Teis et al. v. Corporation of the Town of Ancaster
[Indexed as: Teis v. Ancaster (Town)]
35 O.R. (3d) 216
 O.J. No. 3512
Court of Appeal for Ontario,
Carthy, Abella and Laskin JJ.A.
September 3, 1997
Real property — Adverse possession — Test of inconsistent use — Test of inconsistent use not applying to case of mutual mistake about title — Limitations Act, R.S.O. 1990, c. L.15, ss. 4, 15.
The Ts brought an action for a declaration that they had acquired possessory title to two strips of land, the “ploughed strip” and the “laneway”, which were located at the western edge of a public park in the Town of Ancaster. The Town had paper title to the two strips of land. The Ts, however, had considered the ploughed strip to be part of the north field of their farm and they had created the laneway to move their farm equipment. Members of the public had used the laneway to gain access to the park. The trial judge declared that they were owners by adverse possession but that the public was entitled to travel over part of the laneway by foot. The Town appealed, and the Ts cross-appealed that part of the judgment granting the public a right-of-way over the laneway. The main ground of appeal was that the trial judge erred by not giving effect to the test of inconsistent use, which test was not referred to in his reasons for judgment.
Held, the appeal and the cross-appeal should be dismissed.
The Town acknowledged that the Ts intended to exclude the Town from possession and that the Town was effectively dispossessed for the statutory period, and the trial judge had found as a fact that the Ts had actual possession of the strips for the statutory period.
For a successful claim of adverse possession, the possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. The Town only challenged the trial judge’s findings that the Ts’ possession was adverse and that it was continuous. However, in the immediate case, there was no palpable and overriding error by the trial judge justifying setting aside the finding of fact that the Ts had actual possession.
As for the main ground of appeal, the Town submitted that the Ts’ possession of the disputed strips was not inconsistent with the use that the Town intended to make of these lands and that, to succeed, the Ts had to meet this test of inconsistent use.
However, the test of inconsistent use does not apply to a case of mutual mistake about title, which was the situation in the case at bar. If the test did apply, every adverse possession claim in which the parties were mistaken about title would fail since inconsistent use means that the claimant’s use of the land is inconsistent with the true owner’s intended use.
However, if the true owner mistakenly believes that the claimant owns the disputed land, then the owner can have no intended use for the land and, correspondingly, the claimant’s use cannot be inconsistent with the owner’s intended use. It made no sense to apply the test of inconsistent use when both the paper title holder and the claimant are mistaken about their respective rights. The application of the test would defeat adverse possession claims in cases of mutual mistake, yet permit such claims to succeed in cases of knowing trespass. Thus applied, the test would reward the deliberate squatter and punish the innocent trespasser. Policy considerations supported a contrary conclusion. The law should protect good faith reliance on boundary errors or at least the settled expectations of innocent adverse possessors who have acted on the assumption that their occupation will not be disturbed.
Here the evidence established that the parties mistakenly believed that the Ts owned the disputed strips and the test of inconsistent use did not apply. Accordingly, the appeal should be dismissed.
A possessory title may be subject to a right of way, and the trial judge’s findings were supported by the evidence; accordingly, the cross-appeal should also be dismissed.
Cases referred to
Beaudoin v. Aubin (1981), 33 O.R. (2d) 604, 125 D.L.R. (3d)
277, 21 R.P.R. 78 (S.C.); Fletcher v. Storoschuk (1981), 35
O.R. (2d) 722, 128 D.L.R. (3d) 59, 22 R.P.R. 75 (C.A.);
Household Realty Corp. v. Hilltop Mobile Home Sales Ltd. (1982), 37 O.R. (2d) 508, 136 D.L.R. (3d) 481, 24 R.P.R. 263
(C.A.); Keefer v. Arillotta (1976), 13 O.R. (2d) 680, 72
D.L.R. (3d) 182 (C.A.); Laing v. Moran,  O.R. 215, 
2 D.L.R. 468 (C.A.); Leigh v. Jack (1879), 5 Ex. D. 264, 49
L.J.Q.B. 220, 42 L.T. 463, 44 J.P. 488, 28 N.R. 452 (C.A.);
Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563, 2
O.A.C. 147, 31 R.P.R. 200 (C.A.); Meshberg v. Bridgemport City Trust Co., 429 A.2d 865; Pflug v. Collins,  O.R. 519,  3 D.L.R. 681 (H.C.J.) [affd  O.W.N. 140, 
1 D.L.R. 841 (C.A.)]; Schmitt v. Carbondale (City), 101 A.755 (1917); Walker v. Russell,  1 O.R. 197, 53 D.L.R. (2d)
509 (H.C.J.); Wood v. Gateway of Uxbridge Properties Inc. (1990), 75 O.R. (2d) 769, 14 R.P.R. (2d) 262 (Gen. Div.)
