COURT FILE NO.: 1822/16
DATE: 20180803
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lois Elaine Gauld and James Clifford Gauld
Applicants
– and –
D’Arcy Hugh McFalls and Leslie Ellen McFalls
Respondents
P. Morrissey, for the Applicants
B. Fick, for the Respondents
HEARD: December 4, 2017
Templeton J.
[1] In 1946, John West ('Mr. West') and George Winter ('Mr. Winter') purchased an undeveloped plot of land located along the shore of Lake Huron from Knowlson Hueston ('Mr. Hueston'). Mr. West and Mr. Winter were both business partners and brothers-in-law. Mr. West's younger sister was Mr. Winter's wife.
[2] The plot measured approximately 100 feet wide from north to south along the beach front on the west side. The eastern boundary of the plot also measured approximately 100 feet wide from north to south and was adjacent to a municipal road. A sand dune ran in an east/west direction along the length of and close to the center of the property.
[3] Over the course of the following year, Mr. West and Mr. Winter built two cottages on their plot, one on each side of the sand dune. Both cottages were designed to face the beach. The back of their cottages faced the road.
[4] Mr. Winter and Mr. West carved out and levelled areas of this dune to create the spaces needed to build their cottages but they left a berm in place. Mr. West's cottage was built on the northerly side of the property and Mr. Winter's cottage was built to the south. The berm formed a natural barrier between the two cottages and provided privacy for each of their families.
[5] Mr. Winter and Mr. West also created a driveway running in a westerly direction from the municipal road. The driveway was used by Mr. Winter and Mr. West to access their property and their cottages.
[6] Between 1946 and 1950, their plot of land and contiguous lands which had formed the larger tract of land owned by Mr. Hueston were incorporated into a Plan of Division identified as Plan 14 Ashfield. This large tract of land (including Mr. West and Mr. Winter's plot) was surveyed between August 1949 and August 1950. The Plan was signed on August 26, 1950 and entered and registered on November 10, 1950. A copy of Plan 14 Ashfield was attached to the Affidavit of Lois Gauld and marked Exhibit 'C'.
[7] Plan 14 Ashfield had the effect of creating a subdivision out of the original large tract of land. More significantly, the Plan had the effect of dividing the plot of land purchased by Mr. Winter and Mr. West into two separate adjacent lots which are almost equal in size and area and identified as Lot 55 to the north and Lot 54 to the south.
[8] On October 26, 1950, Mr. Hueston signed a deed in favour of Mr. West for Lot 55 which was 50 feet wide (north/south). On the same day, Mr. Hueston further signed a deed in favour of Mr. Winter for Lot 54. Each Lot was 50 feet wide (north/south).
[9] Both Mr. West's and Mr. Winter's cottages had been completed for approximately three years prior to this event and the assignment of the Lots with respect to ownership reflected the location of their cottages within the original parcel of land they had purchased in 1946.
[10] The Deeds were not registered until April 12, 1951. The reason for the delay is not entirely clear.
[11] By reason of the formal survey, it became clear that the driveway used by both Mr. Winter and Mr. West was located on Mr. Winter's property (Lot 54).
[12] In July 1951, a hydro pole was installed at the eastern end of the berm. The pole allowed for electrical services to both cottages.
[13] In addition, Mr. West installed a gate/fence extending from the southwesterly corner of his cottage to the berm. The fence prevented sand from accumulating in the area between the side of the cottage and the berm.
[14] Over the next number of years, Mr. Winter and Mr. West and their families visited and socialized at their respective cottages.
[15] On September 30, 1957, Mr. Winter died and thereafter Mrs. Winter started to rent the cottage out.
[16] The driveway continued to be the only driveway in existence and used for vehicular access to both cottages.
[17] In 1960, Mr. West built an extension onto his cottage. The extension was added to the south side of his cottage. To achieve this, he removed part of the north side of the berm and installed a steel retaining wall. He also installed an underground septic system which was wholly located in his Lot 55 but for an overflow box extending south onto Part 2 of Lot 54.
[18] In 1967, Gordon McFalls ('Mr. McFalls') bought Lot 54 from Mr. Winter's Estate.
[19] In 1968, Mr. West's wife died and on September 1, 1981, Mr. West died.
[20] On June 1, 1982, Lois Gauld (Mr. West's daughter) and her husband ('the Gaulds') assumed title to the property.
