Property described in the above paragraphs. The No Trespassing signs that I posted were almost immediately removed. Some of the trees that had the signs on them were cut to the ground. The dispute escalated between the parties. The applicant stated: 173. When we did go to the property just to go for a walk or sit in our chairs, Mr. Stone called the police and they would come to our home, no matter the time of day. I ve been called down from my bed. We have been literally shut out of the McInnis Property virtually since the Stones moved in to the Stone Property and put their boat in the water in In 2012 Stone virtually took over my property. Additional trees were cut. His boat was back in the water I would not go down to the water on the McInnis Property because I was afraid and felt my anxiety at the thought of him calling the RCMP again. This anxiety was shared by my wife Brenda, with whom I had previously enjoyed the property. Page 18

21 204. All our plans to build a wharf, a road, boat house have been stopped. We ve lost the last four years of boating, or relaxing in our chairs down by the river, or our evening walks in the privacy of our own property. Page 19 In response to the affidavit of Thelma Crowell, the applicant filed a rebuttal affidavit in which he stated: 7. There were no DFO offices very near to what is now the Stone Property. 8. Johnny Quillinan did not have a dock on the East River in the late 1970s. At that time there were some remnants of an old house (the McKenzie House ) that had been built on the Riverside. These remnants were not on what is now the Disputed Property, they were further north along the river. In response to the respondents assertion in their affidavits that he was not seen on the disputed property, the applicant stated: 19. In response to the various comments made to the effect that I have not been seen on the Disputed Land by the Stones, I say that I have not been on the land much since 2011 as the Stones have effectively taken it over. At times when I have gone on the Disputed Land, Mr. Stone has called the RCMP. Stephen Rutledge filed an affidavit June 15, He retired from Kimberly-Clark in 2009 as the Vice-President of Woodlands. Prior to that he was Timberland s manager for the company. He stated that he was familiar with the McInnis lands (including the disputed lands) and the present Stone property (PID ). He attached a property online print-out as Schedule A to his affidavit. He noted the location of both these properties, as well as other properties including the Young property. His evidence as to the use of these lands is contained in the following paragraphs of his affidavit: 22. I am aware that this litigation involves a dispute regarding the boundary of, and title to, the waterfront land to the West of the Stone Property (variously referred to as the Disputed Boundary or the Disputed Land ). I have marked the Disputed Land with some shading on Exhibit A. 23. I have also marked the Young Property and the Winnifred (or Winnie) McInnis Property on Exhibit A. 24. The Company used to have a sluice on the McInnis Property to place logs in the water. I have marked the approximate location of the sluice with a line and labelled it Sluice on Exhibit A. The Sluice was used up until the 1960s.

22 25. I understand the Company owned all the water access on the McInnis Property as the property was used to put logs into the East River. 26. I have no knowledge of anyone ever using the Disputed Land prior to Tom McInnis purchase of the McInnis Property, other than Diane Young. 27. Ms. Young asked the Company for permission to let her sheep roam over the McInnis Property and the Disputed land. The Company, through its area manager Sandy MacGregor gave her verbal permission to let her sheep roam the McInnis land, including the Disputed Land. I was advised of this permission by Sandy McGregor, and I do verily believe that it was given as he described. I am not aware of this permission ever being formally documented. 28. I have no knowledge of anyone making a claim for the Disputed Land prior to Tom McInnis purchase. 29. My familiarity with the McInnis Property and the Disputed Land pre-dates my employment with the Company. When I was growing up, I became familiar with the McInnis Property and the Disputed Land because I played baseball and pond hockey nearby. 30. As a kid, I understood that the McInnis Property and the Disputed Land belonged to the Company. 31. My friend and I were aware of the owners of the various properties in the area, largely because of John Quillinan. He owned the Stone Property at that time. 32. I had been told by the Malays, who owned Winnifred McInnis s Property at that time, that trespassing on the Quillinan Property should be avoided. On that basis, I navigated that area with an eye to avoiding the Quillinan Property. Although I would sometimes drive my bike over what is now the McInnis Property, I took care not to cross onto the Quillinan Property. 33. The Quillinan Property did not visibly extend to the East River. It was bordered on its western edge by a rock wall and then woodlands which lay between the Quillinan Property s lawn and the East River. The rock wall and the woodlands beyond were clearly visible to me when I was in the area as a kid. Page 20 Mr. Rutledge conducted a survey in July 1986 as a private job (not on behalf of the company) of the boundaries of the property of Winnifred McInnis, which was across Ruth Falls Road from the Stone property. Mr. Rutledge considered it his duty as an employee of the company to ensure that his survey would not negatively affect the company, as the Winnifred McInnis lot abutted a portion of the McInnis property on the north side of the Ruth Falls Road. As a result, he checked the western boundary of the Stone property. He located a survey pin and

