ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 67/13
DATE: 2014-03-19
BETWEEN:
Sean Maxwell Sumner, Scott Patrick
Sumner and Jeffery Raymond Sumner
Plaintiffs
– and –
Barry Ross Sullivan and
Elizabeth Anne Sullivan
Defendants
P. Karsten, for the Plaintiffs
P. Quinlan, for the Defendants
HEARD: November 7, 2013 and
February 13, 2014
the HONOURABLE mr. justice p. b. hambly
REASONS FOR JUDGMENT
Introduction
[1] This is a dispute between two adjacent cottage owners in Long Point on Lake Erie over the ownership of a piece of land located on one of their lots. There is no survey of the two lots. The parties are agreed as to the approximate boundaries of the Disputed Land. The cottage owners who believed that the Disputed Land was their land have commenced an action for a declaration that they own the Disputed Land by adverse possession or in the alternative that they have a prescriptive easement over the Disputed Land and related relief. The two lots were registered in the Land Titles system on June 25, 2007. The cottage owners, who are the registered owners of the Disputed Land, have brought a motion for summary judgment dismissing the plaintiffs’ claims and for an order that the plaintiffs remove a shed that they built on the Disputed Land. Each side has filed extensive affidavit material.
[2] The cottage owners in this dispute are part of a community of cottage owners on Long Point. Many of the cottage owners have inherited their cottages. The members of the cottage community are close knit. Relations between them are generally good. Relations between the parties in this lawsuit and their predecessors in title were good until this dispute arose. The thrust of the evidence is that the cottage owners did not pay much attention to the boundaries of their lots as determined by surveyors.
The Facts
The Ownership of the Lots
The Sumners
[3] In 1944 Maxwell Sumner leased a lot from the Long Point Park Commission. He built a cottage on it. The Province of Ontario conveyed the lot (the Sumner lot) to him in 1959. He died in 1963. He left the lot and cottage to his son, Muir Sumner. He conveyed the lot and cottage to his sons, Sean Sumner, Scott Sumner and Jeffrey Sumner (the Sumner brothers) in 1993. All of the Sumner men are professional people. Muir Sumner is 75. He is a retired high school chemistry teacher. Jeff Sumner is a dentist who practices in Kitchener, Ontario. He is 43. Scott Sumner is the regional manager of a pharmaceutical company. He resides in New South Wales in Australia. He is 44. Sean Summer lives in Georgia in the USA. He is a physician who specializes in internal medicine. He is 46. It is clear that Muir Sumner still has a substantial influence on what happens at the cottage.
The Sullivans
[4] In 1947 Alfred Roos and William Stoneman leased a lot immediately to the north of the Sumner lot from the Town of Ingersoll. They built a cottage on it in 1952 or 1953. The provincial government conveyed the lot to them in 1952. In 1986 Barry and Elizabeth Sullivan purchased the lot (the Sullivan lot) and cottage from Alfred Roos and the estate of William Stoneman. In an affidavit sworn June 25, 1986 related to the purchase, Alfred Roos and Marion Stoneman, the widow and beneficiary of William Stoneman, deposed that their occupation of the lot had been uninterrupted by adverse possession and that there were no disputes as to the boundaries of the lands. Barry Sullivan is age 61. He is a retired iron worker.
[5] Immediately to the south of the Sumner lot is a lot and cottage owned by people named Cresswell. To the south of their property is Lake Erie. The three lots front onto Sandy Lane, which runs north to south on the Western boundary of the lots down to Lake Erie. On the east boundary of the lots is a provincial park.
The Disputed Land
[6] The Sullivan lot is 56’ north to south by 75’. The Sumner lot is 75’ by 75’. The Disputed Land between the two lots is 15’ to 20’ by 75’. Its southern border is 11’ north of the northern edge of the Sumner cottage. It is covered in sand. It is an open area. There are some trees on it. There are no fences or hedges on the Disputed Land.
[7] In about 1986, Muir Sumner told Barry Sullivan that the dividing line between their two lots was immediately to the north of a clump of trees approximately half way between the two lots on the west side of the lots adjacent to Sandy Lane. He said that it ran east roughly along an irregular line of trees to the provincial park. He deposed that he derived this belief at the age of 12 from his father.
[8] Alfred Roos lives in Erie, Pennsylvania. He is 97 years old. The Sumners filed his affidavit sworn January 27, 2013. He deposed that he always understood that the dividing line between the two cottages was about half way between them, approximately in line with a row of trees. The Sullivans filed a second affidavit from Alfred Roos sworn August 12, 2013. He deposed that on his own initiative he attended at the location of the two cottages on August 6, 2013. He deposed in that affidavit that he did not know at any time the location of the lot line. His family never objected to the Sumner family using the Disputed Land and the Sumners did not object to his family using the Disputed Land.
The Shed
[9] Muir Sumner built a shed at the east end of the Sumner cottage on the north side. About 2’ of the southern portion of this shed is on the Sumner lot. The remainder is on the Disputed Land. He put in place a heavy rubber pathway from the cottage to the shed that is partially on the Disputed Land. He stated in his affidavit, sworn August 28, 2013, in paragraph 34 that he built the shed in “1997 or 1998”. Gord Bishop had a cottage at Long Point located about three cottages away from the Sumner lot. He sold his cottage in 2000. Prior to selling it he installed new windows on the cottage. In his affidavit sworn August 3, 2013, he attached an invoice dated June 19, 1998 for the purchase of the windows. After he installed the windows he ordered a shed which was installed on his property. He stated in his affidavit that Muir Sumner asked him where he had acquired the shed. He advised him and after this Muir Sumner had his shed built by a man whom he believes was the same contractor. This would have to have been after June 19, 1998.
[10] William Kociuk owns a cottage which is immediately to the north of the Sullivan cottage. He did renovations to his cottage. He had a party at the cottage on June 6, 1998 with the people and their families who had helped him with the renovations. A photograph, which he attached to an affidavit sworn October 1, 2013, which the Sullivans filed, shows the Bishop cottage. There is no shed on the Bishop lot. This means that Gord Bishop would have had to complete his shed after June 6, 1998 and that Muir Sumner would have had to build his shed after that date. This would mean that Muir Sumner constructed his shed partially on the Disputed Land after the expiration of the limitation period which is June 25, 1997 for the Sumner brothers acquiring that land by adverse possession. The Sumner brothers have presented no evidence to contradict this.
(The judgment continues with the remaining paragraphs exactly as in the source decision, maintaining the same wording, structure, and paragraph numbering through to paragraph [60], followed by the signature block and release information.)
Justice P.B. Hambly
Released: March 19, 2014
COURT FILE NO.: 67/13
DATE: 2014-03-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sean Maxwell Sumner, Scott Patrick Sumner
and Jeffrey Raymond Sumner
- and -
Barry Ross Sullivan and Elizabeth Anne Sullivan
REASONS FOR JUDGMENT
P.B. Hambly J.
Released: March 19, 2014