[21] In 1984, Mr. McFalls built a cottage/garage on the southeasterly portion of his Lot 54. He also leveled out the original driveway and extended it north.
[22] In 1985, he replaced the hydro pole between the two cottages to upgrade the electrical service to his cottage. The new pole was placed in the same location as the earlier pole.
[23] In 1989, Mr. McFalls built a deck on the north side of his cottage and encroached into the berm. On completion of the extension, he rebuilt the berm and planted more juniper bushes which re-established privacy and secured the integrity of the berm.
[24] In 1992, he built a boathouse and planted some trees in the westerly area of his Lot 54.
[25] On September 18, 2000, both Lots 54 and 55 were converted into Land Titles.
[26] On August 12, 2008, Mrs. McFalls died.
[27] In November 2008, the Gaulds installed a new underground septic system and created a new driveway in the north-eastern part of their Lot 55.
[28] In January 2012, Mr. McFalls died. Ownership of the property was ultimately transferred to Mr. McFall's son and daughter-in-law, D'Arcy and Leslie McFalls ('the McFalls') in 2014. The McFalls are the Respondents in this action.
[29] In the meantime, Plan 14 Ashfield became formally known and identified as Plan 580.
[30] In or about 2014, the McFalls arranged for a surveyor to attend and place boundary stakes on Lot 54. The stakes indicated to the McFalls that the lot line between Lot 54 and Lot 55 is situated approximately nine (9) feet north of the line the Gaulds believed to be the property line. A plan of survey of this Lot was completed by D. Culbert Ltd. ('the Culbert survey') on October 20, 2016 and is attached as Exhibit 'F' to D'Arcy McFalls' Affidavit.
[31] According to the Culbert survey, the lot line dividing Lots 55 and 54 runs through a portion of the Gaulds' septic system and through the entire south side of their cottage.
[32] The boundaries for the McFalls' Lot 54 in the Culbert survey follow Plan 14 Ashfield.
[33] It is also noted that the lot line dividing Lot 54 (the McFalls' Lot) and the next adjacent lot to the south, Lot 53, runs through the south side of the McFalls cottage. In other words, according to the Culbert survey, both the West and Winter cottages encroach on the adjacent lots to the south.
[34] The Gaulds arranged to have a draft survey completed of their property. A plan of survey was which was attached to Lois Gauld's Affidavit and marked Exhibit "K", was completed by Callon Dietz surveyors on October 29, 2015.
[35] This survey ('the Callon Dietz survey') has divided Lots 54 and 55 into seven Parts. Part 1 is contained entirely within and consist of all of Lot 55; Parts 2, 3, 4 and 5 form the disputed land that is located between the two cottages and are located entirely within Lot 54; Part 6 is contained entirely within Lot 54; and, Part 7 is contained entirely within Lot 54.
[36] Parts 2 through to and including Part 5 run in an east/westerly direction from the road to the beach. Part 2 consists of trees and a bush, plantings, a hedge, a maple tree and the tail end of the Gaulds' septic bed. Part 6 is the original driveway which is adjacent to and south of Part 2. The east end of both of these Parts join the road that runs east and west at the back of the cottages.
[37] The hydro pole that services the cottages is located near the southeast corner of Part 3. Part 3 also includes the berm and some plantings. Part 4 and Part 5 respectively run further west of Part 3 and lead onto the beach.
[38] There is no evidence that the Culbert survey and the Callon Dietz survey differ or are incongruous in any respect.
The Dispute
[39] The Gaulds seek a declaration, inter alia, that:
(a) they are the owners in fee simple, as joint tenants, of Parts 2 through 5 of Lot 54, Registered Plan 580; and
(b) as the owners in fee simple and joint tenants of all of Lot 55 and Part of Lot 54 (Parts 2 through 5), they hold a perpetual easement in, on, over, under and above Part 6 of Lot 54 for unrestricted pedestrian and vehicular access and for installation, maintenance, repair and replacement of any utility which may service the Dominant Tenement.
[40] It is the position of the McFalls that the Gaulds have no right, title or interest in any of Parts 2, 3, 4, 5 and 6 of Lot 54 hereinafter referred to as “the disputed land".
The Evidence
[41] In support of their respective positions, the parties have filed Affidavit evidence, copies of deeds, surveys, plans and photographs.