Statutes referred to
Limitations Act, R.S.O. 1990, c. L.15, ss. 4, 15 Municipal Government Act, S.A. 1994, c. M-26.1, s. 609
Authorities referred to
3 Am. Jur. (2d), para. 271
Bucknall, “Two Roads Diverged: Recent Decisions on Possessory Title” (1984), 22 Osgoode Hall L.J. 375
Rogers, Law of Canadian Municipal Corporations, 2nd ed. (1971), vol. 2, p. 1096
Ziff, Principles of Property Law, 2nd ed. (Toronto: Carswell, 1996), pp. 118-26
APPEAL and CROSS-APPEAL from a judgment declaring ownership by adverse possession.
Lee A. Pinelli, for appellant. Richard Horodyski, for respondents.
The judgment of the court was delivered by
LASKIN J.A.: — John and Elsie Teis claimed possessory title to two strips of land — the “ploughed strip” and the “laneway” — located on the western edge of Jerseyville Park, a public park owned by the Town of Ancaster and used mainly to play baseball. For more than 10 years, both the Teises and the Town mistakenly believed that the Teises owned these two strips of land. In a judgment dated January 18, 1994, Lazier J. declared that the Teises were owners by adverse possession of the ploughed strip and the laneway but that the public was entitled to travel over part of the laneway by car and all of the laneway by foot. The Town appeals and asks that the Teises’ action be dismissed. The Teises cross-appeal and ask to delete that part of the judgment granting the public a right of way over the laneway.
The main issue on the appeal is whether a person claiming possessory title must show “inconsistent use” when both the claimant and the paper title holder mistakenly believe that the claimant owns the land in dispute. Inconsistent use means that a claimant’s use of the land is inconsistent with the true owner’s intended use of the land. The other issue on the appeal is whether the trial judge made a “palpable and overriding error” in holding that the Teises had “actual possession” of the disputed strips for the ten-year period prescribed by the Limitations Act, R.S.O. 1990, c. L.15.
In my opinion, the test of inconsistent use does not apply to a case of mutual mistake and the trial judge did not err in finding actual possession. Accordingly, I would dismiss the appeal. I would also dismiss the cross-appeal because of the findings of fact made by the trial judge.
Before 1968, a man named Alexander Hunter owned all of the land in the area in question. In December 1968, Hunter conveyed to the Town a 66-foot strip of land called the Maple Street extension. At the same time, Hunter also conveyed to the Town a parcel of land north of the Maple Street extension. In 1971, the Town converted this parcel into a public park, which it called Jerseyville Park. Hunter died in March 1969. In August of that year, his estate conveyed to the Teises the land south of the Maple Street extension. In July 1971, the Hunter estate conveyed to the Teises the land north of the Maple Street extension and directly west of Jerseyville Park (the “north field”). In September 1970, before closing the purchase of the north field, the Teises went into possession of it, took out the trees and weeds, and ploughed it. The Teises have farmed the north field continuously from 1970 onward.
The two disputed strips of land are legally owned by the Town. They lie along the western edge of Jerseyville Park and each ranges in width from roughly 10 to 15 feet. The Teises have considered the ploughed strip part of the north field and therefore have farmed it since 1970. The Teises created the
laneway to move their ploughs and other farm equipment. Members of the public have also used the laneway for recreational walking and for parking their cars when little league baseball was being played in Jerseyville Park. The Teises have never fenced their land.
