Court File and Parties
Court of Appeal for Ontario
Before: Weiler, Moldaver and Juriansz JJ.A.
Between:
Jeffery Stuart Tasker and Margo Louise Tasker
Applicants (Respondents)
and
Charles Everett Badgerow
Respondent (Appellant)
Counsel:
Brian G. Saunderson for the appellant
Margo Louise Tasker, in person
Heard and released orally: March 19, 2008
On appeal from the judgment of Justice John Murray of the Superior Court of Justice dated May 24, 2007.
Endorsement
Analysis
1The appellant submits that the application judge committed a palpable and overriding error in holding that he had not acquired title by adverse possession. Specifically, he submits that the fence around the property is strong evidence of intent to exclude the original owners from its use and that, together with actual open possession for over ten years without objection by the original owners, he has title by adverse possession.
2The appellant’s argument ignores the special nature of the land in issue. The land in question is a Mill Reserve and the trial judge found the claimant’s use was not inconsistent with the owners’ use. The trial judge stated at para. 123 of his reasons, there is no evidence, “….that the owners of the Mill Reserve ever intended to do other than keep the land for purposes containing a millpond or head pond resulting from damming the Beaver River.”
3Indeed, in oral argument, it was conceded that the owners of the Mill Reserve had the right to flood it. The fact that at one time there was, on a part of the property, a barn, or that chickens or a dog were on it, does not detract from the trial judge’s conclusion that the use or uses to which the property had been put was not inconsistent with the owners’ rights. This was a conclusion open to him on the evidence.
Disposition
4The appeal is therefore dismissed. Costs to the respondents fixed in the amount of $2,500, all inclusive.
“K.M. Weiler J.A.”
“M.J. Moldaver J.A.”
“R.G. Juriansz J.A.”