(a) The Evidence of the Gaulds
[42] As I have indicated above, Lois Gauld is Mr. West's daughter and Mr. Winter's niece. She was 19 years old when her father and uncle bought the plot of land in 1946.
[43] The following is a summary of the evidence of the Gaulds:
• as the eldest child, she was present and aware of the discussions regarding the purchase of property, the construction of the cottages and the boundaries;
• the original hydro pole was installed in line with the agreed to boundary and became a reference point for any future property maintenance and activities. A maple tree and a double birch tree located on the Lot line described on the Plan are natural trees and were not planted by any of the owners of the cottages;
• her father and uncle installed one communal or shared driveway on the southeast side of the property which was used to access both cottages;
• when the 100-foot plot of land was originally occupied by Mr. West and Mr. Winter, the currently existing berm located between the two cottages was part of a much larger sand dune. When Mr. West decided to build his cottage, he levelled most of the sand dune to create a level building area and left a portion of the berm that exists to date;
• she does not believe that her father or uncle had knowledge of the details or dimensions of their Lots on the Plan which describes the original plot as being divided as follows:
(a) Lot 54: 50 feet wide on the west boundary (the beach); 50.1 feet wide on the east boundary (the road); and, 260.4 feet long;
(b) Lot 55: 50 feet wide on the west boundary (the beach); 50.1 feet wide on the east boundary (the road); and, 264 feet long.
• she does not recall her father discussing any discrepancies between the description in the Deeds that he and her uncle had received and their actual occupation of the property;
• she was not aware of any discrepancy between the boundaries determined by the occupation, use and enjoyment of the land by the Gauld family as well as the natural division formed by the berm/sand dune and the description in the Deeds until this dispute arose;
• the addition to the Gauld cottage and the creation of a septic system occurred in 1960 to increase the number of people they could accommodate on an overnight basis;
• a portion of the berm that was left when the Gauld cottage was first built was removed to accommodate construction of the extension and future maintenance. A retaining wall was installed at the same time;
• Gordon and Margaret McFalls were well known to the West/Gauld family when they purchased the Winter cottage. Mr. McFalls and Mr. Gauld had worked together and they had rented the cottage from the Wests a number of times before they purchased it;
• Gordon and Margaret McFalls and the Gaulds had a good relationship such that had there been an issue with the boundary, it would have been raised and discussed openly but no such discussion ever occurred;
• when Mr. McFalls built the boathouse, the sand that was removed to allow construction was pushed westward onto the beach and into the lake;
• after the McFalls acquired ownership of Lot 54, survey stakes were placed on the property in line with the lot boundaries as described on Plan 580. One of these stakes was installed on top of septic system, she and her husband had installed;
• during a meeting with the McFalls on July 27, 2015, she learned that they were of the view that they owned the entirety of Lot 54 as marked on the Plan;
• Part 3 not only contains a portion of the berm and some plantings but also contains the lines for propane service, telephone service and a water line drain for the Gaulds' cottage;
• over the years since 1946, Mr. West and the Gaulds have (a) planted trees, flowers and other vegetation in the disputed lands; (b) erected and maintained a gate (which was later removed) and posts over the shared driveway; (c) hung laundry out over the disputed lands; (d) installed a telephone line, a water system drain line and shut off, and a septic system underneath the disputed lands, (e) installed fiberglass rods on the land where the septic system is located to prevent anyone driving over it; (f) installed and maintained propane tanks on the disputed lands; (g) built an extension onto their cottage that extends into the disputed lands; (h) erected and maintained a retaining wall located within the disputed lands; (i) weeded and maintained the disputed lands and conducted controlled burnings of wild grass; (j) removed diseased or dead trees from the disputed land; and, (k) driven over and parked on the disputed lands; (l) installed railway ties across the full width of Part 3 where they remained until removal in 1960 to allow the septic system to be installed;
• at no time prior to the acquisition of Lot 54 by the McFalls had anyone ever objected to their occupation, use, maintenance and enjoyment of the disputed land;
• at no time, prior to acquisition of Lot 54 by the McFalls did any of the owners of Lot 54 take the position that they owned the disputed land or disagreed that the Wests and then the Gaulds owned the disputed land;
• the prior owners of Lot 54 did not maintain or use the disputed land save and except the shared driveway located in Part 6;
• out of concern for damage that may be caused to the septic bed by vehicles driven over the top, the Gaulds constructed another entrance to their property in 2008 at the northern edge of Lot 55;
• after the Culbert survey was completed, the McFalls:
(a) built a raised garden bed on Part 3 over the Gaulds' septic system. The Gaulds had previously indicated to the McFalls where their system was located;
(b) began to kill and remove vegetation and a portion of a hedge that had been planted by Mrs. Gauld and her father in Part 2;
(c) began to dispose of yard waste in Part 2;
(d) hung bird houses on trees Mr. Gauld had planted in Part 3;
(e) installed or caused to be installed, white wooden survey stakes and a permanent iron bar survey stake directly over the Gaulds' septic system. The stakes create a hazard and an obstruction in the Gaulds' ability to mow the lawn and maintain their property;
(f) began to park their cars and boats on the shared driveway and lawn, preventing the Gaulds' use of areas located in Parts 6 and 2;
(g) began to fill in the swale/depression along the northern edge of the shared driveway and eliminated the visually obvious north edge of the driveway;
(h) began to water the shared driveway and portions of the adjacent land such that the Gaulds were unable to access these areas without getting wet.