Before 1989 the Town did not challenge the Teises’ use of the ploughed field or the laneway. In 1989, however, the Town built a clubhouse in the northwest corner of Jerseyville Park. The clubhouse eliminated part of an existing park area and caused the Town to look for other short-term parking for users of the park. On August 1, 1989, the Town’s chief administrative officer sent the following memorandum to the Town’s Director of Culture and Recreation, Paul Harrison:
As per our discussions yesterday and today, could we please inform the farmer who is occupying 5 metres of our property on the west side of the Jerseyville Park and also some land on the south side, to stop using the public land as soon as his crop is off.
I am afraid that if this man can get 10 years of unobjected occupancy from the Town, he might be in a position where we could not actually get him off our property and he has acquired our land simply through our failure to notify him to vacate the land.
Despite this memorandum, Harrison apparently never told the Teises to stop using the ploughed strip or the laneway. Still, after the clubhouse was built, the public began to interfere significantly with the Teises’ use of these two strips of land. In 1991, the Teises sued for possessory title.
Under ss. 4 and 15 of the Limitations Act the interest of the true owner of land may be extinguished by a person who has been in adverse possession of that land for ten years. Sections 4 and 15 provide:
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 the person making or bringing it claims, or if the right did not accrue to any person through whom that person 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.
. . . . .
15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.
At the end of the ten-year period these provisions bar the remedy and extinguish the title of the true owner.
The requirements a claimant must satisfy to establish possessory title were set out by Wells J. in Pflug v. Collins,  O.R. 519,  3 D.L.R. 681 (H.C.J.), a case relied on by Lazier J. and referred to with approval by Wilson J.A. in the following passage of her majority judgment in Keefer v. Arillotta (1976), 13 O.R. (2d) 680 at p. 692, 72 D.L.R. (3d) 182 (C.A.):
In Pflug and Pflug v. Collins,  O.R. 519 at p. 527,  3 D.L.R. 681 at p. 689 [affirmed  O.W.N. 140,
 1 D.L.R. 841], Mr. Justice Wells (as he then was) made it clear that a person claiming a possessory title must establish (1) actual possession for the statutory period by themselves and those through whom they claim; (2) that such possession was with the intention of excluding from possession the owner or persons entitled to possession; and
(3) discontinuance of possession for the statutory period
by the owner and all others, if any, entitled to possession. If he fails in any one of these respects, his claim fails.
Lazier J. found that, although the second requirement “presents some difficulties” on the evidence, the Teises had satisfied all three requirements from 1971 until the present. Lazier J. also referred to the judgment of this court in Masidon Investments Ltd. v. Ham (1984), 45 O.R. (2d) 563, 31 200 (C.A.) and held that, to establish possessory title, the Teises:
. . . must show that for an uninterrupted period of ten years they were in actual possession of the strips of land in question; they intended to exclude the true owners from possession; and the true owners were in fact effectively excluded from possession.
On the evidence before me I find that the plaintiffs had open, notorious, constant, continuous, peaceful and exclusive use of the land to the exclusion of the right of the registered owner to such possession and ownership.
His conclusion covered both the ploughed strip and the laneway, but he held that the public had a right of way over the laneway. The Town submits that the trial judge erred in holding that the Teises had satisfied the first requirement set out in Pflug. The Town also submits that the trial judge erred in failing to apply the test of inconsistent use and therefore erred in holding that the Teises had satisfied the second and third requirements in Pflug.
The first requirement is actual possession for the ten-year period. To succeed, the acts of 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. The trial judge found that all of these elements had been met for more than ten years. This finding is a finding of fact, which cannot be set aside on appeal unless the trial judge made a “palpable and overriding error”. In my view, the Town has failed to demonstrate such an error.
Possession must be open and notorious, not clandestine, for two reasons. First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner’s failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner: Ziff, Principles of Property Law, 2nd ed. (Toronto: Carswell, 1996) at pp. 118-26. The Town does not contest the trial judge’s finding that the Teises’ possession of the ploughed strip and the laneway was open and notorious. Equally, the Town does not contest the trial judge’s finding that the Teises had actual, peaceful, and exclusive possession of these two strips for the statutory period. The Town does challenge the trial judge’s finding that the Teises’ possession was adverse and continuous.
