Re St. Clair Beach Estates Ltd. v. MacDonald et al.
(1975), 5 O.R. (2d) 482
HIGH COURT OF JUSTICE DIVISIONAL COURT
LIEFF, STARK and PENNELL, JJ.
30TH SEPTEMBER 1974
Real property — Adverse possession — Farm land
— Dispossession of true owner — Considerations — Limitations Act, R.S.O. 1970, c. 246, ss. 4, 5(1).
Persons holding title to land have constructive possession of lands described in their deed. Accordingly, where the land in dispute is unenclosed, occasional use of the dispute land by the title holder in a manner consistent with the uses to which the land may be put is sufficient to deprive trespassers of exclusive possession. Moreover, in some cases possession cannot be continuous but may continue to subsist notwithstanding long intervals between acts of user.
Therefore, where farm land has been used at intervals by its owner for the only agricultural purpose possible, i.e., picking cherries from trees, the owner cannot be said to have been dispossessed.
[Leigh v. Jack (1879), 5 Ex. D. 264; Walker et al. v. Russell et al.,  1 O.R. 197, 53 D.L.R. (2d) 509, folld]
Real property — Adverse possession — Animus possidendi
— Whether necessary to establish adverse possession.
In order for a trespasser to establish adverse possession, he must show not only exclusive occupation but also animus possidendi; that is, an intention to exclude the owner as well as others.
[Pflug and Pflug v. Collins,  O.R. 519,  3 D.L.R. 681; affd  O.W.N. 140,  1 D.L.R. 841; A.-G. Can. v. Krause,  O.R. 675, 3 D.L.R. (2d) 400; Littledale v. Liverpool College,  1 Ch. 19; Krause v. Happy,  O.R. 385, 24 D.L.R. (2d) 310, folld; Smaglinski et al. v. Daly et al.,  2 O.R. 275, 10 D.L.R. (3d) 507; affd  3 O.R. 238, 20 D.L.R. (3d) 65, refd to]
APPEAL from an order dismissing an appeal from an order of the Deputy Director of Titles directing the acceptance of the respondent’s application for first registration.
John T. Morin, for appellants, objectors.
G.J. Smith, for respondent, applicant.
The judgment of the Court was delivered by PENNELL, J.:– In this appeal the appellants (objectors), Donald M. MacDonald and Rita L. MacDonald, seek to reverse the order of His Honour Judge Zalev who dismissed an appeal by way of trial de novo pursuant to s. 29(1) of the Land Titles Act, R.S.O. 1970, c. 234, from the order of the Deputy Director of Titles that the application of the respondent (applicant), St. Clair Beach Estates Limited, for first registration under the Land Titles Act of certain land forming part of the Gore Lot, West of Pike Creek, in the Village of St. Clair Beach, in the County of Essex, be accepted.
The question to be determined is whether the appellants have established their claim to a possessory title of the land in question. Possession is a matter of fact depending on all the particular circumstances of the case. Therefore, I start from the facts as to which there is no dispute. Those facts, compendiously stated, are as follows:
The application for first registration by the respondent covered a large parcel of land in the Village of St. Clair Beach formerly known as the Grant Farm.
The Grant Farm was an irregularly shaped parcel some 3,100 ft. in depth lying between the south side of Riverside Dr. and the north side of St. Gregory Rd. The parcel has a width of approximately 900 ft. The Grant Farm excluded certain small residential parcels fronting on Riverside Dr.
The respondent is the absolute owner in fee simple in possession of the Grant Farm subject to certain encumbrances which are not relevant to these proceedings. They purchased from the Grant estate in 1969.
The appellants purchased one of the residential parcels fronting on Riverside Dr. in August, 1961. Their title also comes from the Grant estate via a certain John Gazo and Mary Gazo. The appellants took possession of their parcel in August, 1961, and have occupied it to the present time.
The land in dispute abuts the southerly limit of the parcel of the appellants by the full width of the parcel and extends southerly to the northerly edge of a soybean field running in an irregular east-west line across the Grant Farm.
In August, 1961, the land in dispute was partly grass but generally was overgrown in weeds, trees and rubble. It is a rectangular piece of land 128.79 ft. wide running southerly from the southerly limit of the appellants’ parcel for a distance of 50 ft. The area to the south was ploughed ground.
The house on the appellants’ land was constructed in 1954.
It has a septic tank for sewage and the weeping tiles for this tank are located on the lands in dispute. This weeping tile was installed when the system was built in 1954 and was in place when the appellants purchased the property.
The appellants’ use of the land in dispute was the normal domestic and recreational use which an owner would make of his own backyard. By way of illustration I refer to the following acts:
In the fall of 1961 they removed trees, brush and rubble.
In February, 1962, they bought a dog and set up a dog run of some 50 ft. in the south-west corner of the lands.
