CITATION: Brooker v. Pepper et al; Pepper et al v. Brooker, 2015 ONSC 142
COURT FILE NO.: 62/13; 63/13 Sim
DATE: 2015 April 13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Douglas Brooker
Plaintiff
– and –
James Allan Pepper and Marion Ruth Pepper
Tyler Nicholson, for the Plaintiff
Paul Amey, for the Defendants
Defendants
BETWEEN:
James Allan Pepper and Marion Ruth Pepper
Plaintiffs
– and –
Douglas William Brooker
Paul Amey, for the Plaintiffs
Defendant
Tyler Nicholson, for the Defendant
HEARD: October 27, 28, 29, 30 & 31, 2014
Justice R. John Harper
Reasons for Judgment
Issues
[1] The Plaintiffs (Peppers) claim that they and their predecessors have title to Lots 2 and 3 of a property located on Avalon Lane in Norfolk County (The Avalon Properties). They have always treated the property line between lots 2 and 3 in a manner that should entitle them to a declaration of title by way of adverse possession. They claim that they have treated the property line and certain parts of Lot 4 in a manner that was open and notorious as their own for a minimum of 10 years prior to 2007. Lot 4 is owned by the Defendant (Brooker).
[2] Mr. Brooker has also brought a claim to seek a declaration of title in accordance with a survey he had obtained and to seek damages for the improper use of his property and for the loss of value and remedial action necessary to put his property back in its previous state.
Overview
[3] The claim by the Peppers is that James and his wife, Marion Pepper understood from the previous owner of Lot 2 and 3, Marion’s mother, that the lot line between Lots 3 and 4 (the Brooker property) followed a line as the property descended sharply down to the shore of Lake Erie from a pine tree at the top of the cliff to a willow tree at the bottom near the shoreline.
[4] With this knowledge of the lot line, the Peppers started a regular and lengthy process of dumping fill from the top of the steep slope on their property from the pine tree down to the willow tree near the Lake Erie shoreline. The purpose of dumping the fill was to change the grade of the slope in order to make the Lake Erie shoreline accessible. According to the Peppers, this dumping and grading took place over a 10 year period, before 2007. This is significant because once the properties in that area were registered into Land Titles System; they could no longer be obtained by adverse possession.
[5] In addition to the years of dumping, the Peppers constructed stairs and a break wall that was built in two sections and over different time periods in order to protect the property from shoreline erosion.
The Construction of a Road to the Lakeshore
[6] The Peppers owned and operated a transport haulage and heavy equipment business. This was a business that had been in their family for many years. Among other things, the business used dump trucks and graders. In the early 1970s, Marion’s mother and father owned Lots 3 and 4 of the Avalon Properties. Her father died in 1971. Marion’s sister, Marlene Simpson, and Marion would visit their mother on an almost daily basis from the date of their father’s death until Marion’s mother sold the property to Marion and James in 2002. James and Marion have owned this property since that point.
[7] Marion testified that before they started dumping fill on the property, the slope from the top by the pine tree down to the bottom by the willow tree was so steep that the shoreline was inaccessible. This was corroborated by James, Marion’s sister, Marlene, and every neighbour who testified at the trial. The only witness to state that this was not the case was Mr. Brooker. Every other witness described the topography of this property as being very steep and covered by bush.
[8] Both Marion and James Pepper testified that they started to dump fill onto the property on or about 1982. James stated that the dumping of fill was constant and continuous over the years. He stated that he would often supervise the dumping in order to ensure safety. He would also do much of the grading himself with their own heavy equipment.
[9] Marion located some corporate records for the years 2000 and 2002. These records were logs by the dump truck drivers indicating the fill they dumped on this property over this period of time.
[10] The Peppers testified that the road they put in from the top of the slope to the lake shore was in place and graded by July 2003. They were able to corroborate this claim with photographs of the roadway and its location and that it was in place for a family reunion they had on the property. At this reunion, guests were able to walk down to the lake shore using this roadway. The road was graded with a slope that was walkable and consisted of fill dirt and sand. The construction of the road was made possible by the dumping and grading that took place from 1982 until this reunion in 2003.
[11] The pictures of the roadway taken in 2003, which were filed in evidence, show the roadway from the top of the slope at a maple tree and descending down toward a willow tree close to the shoreline. From the period of time between 1982 and 2003, there were no survey stakes. This is according to the testimony of the Peppers and Marion’s sister, Marlene Simpson. All three stated that the lot line they followed in the dumping and grading was the line they had always been told represented the line between Lots 3 and 4 and that it was from the maple tree at the top to the willow tree at the bottom.