The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then the possession is not adverse. To show the absence of adversity, the Town relies on Harrison’s evidence of a meeting with Mr. Teis in 1978 or 1979. According to Harrison, at the meeting, Teis admitted that he was using the Town’s lands and Harrison told him “that it was alright for him to use the laneway”. Teis denied that such a meeting ever took place. The trial judge, as he was entitled to do, rejected Harrison’s evidence. He therefore did not err in holding that the element of adversity had been met.
The Town also argues that the Teises’ possession was seasonal or intermittent and not continuous. The nature of the acts needed to establish possession depends on the type of property. For some types of property, even intermittent use will satisfy the element of continuity. As Gale C.J.H.C. said in Walker v. Russell,  1 O.R. 197 at p. 210, 53 D.L.R. (3d) 509 (H.C.J.):
The sufficiency and character of the possession necessary to pass title must be considered and tested in the light of the circumstances which surround each particular case. Acts which amount to possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers. See also Laing v. Moran,  O.R. 215,  2 D.L.R. 468 (C.A.).
The trial judge expressly addressed the element of continuity in the following passage in his reasons:
With respect to the question of continuous possession, the defendant endeavoured to show that during the winter months the lands were not used by the plaintiffs and therefore possession could not be called continuous. This does not meet the evidence as I found it. The plaintiffs did plant fall wheat, for example, which is a crop put in by them which is in the land during the winter months with the intention of it being harvested the following spring or summer. That alone would be sufficient to give the plaintiffs possession of the lands.
I agree with the trial judge that the Teises showed ongoing or continuous use. I would not give effect to this ground of appeal.
The appellant’s main ground of appeal is that the trial judge erred by not giving effect to the test of inconsistent use. The Town acknowledges that the Teises intended to exclude the Town from possession of the disputed strips for more than ten years and that the Town was effectively dispossessed for the statutory period. But the appellant submits that the Teises’ possession of the disputed strips was not inconsistent with the use the Town intended to make of them. The appellant argues that, because the Town did not need the ploughed strip or the laneway for Jerseyville Park before 1989, the Teises’ previous use was not inconsistent with the Town’s intended use and therefore the limitation period did not begin to run until 1989 at the earliest. The trial judge did not advert to the test of inconsistent use in his reasons. This test appears to have originated with the English case of Leigh v. Jack (1879), 5 Ex. D. 264 at p. 273, 49 L.J.Q.B. 220 (C.A.), in which Bramwell L.J. said:
I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes. The plaintiff has not been dispossessed, nor has she discontinued possession, her title has not been taken away, and she is entitled to our judgment. Wilson J.A. imported this test into Ontario case-law in her judgment in Keefer v. Arillotta, supra. She viewed it as relevant to the claimant’s obligation to demonstrate an intention to possess, the second requirement set out in Pflug, supra. At p. 691 of her reasons she wrote:
The use an owner wants to make of his property may be a limited use and an intermittent or sporadic use. A possessory title cannot, however, be acquired against him 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 a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property. She reiterated this proposition in Fletcher v. Storoschuk (1981), 35 O.R. (2d) 722, 128 D.L.R. (3d) 59 (C.A.).
In the subsequent case of Masidon Investments Ltd. v. Ham, supra, Blair J.A. also applied the test of inconsistent use but he viewed it as relevant to the claimant’s obligation to demonstrate discontinuance of possession by the true owner for the statutory period, the third requirement set out in Pflug, supra. In Blair J.A.’s view, the notion of “adversity” in the phrase adverse possession is reflected in the test of inconsistent use. He said at p. 568 of his reasons:
Carruthers J. held that the appellant’s claim to a possessory title failed because he had not satisfied the second and third tests set out above. I propose to discuss these tests in reverse order dealing first with exclusion from possession and then the intention to exclude.