• the occupation, use and enjoyment of the disputed lands by the West/Gauld family since 1946 was continuous, uninterrupted, open, unchanged and peaceful until 2008 when the shared driveway was no longer used by the family for access to their cottage by car. Thereafter the shared driveway was used by the family for access to their cottage by foot and vehicular traffic such as service and delivery vehicles. This change was based on their concern of risk of damage to the new septic system. The grass was not established in the area of this system even as of the end of June 2009;
• permission for the use of the disputed land by the West/Gauld families was neither sought nor given since it was always understood that as the West/Gauld families had the sole right to use all of the disputed land and the families who owned/occupied the cottage on Lot 54 had the right to the use of Part 6 only;
• aside from the shared use of Part 6, the occupation, use and enjoyment of the disputed land has been exclusive to the West/Gauld families; and
• Mr. McFalls did not block access to their cottage when he and/or the Gaulds were there.
(b) The Evidence of the McFalls
[44] D'Arcy McFalls has deposed in summary as follows:
• the only purpose of the centre berm today is to provide some privacy between the cottages;
• his parents purchased their cottage from the Winter Estate in August 1997. The Deed declared that Mr. Winter was seized and possess of the lands described therein at the time of his death. The lands were described as "being composed of Lot #54 according to Registered Plan #14 of the Township of Ashfield...";
• at the time of the purchase, there was a wooden two rail fence running east/west from the road to the east wall of their cottage on the south boundary of Lot 54. Over time, the railings were removed but some of the fence posts remained until 1996 and one remains to date. Mr. McFalls measured 50 feet north from this fence to determine the north boundary of his property;
• in 1985, his father upgraded the electrical services to his cottage to accommodate the new guest cottage had he built that same year. The new hydro pole was placed in the same location as the prior pole because it was more or less equidistant between the West/Gauld cottage and his own and there was no reason to move it. Mr. McFalls paid for this upgrade;
• almost directly north of the existing fence post is a maple tree which sits in Part 2 on the north boundary of Lot 54. A double birch tree also sits on the registered northern property line in Part 5;
• his parents paid municipal taxes based on 50 feet of road frontage with respect to Lot 54;
• he tried to obtain a tax reduction for that part of his land to the extent that the Gauld cottage encroached into his Lot in Part 3;
• he and his father cut the grass at the back of both cottages from time to time including the grass located in Parts 2 and 3. Similarly, the Gaulds would cut the grass behind the McFalls cottage. Property lines were not discussed or of concern at the time;
• Part 2 is heavily treed and filled with scrub. It served as a screen from the roadway. Both the Gaulds and the McFalls threw grass clippings into this area and in Part 1. The area did not require maintenance although he occasionally culled it out along with his father;
• the centre berm located in Parts 3 and 4 acts as a buffer between the two cottages. It is relatively high, covered with ivy and requires almost no maintenance. The berm is somewhat difficult to climb over. The north side which faces the Gauld cottage is not visible from the deck of the McFalls' cottage;
• when his father added a deck onto the cottage, a backhoe placed some of the excavated material on top of the berm which made it even higher and enhanced the privacy afforded to both cottages; Mr. McFalls also planted Junipers on top of the berm which the McFalls continue to maintain;
• they did not mind that the Gaulds placed their canoes on the north side of the berm as they did not interfere with the McFalls' use of the berm;
• the lands comprising part of Part 3, Part 4 and Part 5 have not been and are not used for much other than walking to the beach from the cottages. No maintenance of these areas is required;
• the Gaulds have failed to produce a copy of the submission they made concerning the location and installment of their septic system in 2008. It is one the submission that the authority relied for granting approval and it is in the submission that the details as to the size and location of the septic system are contained;
• the installation of the new septic system was done in secret while the McFalls family was away and grieving their loss of Mrs. McFalls;
• after the survey was completed and the stakes installed, he told James Gauld Jr. that nothing would change in the sense that the Gaulds would not have to move their cottage. They did not discuss any claims with respect to property at that time;
• since 2008, the Gaulds have not driven over or parked in Part 2 due to the location of their septic system. Their need for and use of the former shared driveway has therefore ended; and
• service vehicles are not able to drive over or park in Part 2 because of the Gauld's septic system. Instead, service and/or delivery personnel seeking access to the Gaulds' property park on the road and transport their hoses and equipment onto the Gaulds' property by foot.