[12] In addition to the Peppers and extended family members who testified, numerous neighbours also testified on behalf of the Peppers. I found all of those witnesses to be straightforward and credible. None of the neighbours had any stake in the outcome of this trial. All of the witnesses were consistent on the material issues in this case. They all corroborated the dumping over many years from in or about 1982 until in or about 2003. They all corroborated the fact that the slope to the land was so steep that the shoreline was not accessible prior to the dumping and grading. They also corroborated the fact that the shoreline was accessible after this work was done in or about 2003.
[13] Mr. Brooker purchased Lot 4 in 1982. He did not dispute that the Peppers dumped fill on the property around the lot line. He did dispute that the dumping was extensive and consistent over the years. He was inconsistent in his answers in questioning verses his answers at the trial with respect to the degree of dumping on the property between 1987 and 1998. When confronted with the difference, he stated that his answers in questioning gave the clear impression that the dumping was not excessive. He stated, at that time, it “maybe consisted of two trucks in a year.” At trial, Mr. Brooker admitted that answer was “probably false” and the dumping was far more frequent as it changed the landscape of the slope significantly.
[14] Mr. Brooker stated that he would use the area of Lot 4 that was sloping to the lake. He stated that he would walk his dogs and play fetch with them by throwing sticks in that slope area. According to Mr. Brooker, both he and his dogs had no difficulty accessing the shoreline by walking down the slope. An activity he did constantly. However, in his pre-trial questioning, Mr. Brooker stated that he would always access the lake by going to Lot 5. When asked to explain that inconsistency, he stated that he was incorrect in his questioning and that the court should use his answers he just gave at the trial. No other witness described the slope area as accessible. I find that Mr. Brooker is not credible on this issue.
The Construction of a Break Wall
[15] The work done on the property and around the property line that the Peppers used did not stop at filling and grading a roadway. Two other major projects were undertaken by the Peppers. They built a large break wall in two sections. This wall protected the property from further and future land erosion. The construction of the walls started in 2004. According to Mr. Pepper, they did not want to lose one truck load of dirt that they had placed on the property to wave and storm erosion. Mr. Pepper stated that Lake Erie was very shallow and without a proper break wall, storms would cause waves that could whip up very rapidly and remove much of the soil as they hit the land and ebbed back to into the lake, taking the soil with it.
[16] In order to be able to construct the break wall, Mr. Pepper needed the permission of the Ministry of Natural Resources. Part of the permission process was the necessity to get neighbours’ consent. Mr. Pepper testified that he asked Mr. Brooker at least twice in 2004 to sign the document giving his consent. Mr. Brooker told him that he would think about it but never got back to him. According to Mr. Pepper, his wife filled out the form in part, and one day he approached Mr. Brooker when he saw him walking outside. Mr. Pepper asked him to sign the consent. According to Mr. Pepper, Mr. Brooker signed the consent. Mrs. Pepper confirmed that when Mr. Pepper came back in the home, he had Mr. Brooker’s signature on the consent. Mrs. Pepper stated she and her husband were relieved that they could finally get going on the wall.
[17] Mr. Brooker denied signing the consent. He flat out denied that it was his signature. He stated that he did not trust the Peppers and that he had merely signed a blank piece of paper. I do not accept his evidence in this regard. It simply does not make sense that he would not trust the Peppers and yet he would sign a blank paper and give it to Mr Pepper. I accept the version of events with respect to this consent as was testified to by James and Marion Pepper.
[18] After submitting all of the required documentation, Mr. Pepper set out to construct the break wall. This construction was no small task. The wall was 10 feet high. Three feet of blocks, at the bottom, went under water. They placed 100 tons of carbon stone with it spanning 120 feet along the shoreline. The first wall was complete in 2005. A second wall was constructed to the east of the first wall. This was to deal with storms that came out of the north east. This project was completed in or about 2008.
[19] Mr. Pepper produced invoices to enter into evidence. The first is from one of the construction companies that put in the wall dated October 28, 2005. A second invoice is dated June 2009. Another invoice for material for the sea wall was also submitted from Rona dated November 30, 2005.
[20] Mr. Brooker has never complained about any of the work being done since he bought Lot 4 in 1982. He once complained about certain steps that were placed on the top of the lot, before the slope. Those steps were moved to the bottom of the road that was constructed down to the lakeshore.