Was the use of the land made by the appellant inconsistent with that of the respondents? The question of “adverse possession”
The person claiming a possessory title must demonstrate that his possession effectively excluded the possession of the true owner. The term “adverse possession” shortly describes this test. It no longer bears the technical meaning it did before the enactment of the Limitations Act [“An Act to amend the Law respecting Real Property”], 1834 (U.C.), c. 1, which adopted the language of the Real Property Limitations Act, 1833 (U.K.), c. 27. Before 1833, some acts of possession were deemed to be acts on behalf of the owner and hence not “adverse”. As a consequence of the reforming statutes of the 1830s, adverse possession is established where the claimant’s use of the land is inconsistent with the owner’s “enjoyment of the soil for the purposes for which he intended to use it”: Leigh v. Jack (1879), 5 Ex. D. 264 at p. 273, per Bramwell L.J., and see Megarty and Wade, The Law of Real Property, 4th ed. (1975), p. 1013. In all three cases — Keefer, Fletcher and Masidon — the person claiming a possessory title had knowingly trespassed on the owner’s land. The claimant had used the land knowing that it belonged to someone else. In Wood v. Gateway of Uxbridge Properties Inc. (1990), 75 O.R. (2d) 769, 14 R.P.R. (2d) 262
(Gen. Div.), Moldaver J. held that the test of inconsistent use did not apply to a case of mutual mistake about title. I agree with Moldaver J. I am also of the opinion that the trial judge treated the case under appeal as a case of mutual mistake. He found that, for the statutory period, both the Teises and the Town mistakenly believed that the Teises owned the two disputed strips. This finding is reasonably supported by the evidence. Therefore, in my view, the test of inconsistent use cannot defeat the Teises’ claim to a possessory title.
The test of inconsistent use focuses on the intention of the owner or paper title holder, not on the intention of the claimant. It is a controversial element of an adverse possession claim even when the claimant knowingly trespasses on the owner’s land: see Ziff, supra, at pp. 124-26 and Bucknall, “Two Roads Diverged: Recent Decisions on Possessory Title” (1984), 22 Osgoode Hall L.J. 375. Taken at face value, its application could unduly limit successful adverse possession claims, especially when land is left vacant. A paper title holder could always claim an intention to develop or sell the land, or could maintain that a person in possession cannot hold adversely to someone who does not care what is happening on the land.
Even accepting, however, that the test applies to cases of knowing trespass, it cannot apply to cases of mutual mistake. If it did apply, every adverse possession claim in which the parties were mistaken about title would fail. Inconsistent use means that the claimant’s use of the land is inconsistent with the true owner’s intended use. If the true owner mistakenly believes that the claimant owns the disputed land, then the owner can have no intended use for the land and, correspondingly, the claimant’s use cannot be inconsistent with the owner’s intended use. As Moldaver J. wrote in Wood, supra, at p. 778:
I must confess some difficulty applying this “test” to the case at bar. I say this because the true owners did not know that they were the rightful owners of the two-acre parcel during the requisite time frame. How then is it possible to determine what use they intended for the property when they at no time even contemplated its use? And if they had no intended use for the property, how can one compare the use of the applicants to find consistency or lack thereof with a non-existent intended use?
Therefore, if a claimant were required to show inconsistent use when both parties were honestly mistaken about the true boundary line, the claimant could never make out a case of adverse possession. Such a result would offend established jurisprudence, logic and sound policy.
The law reports contain many cases in which an adverse possession claim has succeeded though the parties were mistaken about who owned the disputed land. These cases are cited by Anderson J. in Beaudoin v. Aubin (1981), 33 O.R. (2d) 604, 125
D.L.R. (3d) 277 (H.C.J.), and by Moldaver J. in Wood, supra. None of these cases even refer to the test of inconsistent use.