In 1962 they seeded the land with grass, fertilized it and cut it.
In the summer of 1962 they put a sand-box between the cherry trees on the land in question, installed swings and planted some flowers.
In 1963 a picnic table was placed on the land.
In the winter of 1964 they put in their first skating rink.
In the spring of 1965 they bought a 22-ft. boat hull and over the next two years they used the area in dispute to construct a boat and trailer for transporting it. Thereafter the boat and trailer were stored on the land in the fall and winter months.
In or about 1965 they erected a bird-house on a steel pole about 15 ft. high and embedded in a concrete foundation three feet deep and one foot across.
In 1967, at the latest, they built a dog-house and placed it on a temporary foundation on the land in question.
In so using the land the appellants never at any time had the permission or consent of the owners of the Grant Farm.
So much for the facts not in dispute. Counsel for the appellants contended that there was no evidence to support other findings of the learned trial Judge. I have carefully examined the evidence and I see no reason for differing from his findings. I adopt them as the basis of the conclusions which I have reached.
The following are the additional facts:
The land in dispute was excluded from the conveyance by John Gazo and Mary Gazo to the appellants and this limitation on the actual extent of the conveyance was known to the appellants.
There were a few cherry trees on the land in dispute and the Grants picked cherries from time to time from these trees.
The predecessors in title to the respondent, Mrs. Annie Grant and her family, were never out of possession of the property in question, but continued to carry on farming operations on so much of the land as was arable having regard to its nature and characteristics. The reason the ploughing was limited was threefold. First, a hydro pole interfered with the equipment. Secondly, the cherry trees proved an obstacle, and thirdly, the sandy soil made it difficult to get on the land with farm equipment.
Substantially speaking, the Grants and the appellants were on a friendly basis. The use of the land in question was in the nature of a neighbourly acquiescence by the Grants.
Two more findings of fact should be particularly set out.
The title of the Grant family to the land in dispute was
acknowledged by the appellants. On two occasions they attempted to purchase the property in question. They made an offer to purchase to Mrs. Annie Grant shortly before her death on May 14, 1966. In 1969 they renewed the offer to her estate at a price of $1,000. On the second occasion, the appellants deposited a certified cheque in that amount with their solicitor for completion of the transaction, but nothing came of it.
In 1969 the respondent purchased the Grant Farm and caused a line of surveyor’s stakes to be put in which clearly demarked the south boundary of the parcel owned by the appellants. At all times the appellants were aware of the presence of these stakes but did not deal with them except in silence until May, 1972. At that time the appellants became concerned about the location of the weeping tile of the septic system and then they tried to acquire part of the land in question from the respondent.
Those are the facts on which the learned trial Judge came to the conclusion that the respondent was entitled to an order for first registration. The contention between the parties depends far more on the inferences which are to be drawn from the facts of the case than in any different view as to the existence of the facts themselves. The short basis of the case made for the appellants was that the learned trial Judge erred on three counts: (a) that he erred in failing to find that the appellants had acquired title to the land in question by adverse possession over the relevant statutory period within the meaning of the Limitations Act, R.S.O. 1970, c. 246; (b) that he erred in finding that the appellants required an animus possidendi with the intention to exclude the title holders from the property to acquire title by adverse possession; and (c) that he erred in finding that the acts of the Grants in picking cherries constituted actual possession on their part or, alternatively, that the evidence would not support a finding that the Grants picked cherries during the relevant period. To understand what the law on the matter is, I must refer to the Limitations Act. Section 4 of that Act provides:
4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom he claims, or if the right did not accrue to any person through whom he claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.
The appellants claim that more than 10 years have elapsed since they first occupied the land. Section 5(1), in so far as relevant, provides:
5(1) Where the person claiming such land … or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession … of the land … and has, while entitled thereto, been dispossessed, or has discontinued such possession … the right to make an entry or distress or bring an action to recover the land or rent shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession … It is plain on its face that the Limitations Act is a defence. The Courts have been generous in elucidating the nature of the burden upon a party seeking to establish title by possession. From a long stream of cases I select, first, that of Pflug and Pflug v. Collins,  O.R. 519,  3 D.L.R. 681; affirmed  O.W.N. 140,  1 D.L.R. 841. In that case, at p. 527 O.R., p. 689 D.L.R., Wells, J. (as he then was), made it clear that to succeed the appellants must show:
Actual possession for the statutory period by themselves and those through whom they claim;
that such possession was with the intention of excluding from possession the owners or persons entitled to possession; and
discontinuance of possession for the statutory period by the owners and all others, if any, entitled to possession.