23 Page 21 walked the boundary line between the Stone property and the McInnis property to the west of a rock wall which marked the western boundary of the Stone property. Mr. Rutledge made the following observations in his affidavit: 64. I walked from the North Western Boundary of the Young Property across the road onto the Company s land, what is now the Disputed Land. I wanted to make sure that what I had found on the other side of the road was right. 65. I found a survey pin at the north western corner of the Quillinan Property (now the Stone Property). There was a rock wall along the boundary line. To the east of the rock wall was the Quillinan lawn. To the west of the rock wall, the woods went right to the river. I walked the boundary line, staying on the Company s land to the west of the rock wall in the woods. 66. I have reviewed the survey prepared by Gary Parker, a copy of which is attached hereto as Exhibit C. For illustration purposes I have marked the North Western Boundary of the Young Property as NW Bdy. Of Young Lands. I have also placed xs to represent the rock wall that I saw on the North Western Boundary of the Quillinan Property (now the Stone Property) at the time of my 1986 survey. 67. The rock wall that I observed in 1986 was moss covered and low to the ground. However I could clearly see that it was a rock wall and that it marked the boundary between the Quillinan s lawn and the woods to the West that lay between the Quillinan s lawn and the East River. 68. I would not have walked along this area, or checked what is now the Disputed Boundary if I did not understand it to be Company land and if the Winnifred McInnis Property had not abutted on Company land. 69. There was no sign at the time of anyone trespassing on the Company s land where the McInnis Property is located. 70. If I noticed any squatters or irregularities with the McInnis Property, I would have brought them to the attention of the Company, in accordance with my obligations to the Company. Paul Handley is a certified survey technician and worked with Gary Parker and his company since In 2011 he assisted Mr. Parker to locate the survey markers that Mr. Parker had placed around the Vandekieft property (now Stone) in When he arrived at the property he observed: 26. When I arrived I walked the boundary of the Stone Property to locate the pins. 27. At the north western edge of the Stone Property that location, and the adjoining lands of Tom McInnis, were all rock and bush. The terrain was

24 not level when I walked in that area. I specifically recall that there was a pile of rocks in the area of the north western corner of the Stone Property and the adjoining lands of Tom McInnis. 28. I located a stone wall in the area where the words Stone Wall are written. 29. The wall was about a foot high and about two feet wide. It was a dry stone wall with no mortar in it and the stones had a diameter of between 1 foot and 18 inches. 30. The wall was clearly visible to the naked eye. Although there were trees and bushes in the area, the wall itself was not overgrown and I had no difficulty seeing or finding it as I was walking along the western boundary of the Stone Property. 31. I was able to observe the terrain to the west of the boundary line marked by the two pins on the north and southern end of the western edge of the property. The brush in that area was fairly grown up. I did not see any paths from the western portion of the Stone Property to the East River: it was just bush. Mr. Handley again attended the property in He observed: 32. I assisted Gary Parker with the instrument related work that was done on the property in September of The north western portion of the Stone Property and the adjoining lands of Tom McInnis were different from what I saw in The pile of rocks had been cleared away and the terrain had been levelled. 35. It looked to me like a machine had levelled the area. The rocks that I remember seeing there in 2011 were gone. 36. Part of the stone wall was also gone. While there were remnants of the stone wall, which are shown on the Survey Plan (the Plan ) attached hereto as Exhibit D, the stone wall was definitely shorter in length than it had been in Page 22 Have the respondents met their burden of establishing a claim for adverse possession? As set out in Pettipas, supra, at para. 31, the claimaint s burden is as follows: A claimant must prove that he had actual possession for the necessary period; and that his possession intended to, and did, exclude the true owner from possession ( Ontario Inc. v. Lefebvre (2008), 69 R.P.R. (4th) 268, [2008] O.J. No at para. 21 [Lefebvre]). A claimant must further show that his acts

25 Page 23 Analysis: of possession were "open, notorious, peaceful, adverse, exclusive, actual and continuous". Continuous possession I am not persuaded that the respondents have established an uninterrupted, continuous 20 year period in which they and their predecessors in title possessed the disputed lands. It is also unclear from the respondents evidence when the alleged 20 year limitation period started. In Morrison v. Muise, 2010 NSSC 163, Edwards J. noted: 15 In order to trigger the operation of the Limitation of Actions Act, R.S.N.S. 1989, c. 258, the person claiming adverse possession must establish all of the elements of possession, as well as the commencement date for said acts. MacIntosh, in Nova Scotia Real Property Practice Manual, writes at page 7-7: In order to succeed under the Statute, a party claiming a possessory interest must be able to establish a commencement date for his or her acts of physical possession, so that the limitation period may be computed. [emphasis by Edwards J.] There is a lack of evidence to establish an uninterrupted, continuous 20 year period in which the respondents predecessors in title possessed the disputed property. There is no reliable or persuasive evidence of the required possession prior to the Vandekieft family between 1980 and Mr. McInnis recalled as a young boy in the 1940 s and 1950 s that the lumber company harvested lumber on the McInnis lands. He testified that until sometime in the 1960 s the company used a sluice on the property, then built a reservoir between 1960 and He watched the construction of the reservoir and the machinery entertainment. It must be remembered that Mr. Rutledge in his affidavit at para. 24 noted that the company had a sluice on the McInnis property, for placing logs in the water, which was used up until the 1960 s. John Robert Vandekieft testified that the Stone property had not been lived in for some time when his parents purchased it and it required renovation. This represents a gap in the use and occupation of the Stone property prior to the period.