[21] In 2012, Mr. Brooker hired a surveyor and had the survey stakes placed into the ground. This survey was done after all of the work by the Peppers had been completed. It showed that some of the contracted work, including the graded road, the steps at the bottom of the slope and some of the sea wall was actually on Lot 4. According to the survey, the Peppers were mistaken about the lot line being from the maple tree down to the willow tree. From the period of time from Mr. Brooker purchasing Lot 4 until the trial, the Peppers never sought permission to construct any of the items referred to above except for the consent to build the sea wall that the Ministry of Natural Resources required of the Pepper’s neighbours.
[22] Mr. Brooker testified that he was the one who planted the willow tree sometime around 1997. That testimony goes against everyone else who testified in this case. It is also not consistent with the pictures that were filed showing the willow tree at the bottom of the slope. Some of the photos taken of the tree in 2013 show that the willow tree is approximately 50 feet or more in height. If I were to accept Mr. Brooker’s testimony that he planted that tree in or about the year 2000 and it was approximately 15 feet high, I would have to accept that that tree grew over 35 feet in 14 years. Although no evidence of the rate of willow tree growth was entered into evidence, I simply cannot accept Mr. Brooker’s testimony when taken together with all the other testimony. I accepted the evidence that the slope on lot 3 and 4, before dumping and grading, was too steep for anyone to walk on. I find it impossible to accept that Mr. Brooker, who is small in stature, could drag a 15 foot willow tree all the way to the bottom of the slope and plant that tree. I reject this version of events given by Mr. Brooker.
[23] Mr. Brooker also testified that he had stakes put in certain parts of the property on the slope and that there was a partial snow fence on the slope. He stated that the fence must have been knocked down and the stakes either removed or dirt dumped over the stakes. I reject this testimony. Had he placed stakes o any form of fence on the property line, he would have also complained that the massive dumping and other forms of construction improvements to the land were on his property long before he did in 2012.
Damages Claimed by Mr. Brooker
[24] Mr. Brooker called Mr. Ted Stockman as a witness and attempted to qualify him as an expert witness in construction costing. Mr. Stockman wrote a seven line note that was called a report. During the voir dire he testified that he had never been qualified as an expert witness prior to his appearance in court at the trial. He also stated that he was not engaged as an expert to do an analysis and report as to the cost of constructing some of the items of improvements on the land. Mr. Stockman was simply asked to give a quote on certain construction work with the expectation that he would get the job. I declined to qualify him as an expert. Not only did he not have sufficient special skills to assist the court, he could not be objective and neutral. His evidence has no relevancy to any of the material issues that are before this court.
The Law and Analysis Adverse Possession
[25] In the case of Teis v. Ancaster (Town), (1997) 1997 1688 (ON CA), CarswellOnt 2970, [1997] O.J. No. 3512, 103 O.A.C 4, 13 R.P.R. (3d) 55, 152 D.L.R. (4th) 304, 35 O.R. (3d) 216 the Ontario Court of Appeal commented at para.13:
The first requirement is actual possession for the ten-year period. To succeed, the acts of possession must by open, notorious, peaceful, adverse, exclusive, actual and continuous.
[26] And at para. 14:
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.
[27] At para. 25 Laskin J.A. stated:
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.
[28] At para 27 Laskin J.A. stated:
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.
[29] In Mueller v. Lee (2007) CarswellOnt 4194, [2007] O.J. No. 2543, Justice Perrel also commented on the law with respect to what “possession” means, he stated at para 15:
What is sufficient to establish possession will vary depending upon the nature of the property and the natural uses to which it can be put: Walker v. Russell, 1965 250 (ON SC), [1966] 1 O.R. 197 (H.C.J.); Laing v. Moran, 1951 74 (ON CA), [1952] O.R. 215 (C.A.)
[30] At para. 21, Justice Perrel comments of the cases of mutual mistake as follows:
In cases of mutual mistake, the intention to exclude requirement has a low threshold because where both the claimant and also the true owner mistakenly believe that the claimant owns the disputed land, the law acknowledges the settled expectations of the parties and infers that the claimant occupied the lands with the intention of excluding all others, including the true owners: Teis v. Ancaster, supra; Carrozzi v. Guo 2002 42513 (ON SC).
[31] I find that the Peppers occupied the lands in question in an open and notorious manner from at least 1982 until at least 2007. The Peppers were of the mistaken opinion that the property line from the top of Lot 3 at the maple tree ran down to the bottom of the property near the shoreline to the willow tree. This was the line that they accepted as coming from the previous owners that had always been talked about amongst family members. Armed with that knowledge, the Peppers started to use that property line as their own. They dumped fill for many years commencing in 1982 in order to change the grading of a steep slope from the top of the property at the maple tree down to the willow tree in order to make the shoreline accessible.