The Law and Analysis
[45] Unfortunately, the Affidavits filed by the parties in support of their respective positions are replete with hearsay and/or opinion, conjecture or supposition. This is not surprising given the historical context of the events referred to and the death of the significant persons involved in the development of the two Lots during the early years.
[46] I am not prepared, however, to rely on either (a) the hearsay evidence, the reliability of which is diminished by risk of bias based on the vested interest each of Lois Gauld and D'Arcy McFalls has in the outcome of this litigation; or, (b) opinions and suppositions as to what Mr. West and Mr. Winter must have known or ought to have known and/or what they asked or what they didn't ask at the time of their original purchase or on receipt of their respective Deeds.
[47] The fact of the matter is that one extended family built two cottages on one plot of land which the extended family owned and almost four years later this plot was divided on paper by the administration responsible for land development as part of a project to create a subdivision with the tract of land in which their plot was located. The Winter/West plot was then legally divided without regard to the construction on, the use of or the topography of the land at the time.
[48] The original Deeds dated October 26, 1950 which conveyed the land from the Huestons to each of Mr. Winter and Mr. West respectively; clearly refer to Lot # 54 and Lot # 55 according to registered plan #14 of the Township of Ashfield.
[49] The subsequent Deed dated June 9, 1967 from Mr. Winter's Estate to Mr. McFalls reflects the identical wording. And the next Deed dated May 25, 1982 from Mr. West to the Gaulds reflects the identical wording.
[50] Registered Plan No. 14 of the Township of Ashfield is now known as Plan 580. The two Lots in Plan 580 are defined as adjacent rectangular shaped lots virtually identical in size and shape to each other and to all of the other lots in the subdivision along the shoreline. They follow north and south boundary lines from the road at the eastern extremity to the waterfront at the western extremity. The north and south boundary lines of each Lot in the subdivision are straight and run parallel to each other.
[51] In my view, the evidence is clear therefore that whether or not Mr. Winter and Mr. West
(a) intended that their property be divided equally between them in respect of square footage when they purchased the plot;
(b) knew about the imposition of straight boundary lines between their lots by the local administration in the course of developing the Registered Plan regardless of the construction that had already taken place;
(c) acceded to the division of their once whole plot into the two equal parts as provided for on the Registered Plan; and/or
(d) intended to adhere to the division of their property as provided for in the Registered Plan,
Registered Plan No. 14 of the Township of Ashfield itself provided for the division of this property into two equal parts without deference to the natural topography in the area or the buildings that had been erected well prior to the creation of the Plan.
[52] It is also entirely clear, based on the conduct of both Mr. Winter and Mr. West that neither of them considered themselves to be bound thereafter by technicality with respect to the location of their cottages. They did not move or change the fixtures they had installed on their land. If they had originally intended to divide the property equally into north and south lots, it is clear that Mr. West encroached on his brother-in-law's half when he built his cottage. And Mr. Winter encroached on the lot to his south when he built his cottage.
[53] Whether or not this fact bothered them or they were even aware of it is unknown. It is also clear from the numerous photographs filed in this case that these men were close family members and colleagues whose wives and children socialized and shared time together. It is reasonable to infer that the emotional ties they felt (also demonstrated in the numerous photographs) would not have required mathematical or engineering certainty at the time as to the division of the land they were occupying.