It makes no sense to apply the test of inconsistent use when both the paper title holder and the claimant are mistaken about their respective rights. The application of the test would defeat adverse possession claims in cases of mutual mistake, yet permit such claims to succeed in cases of knowing trespass. Thus applied, the test would reward the deliberate squatter and punish the innocent trespasser. Policy considerations support a contrary conclusion. The law should protect good faith reliance on boundary errors or at least the settled expectations of innocent adverse possessors who have acted on the assumption that their occupation will not be disturbed. Conversely, the law has always been less generous when a knowing trespasser seeks its aid to dispossess the rightful owner. Blair J.A. discussed this policy in Masidon, supra, at p. 574:
The policy underlying the Limitations Act was stated by Burton J.A. in Harris v. Mudie (1882), 7 O.A.R. 414, as follows at p. 421:
The rule, as I understand it, has always been to construe the Statutes of Limitations in the very strictest manner where it is shewn that the person invoking their aid is a mere trespasser . . . and such a construction commends itself to one’s sense of right. They were never in fact intended as a means of acquiring title, or as an encouragement to dishonest people to enter on the land of others with a view to deprive them of it.
Robins J.A. speaking for this Court in the Giouroukos case, supra, reiterated this policy when he said at pp. 187-8:
When all is said and done, this is a case of a businessman seeking to expand significantly the size of his commercial land holding by grabbing a valuable piece of his neighbour’s vacant property. The words of Mr. Justice Middleton used in denying the claim of an adverse possessor to enclosed land in Campeau v. May (1911), 19 O.W.R. 751 at p. 752, are apposite:
It may be said that this makes it very hard to acquire a possessory title. I think the rule would be quite different if the statute was being invoked in aid of a defective title, but I can see nothing in the policy of the law, which demands that it should be made easy to steal land or any hardship which requires an exception to the general rule that the way of the transgressor is hard. The test of inconsistent use furthers this policy by strengthening the hand of the true owner in the face of an adverse possession claim by a knowing trespasser. Applying the test to claims by persons who honestly, though mistakenly, use land not their own, defeats this policy. I therefore conclude, as Moldaver J. did in Wood, that the test does not apply to cases of mutual mistake about ownership.
Before considering the facts of this case in the light of this conclusion, I wish to address two related points. First, in Masidon, supra, Blair J.A. held that the test of inconsistent use captured the notion of “adversity” in the phrase “adverse possession”. Of course, the phrase does not appear in the Limitations Act. Nonetheless, it conveniently describes claims for possessory title under the statute. If “adversity” is required, I would hold that, at least in a case like the one under appeal, adversity simply means being in possession without the authorization of the paper title holder: see Beaudoin v. Aubin, supra, at pp. 612-14.
Second, in cases of mutual mistake, even requiring the claimant to show an intention to exclude the owner from possession — the second requirement in Pflug — is problematic. It might be asked: “How could the applicants intend to dispossess the true owner when they believed . . . that they were the true owners?” (per Moldaver J. in Wood, supra, at p. 778). The answer is provided by Blair J.A. in Masidon, at p. 575:
The appellant’s occupancy of the land was not justified by any suggestion of colour of right or mistake as to title or boundaries. Occupation under colour of right or mistake might justify an inference that the trespasser occupied the lands with the intention of excluding all others which would, of course, include the true owners. In other words, in cases of mutual mistake the court may reasonably infer, as indeed I infer in this case, that the claimants, the Teises, intended to exclude all others, including the paper title holder, the Town. I now return to the evidence and the trial judge’s findings of fact. Although the trial judge did not expressly state that this was a case of mutual mistake, he effectively found that, throughout the ten-year statutory period, both the Teises and the Town mistakenly believed that the Teises owned the disputed strips. For example, the trial judge held, “[i]t does not appear to have come to the Township’s notice that there was a possible loss of land by the Township, now the Town, to the plaintiffs until August, 1989.” The trial judge continued:
Also I must emphasize the evidence of the plaintiff Teis to the effect that he was told to erect a culvert on what the Township now claims to be its lands. Why would the plaintiff acquiesce and install the culvert if, in fact, he thought the land belonged to the Township? Also, why would the Township instruct him to install the culvert on its lands?