[32] When Mr. Brooker bought his property he could see the dump trucks dumping the dirt from the same spot over a number of years. He also saw the graders in action. It was obvious for all to see that the grade of the slope had changed significantly from 1982 until 2003. That was the point that the Peppers had a family reunion and the property was now accessible by use of the road that had been constructed by the Peppers over the years as a result of the fill dumping and grading done by the Peppers. At no time did Mr. Brooker complain to the Peppers that they were conducting all of this activity on his land.
[33] The Peppers continued to use the property that was later discovered to be on Lot 4. They constructed a sea wall and stairs. The sea wall was an extensive project that started in 2000. This project alone increased the value of the property by preventing significant future land erosion. At no time did Mr. Brooker complain to the Peppers that they were constructing part of the sea wall and stairs on his property.
[34] I find that Mr. Brooker’s failure to say anything to the Peppers over far in excess of the ten year period allows me to draw the inference that he was mistaken with respect to the lot lines of Lot 3 and Lot 4. I find that this mutual mistake allows me to draw the inference that the Peppers intended to occupy parts of Lot 4 in which they built the sea wall and stairs with the intention to exclude all others, including the owner Mr. Brooker. As a result of my findings, I am satisfied that the Peppers have obtained title to the parts of lot 4 that are outlined in yellow in the survey filed by the Peppers as Exhibit 1. This part of Lot 4 represents the area in which all of the improvements that were made by the Peppers are situated. The Peppers are to obtain a proper survey to provide a metes and bounds description that will allow for the appropriate order to be drafted and registered on title.
Damages
[35] As a result of my findings of adverse possession, I dismiss Mr. Brooker’s claim for damages. In any event, Mr. Brooker testified that he would not remove the constructed items that he claimed encroached on his property, except for the stairs.
[36] Mr. Brooker called a witness in order to attempt to establish the costs of removing the parts of the constructed items on his property. I declined to qualify this witness as he did not have any special skills that would allow for opinion evidence. The witness had never been retained to do a report. This witness was someone who was asked to give a quote with the expectations of him getting a contract to do certain work. He was not a neutral witness.
[37] With respect to Mr. Brooker’s claim for damages relating to the loss of his property, I also reject this claim given my findings relative to adverse possession. In any event, if I am wrong on the adverse possession claim, I do not accept the opinion of the Real Estate appraiser, Mr. Jugovic called by Mr. Brooker. The Peppers called their own real estate appraiser, Mr. Vandenbussche. I qualified both as experts in order to give their opinions as to value.
[38] I accept the opinions of value expressed by Mr. Vandenbussche. I am of the view that his opinions are based on a proper analysis of the subject properties. He used comparables and adjustments that were more realistic than those used by Mr. Jugovic. The latter used sales comparables that were not truly comparable to the subject property. Some of his comparable properties were condominium projects that bare no similarities to the subject property. Their use, in my view only artificially and improperly inflates the values. I agree with Mr. Vandenbussche that they should not have been used and give a distorted view of value of the subject property. I also agree that Mr. Jugovic’s analysis did not consider some of the most important adjustments that should have been utilized such as locational demand and saleability, different zoning and permitted or restricted uses. Mr. Jugovic did not take into consideration that there are portions of the land that are substantially different in a non-usable area. Mr. Vandenbussche used comparables in the same area as the subject property (Avalon Properties). Mr. Vandenbussche also, more accurately, reflected the encroached square footage area under consideration. The difference is .079 (3,462 square feet) for Mr. Vandenbussche and .16 acres (6,970 square feet) for Mr. Jugovic.
[39] Mr. Vandenbussche rightly pointed out and considered the fact that above the sloped bank, the property was usable and below it was not. This had to be adjusted for. He also considered the highest and best use. This was not part of the analysis of Mr. Jugovic. In addition the property is subject to the Long Point Conservation Authority and there are heavy restrictions on building or alterations.
[40] Mr. Vandenbussche gave no value to the encroached area and I agree with this assessment.
[41] Given my findings relative to the adverse possession, it is not necessary for me to assess any damages to the Peppers for the constricted items of the encroached areas.
Harper, J.
Released: April 13, 2015
CITATION: Brooker v. Pepper et al; Pepper et al v. Brooker, 2015 ONSC 142
COURT FILE NO.: 62/13; 63/13 Sim
DATE: 2015 April 13
Douglas Brooker
Plaintiff
– and –
James Allan Pepper and Marion Ruth Pepper
Defendants
AND:
BETWEEN:
James Allan Pepper and Marion Ruth Pepper
Plaintiffs
– and –
Douglas William Brooker
Defendant
Released: April 13, 2015