[54] But time and change in ownership and generations of occupants take their toll on understandings and co-operation with respect to property. Even vacation property. Improvements and changes have to be made to accommodate repairs, replacement and/or expansion of the buildings and recreational areas. Hence the need for mathematical certainty in the registered Deeds with respect to the lands in issue. The description of the Lots in the Deeds provides that mathematical certainty.
[55] On the one hand therefore, the answer to the issues identified above is self-evident.
[56] But that is not the end of the analysis because over the years, the law has also developed concepts such as "adverse possession" and "prescriptive easement".
[57] In the factual circumstances of this case, it is to these concepts I must turn in order to determine if there is any outcome as to ownership that differs from the description set out in the Deeds.
[58] On the basis of these legal concepts, the Gaulds argue that from the outset, all of the disputed land has been and continues to be part of Lot 55, the West/Gauld property.
[59] I must indicate, however, that I have a great deal of difficulty accepting Lois Gauld's assertion that her father intended to deprive his brother-in-law of ownership of all of the disputed lands.
[60] Just as the assertion may be correct that Mr. West and Mr. Winters did not have knowledge of or acquiesce to the black and white rigid lines of property division on the Plan given their common usage of the property as demonstrated in the photographs, so too do these same photographs support the proposition that in the context of their warm and collegial relationship, Mr. West would probably not have sought to deprive Mr. Winters of substantially less than one-half of the property they had purchased together which is the ultimate result if I find that the West/Gauld property includes all of the disputed land.
[61] Interestingly, the parties have made submissions with respect to the application of the law to the facts and in doing so appear to have essentially treated the disputed lands as an indivisible whole. In my view, the appropriate approach is to consider each Part of the disputed land individually as described in the Callon Dietz survey because it is clear that the relevant facts with respect to the legal concept under consideration vary depending on the Part under consideration.
[62] For this reason, I rely on the Callon Dietz survey for the purpose of analysis and reaching a conclusion in this litigation.
(a) Adverse Possession
[63] The law is well settled that a party claiming possessory title to lands owned by another person must satisfy a three-part test:
(a) that there was actual possession for the statutory period of time (ten years). The actual possession must be open (not clandestine), notorious (well-known), peaceful (without protest), adverse (without permission of the owner), actual and continuous. "Open and notorious" shows the other that the claimant is using the property as an owner might. For some types of property, intermittent use such as seasonal use can establish the element of continuity; and
(b) that the possession was with the intention of excluding the true owner throughout the statutory period. The claimant intended to exclude the true owner from such use as he/she may make of the property. In the case of honest mistake as to the true boundary, an inference may be drawn that the occupier is in possession of the land with the intention of excluding all others including the legal owners. However, even in cases of mutual mistake, effective exclusion of the true owner is required but the intention to exclude has a low threshold in cases where the claimant and the true owner mistakenly believed that the claimant owned the disputed land. The threshold is high where the clamant is a mere trespasser with designs of becoming the owner of lands that he or she knows belong to another. Where a trespasser tries to dispossess the true owner, there is a further requirement that the possession of the claimant must be inconsistent with the intended use of the true owner; and
(c) that there was effective exclusion of the true owner for the statutory period. The true owner must be ousted or out of possession. See Sumner v. Sullivan, 2014 ONSC 176; Sumner v. Sullivan 2014 ONCA 869
[64] If the claim fails in any one of these respects, the claim fails.
[65] Time starts to run against the owner only from the last date when all of them are satisfied.
[66] Pursuant to the provisions of sections 4, 5(1) and 15 of the Real Property Limitations Act, R.S.O. 1990, c. L15, a person can acquire adverse title to a property and extinguish the registered owner's title to the property after exercising control or dominion over the property for a period of ten years.
[67] In Tasker v. Badgerow, 2007 CanLII 23362, Justice Murray wrote, "The Real Property Limitations Act has been described as one of extinctive, not acquisitive prescription. The Act imposes an obligation on the holders of legal title to enforce their rights within 10 years after the possession of their property begins, or, in the alternative, prevents the title holders from asserting such a claim, or defending against an adverse possessor, after that 10 years has elapsed".
[68] The Land Titles Act R.S.O. 1990, C. L5 preserves claims for ownership of land by adverse possession perfected before land was registered in the system but prohibits such claims based on events that took place after the land was registered in the system.