In so holding, the trial judge relied both on the evidence of Mr. Teis and the evidence of Reg Ferguson, who was the Town’s Parks and Cemetery Supervisor between 1966 and 1979. When the Teises occupied the north field as tenants in 1970, the Town told them to put a culvert under the laneway. Later, in 1970 or in 1971, Teis and Ferguson met at the site and discussed what they believed to be the boundary of the Town’s land and the Teises’ land. Each believed that the Teises’ land included the two disputed strips, the ploughed strip, and the laneway. The trial judge expressly held that “Ferguson was under the impression that the easterly boundary of the Teis property was along the east side” of the laneway.
Indeed, the Town planted trees which it believed were approximately seven or eight feet east of the Teis driveway so that the branches would not interfere with the Teises’ use of the laneway. The Town also erected “No Trespassing” signs east of the laneway. Finally, throughout the Teises’ possession of the disputed property, the Town had a policy of stopping residents from planting crops in park land. Before 1989 the Town never asked the Teises to stop using the ploughed strip or the laneway and, according to Mr. Teis, whose evidence was accepted by the trial judge, never told the Teises that they were encroaching on Town land. All of this evidence reasonably supported the trial judge’s finding that both the Teises and the Town were mistaken about the ownership of the disputed strips. Because the parties mistakenly believed that Teis owned the disputed strips for more than ten years, the test of inconsistent use does not apply. Therefore, in my view, this ground of appeal must fail, as must the Town’s appeal.
The Teises submit that the trial judge erred in declaring that the public had a right of way over the laneway. A possessory title may be subject to a right of way: see Ziff, supra, at p. 119. The trial judge granted a right of way because he found that:
This particular lane has not been in the exclusive domain of the plaintiffs. Members of the public have traversed these lands on foot and at times when the lands to the east were being used for recreation, including Little League Baseball, vehicles were parked on part of the [laneway] from time to time. This finding was supported by the evidence of Town residents and Mr. Teis. I would not interfere with it. Accordingly, in my view the cross-appeal must fail.
Adverse Possession of Municipal Park Land
Most adverse possession claims involve disputes between private property owners. In this case, the Teises claim adverse possession of municipally owned land. I have some discomfort in upholding a possessory title to land that the Town would otherwise use to extend its public park for the benefit of its residents. Still, the Town did not suggest that municipally owned park land cannot be extinguished by adverse possession or even that different, more stringent requirements must be met when the land in dispute is owned by a municipality and would be used for a public park. This case was argued before the trial judge and in this court on the footing that the ordinary principles of adverse possession law applied. The application of those principles to the evidence and the trial judge’s findings of fact justify extinguishing the Town’s title to the ploughed strip and the laneway.
Several American states have legislation that prevents a limitation period from running against “municipal property devoted to public use”: see 3 Am. Jur. (2d), para. 271. Even at common law, some American courts have decided that municipally owned land used for a public purpose, such as a park, cannot be acquired by adverse possession: see, for example, Meshberg v. Bridgemport City Trust Co., 429 A.2d 865 and Schmitt v. Carbondale (City), 101 A. 755 (1917).
In Canada, Alberta is the only province with legislation protecting all municipally owned land against claims of adverse possession: Municipal Government Act, S.A. 1994, c. M-26.1, s. 609. In Ontario, streets, highways, and road allowances have been protected from adverse possession or encroachment claims. In Household Realty Corp. v. Hilltop Mobile Home Sales (1982), 37 O.R. (2d) 508 at p. 515, 136 D.L.R. (3d) 481 (C.A.), Thorson
J.A. cited with approval the following passage from Rogers, Law of Canadian Municipal Corporations, 2nd ed. (1971), vol. 2 at p. 1096:
The right of ownership in real property, such as a highway, a market or a public wharf, held by a municipality for the common benefit or use of its inhabitants and of the Queen’s subjects in general, is of such a public character that it cannot, as a general rule, be lost by adverse possession over the prescriptive period. It is expressly declared by the statute that road allowances cannot be extinguished by adverse possession.
Whether, short of statutory reform, the protection against adverse possession afforded to municipal streets and highways should be extended to municipal land used for public parks, I leave to a case where the parties squarely raise the issue.
I would dismiss both the appeal and the cross-appeal with costs.
Appeal and cross-appeal dismissed.