If they fail in any one of these respects, their claim must be dismissed. As regards the “discontinuance” aspect which I have mentioned, a question arose at trial whether the Grants had discontinued their possession of the land north of the plough- line throughout the relevant period. In reaching a decision one must have regard to the particular circumstances of the case and the nature of the land in question (Leigh v. Jack (1879), 5 Ex. D. 264). The learned trial Judge answered the question in these words:
The Grant Farm (including the disputed land) was agricultural land prior to 1961, and was used solely for agricultural purposes at least to 1966. During that time, the Grants made such use of the disputed land as might reasonably be expected of an owner in possession, namely, ploughing as far north as the hydro pole, trees, and nature of the soil would permit. The area north of the plough-line was used for the only agricultural purpose possible, namely, picking cherries off the trees. The deedholders have constructive possession of the lands described in their deed, and it is not necessary for them (as contrasted with trespassers) to show that they have pedal possession. I find that the Grants were never out of possession prior to 1966.
As to the lands south of the plough-line, actual possession was maintained by ploughing, and as to the lands north of the plough-line, actual possession was maintained by the simple act of picking cherries. There is no dispossession of the owner or discontinuance of possession by the owner within the meaning of s. 5 of the Limitations Act, R.S.O. 1970, c. 246, until there are acts by the claimants which interfere with the purpose to which the owner devoted the land. The smallest act by the owner would be sufficient to show that there was no discontinuance of his possession: per Bramwell, L.J., in Leigh v. Jack (1879), 5 Ex. D. 264 at p. 272. Where the land in dispute is unenclosed then the only safe rule to follow is to confine the trespasser to the actual area from which he has by visible occupation excluded the title holder, but occasional use of the disputed land by the title holder in a manner consistent with the uses to which such land may be put is sufficient to deprive the claimants of exclusive possession: Walker et al. v. Russell et al.,  1 O.R. 197, 53 D.L.R. (2d) 509. One of the questions on this appeal is whether there was evidence on which the learned County Court Judge could so find. The inference drawn by him from the evidence of the picking of cherries was impeached. In my view, the evidence on which the learned County Court Judge acted was sufficient evidence on which he could properly find that the respondent was never out of possession of the land north of the plough-line prior to 1966. In some cases possession cannot in the nature of things be continuous from day to day and possession may continue to subsist notwithstanding that there are sometimes long intervals between the acts of user. The owner of a farm cannot be said to be out of possession of a piece of land merely because he does not perform positive acts of ownership all the time.
The evidence led the learned trial Judge to the conclusion that at best the appellants had joint possession with the Grants. It is a small point but, for myself, I am doubtful that for the purposes of possession under the Limitations Act it is strictly correct legal parlance to speak of concurrent possession. In this connection it seems to me possession is single and exclusive. No doubt the appellants occupied the land. With every respect to the opinion of the learned trial Judge, I think that the land should be regarded as in the possession of one or the other of the two parties concerned. On that footing it follows from the judgment of the learned trial Judge that the respondent, having picked cherries, remained at that period in possession of the land. If this conclusion be right, it is enough to decide the case in the respondent’s favour. I note, however, that a point much agitated before this Court was whether the learned trial Judge erred in law in finding that the appellants required an intention to defeat or exclude the true owners from the land. I think I ought to deal with this point, though the careful judgment of the trial Judge, with which I agree, absolves me from attending to the matter in great detail. It is, I think, beyond the reach of controversy that the appellants never had any intention, nor claimed any intention of excluding the Grants. The dominant feature in the case is the fact that as late as 1969 the appellants offered to purchase the land from the Grant estate for the sum of $1,000. Counsel for the appellants, however, contended that the concept of adverse possession does not involve an intention on the part of the person in possession to acquire a right against a particular person. He founded himself on a passage in the judgment of Osler, J., in Smaglinski et al. v. Daly et al.,  2 O.R. 275, 10 D.L.R. (3d) 507; affirmed  3 O.R. 238, 20 D.L.R. (3d) 65. On p. 282 O.R., p. 514, D.L.R., Osler, J., uses this language:
… I think it can be said that a person who remains in exclusive possession, even though uncertain of his right to do so, can nevertheless acquire a possessory title. In the present case Joseph Norlock, though uncertain of and quite probably unconcerned about the precise legal nature of his occupancy, did act in a manner entirely consistent with ownership in clearing and sowing the land and there is no evidence whatever that his right to do so was questioned at any time by Philip Norlock, owner of the paper title. I do not read the language of my learned friend, Mr. Justice Osler, as I gather that counsel for the appellants does. I am myself unable to accept the suggestion that Justice Osler was saying that an intention to defeat the true owner was unnecessary. Moreover, there is nothing to show that the minds of the trial Judge or the members of the Court of Appeal were directed to the point. The question, however, is not a new one. It was raised before the Court of Appeal in A.-G. Can. v. Krause,  O.R. 675, 3 D.L.R. (2d) 400, and (to my mind) there deliberately answered. There the subject of controversy was a claim of title by possession. The judgment was delivered by Roach, J.A., who stated at p. 691 O.R., p. 408 D.L.R.:
The occupation, the holding or enjoying contemplated by The Nullum Tempus Act and which would bar the Crown, is such as would constitute a civil possession against a subject owner: see the reasons of Duff J., as he then was, in Hamilton et al. v. The King (1917), 54 S.C.R. 331 at 371, 35 D.L.R. 226. This means that throughout the statutory period as against the Crown, there must have been, if the defendant is to succeed, (1) exclusive occupation in the physical sense, i.e., detention, and (2) the animus possidendi. As to the meaning of animus possidendi, the observation of Lord Lindley, M.R., in Littledale v. Liverpool College,  1 Ch. 19 at p. 23, is most instructive. The particular passage to which I refer reads as follows:
They could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi — i.e., occupation with the intention of excluding the owner as well as other people. Confirmation for what has been said as to the meaning of animus possidendi by Lord Lindley is to be found in Black’s Law Dictionary, 4th ed. (1951), p. 114, as follows: “Animus Possidendi. The intention of possessing.” New strength, I think, is given to definitions such as these when one passes to the decision of the Court of Appeal in Krause v. Happy,  O.R. 385, 24 D.L.R. (2d) 310, McGillivray, J.A., in delivering the judgment of the Court, quoted with approval the language of Roach, J.A., in the passage which I just cited from A.-G. Can. v. Krause. At p. 394 O.R., p. 314 D.L.R., he goes on to discuss the evidence in these terms:
That the evidence did not indicate animus possidendi of the plaintiffs’ part is indicated by the testimony of Wm. Krause Sr. Referring to the property he said, “I wouldn’t steal it from him” and “I didn’t expect to get the land for nothing.” This observation, I think, suggests on its face that the Court was concerned with the question of intention in considering the burden upon the one seeking to establish title by possession. I agree, therefore, with the trial Judge that the question whether there was an intention on the part of the appellants to dispossess the owner was a matter to be considered.
I have mentioned the fact that the weeping bed of the appellants’ septic tank system was located in 1954 on the land in dispute. I can dispose in brief terms of a subsidiary point that emerged out of that fact. The point was neither in the pleadings nor argued in the Court below. In this Court, counsel for the appellants very faintly adumbrated the suggestion that by now (1974) there was here something which is the nature of a proprietary interest. Counsel did not pursue the matter further. I assume without deciding that he was referring to something in the nature of an easement — a right to pass the septic tank overflow under the respondent’s land; a right in respect of which the respondent’s land had become (so to speak) a servient tenement. As I have said, the Court was not invited (for obvious reasons) to consider the matter and I express no view on it.
It remains for me to notice a second subsidiary point. It was argued by counsel for the appellants that an action shall not be deemed to have been brought within the meaning of the Limitations Act until notice of the application for first registration has been served on the appellants. The application for first registration was filed on or about March 8, 1972. Notice of the application was not served on the appellants until December 18, 1972. It was argued that at the latest there was adverse possession on the part of the appellants from the spring of 1962 onward and the action was not brought until December 18, 1972. Accordingly (it was said), the right of action had accrued at a date more than 10 years before the proceedings and therefore the respondent could not avail itself of the defence afforded by the Limitations Act.
An action is defined in s. 1(a) of the Limitations Act as follows:
“action” includes an information on behalf of the Crown and any civil proceedings;
It will at once be observed that the definition just quoted is an inclusive, rather than an exclusive, definition. If by virtue of filing an application for first registration a party becomes entitled to invoke the jurisdiction of the master of title in a matter relating to the title of land, then it seems prima facie, though I express no final view on the matter because it is unnecessary that an “action” within the meaning of the Limitations Act would cover an application for first registration. That, however, is unnecessary to decide because I am not prepared to differ from the judgment of the learned Judge in the Court below. I adopt and repeat here the final passage from that judgment:
The conduct of the MacDonalds alleged to amount to possession was a series of acts over a number of years. Even if we assume that Annie Grant was not in possession, when did she have a right of action for recovery of her land as opposed to a right of action for trespass? I do not think that it can be said beyond a balance of probabilities that such a cause of action would have accrued to her or her successors more than 10 years before the filing of the application for first registration herein. Indeed, the evidence before me indicates that such a cause of action could not possibly have been maintained before the planting of the lawn in the spring of 1962. The exact date of such planting was not established by the MacDonalds, but it unlikely that it would have been done as early as March. It seems to me that the cumulative effect of the acts of the MacDonalds would have given Annie Grant a right of action for recovery of the disputed lands sometime in 1965 when the bird-house was erected, and the hull and trailer parked on the disputed property. This is far short of the 10 years required under the statute.
For these reasons I would dismiss the appeal.