[69] In his decision in Sumner v. Sullivan, 2014 ONSC 1706, Justice Hambly noted that there are two categories of cases in which claimants have established ownership of land by adverse possession,
In one category, the claimant knew that the land he was occupying was owned by another person. In the second category, both the claimant and the true owner believed that the claimant owned the land. It is more difficult for the claimant to establish title by adverse possession in the first category than in the second.
[70] Justice Hambly goes on to write,
In cases where the claimant has been successful in establishing ownership by adverse possession to land that he believed mistakenly belonged to him he has done clear acts of ownership on the Disputed Land and the true owner was excluded from the land. In this case the acts on which the Sumners rely to support their ownership of the land – placing bird houses on the trees, raking the sand to smooth off the land, playing games like horseshoes on the land and removing the stakes for the pits so that others using the land would not be at risk of injury, using the land for overflow parking, placing a bike rack on the land, placing a temporary umbrella clothes line on the land, socializing with their friends and family – are not in the context of the local culture where the Disputed Land was located unequivocal acts of ownership. They did not restrict the Sullivans from use of what turned out to be their land for the purpose that they wanted to use it – namely for occasional overflow parking and as a pathway to the beach.
The construction of the shed was a clear act of ownership on the Disputed Land, at least for the portion of the Disputed Land which it covers.
[71] In assessing the Gaulds' claim to the property in question, I am entitled to take the occupation of the property by previous owners if possession of the property by the Gaulds is of the same nature and substance as that of predecessors in title. See Tasker v. Badgerow, 2007 CanLII 23362
(i) Part 1
[72] It is clear from the evidence but is worth the effort of confirmation in the context of this litigation, that Part 1 on the Callon Dietz survey is wholly within and comprises the whole of Lot 55. It is owned by the Gaulds.
(ii) Part 7
[73] It is further clear from the evidence but is worth the effort of confirmation in the context of this litigation, that Part 7 on the Callon Dietz survey is wholly within and comprises part of Lot 54. It is owned by the McFalls.
(iii) Part 2
[74] The evidence establishes that Part 2 on the Callon Dietz survey is located wholly within Lot 54.
[75] Part 2 has always had and continues to have a number of uses. Firstly, it allowed and continues to allow the West/Gauld families access to their cottage initially by car and continuously by foot. Secondly, it provided and continues to provide privacy from the roadway to both cottages. Finally, it contained and continues to contain part of the septic system for the Gauld cottage.
[76] It is the Gaulds' evidence that the West/Gauld family members have used the entirety of Part 2 as their own. Photographs showing groups of their friends and family members dating back to 1944, 1961 and 1963 were taken on Part 2.
[77] The Wests' first septic system was installed in 1960. The tank was located in Lot 55 but from 1960 until 2008, the overflow box was located in Part 2. It was marked off by cedar logs to prevent cars from driving over it. Photographs have been filed showing the location of the original septic tank that was uncovered in 2002, 2004 and 2006 for maintenance and the cedar logs that were in place originally as well as the fibreglass poles used after the installation of the new system in 2008. As indicated, the new system was installed in 2008 in the same location as the previous system and continues to be buried in part of Part 2.
[78] After construction of the 1960 addition onto the West cottage, the ground was graded with top soil and grass seed. However, the septic system remained in place. The lawn that was installed extends over Part 2 to the northern edge of the driveway in Part 6.
[79] Between 1946 and 2000 (up to 2008), vehicles, pedestrians and bicycles crossed Part 2 to access the West/Gauld cottage.
[80] The underground telephone and cable lines for the Gauld cottage run beneath Part 2.
[81] There is no evidence of objection from either the Winter families or the McFalls families to this use of Part 2 by the Gaulds until in or about 2014.
[82] On the basis of all of this and the other evidence filed in relation to Part 2, I am satisfied that the first part of the three-prong test for adverse possession as set out above has been met. I am satisfied that the Gaulds had actual possession of Part 2 for the statutory period of ten years and that their possession was open, known to the McFalls, peaceful, adverse, actual and continuous.
[83] Based on the evidence of the existence and location of visible markers, it is reasonable to infer and I also find that the Mr. McFalls was aware of the existence and location of the septic system servicing the Gauld cottage.
[84] I am therefore also satisfied that the Gaulds have met their onus on a balance of probabilities with respect to the second factor to be considered, namely, that their possession of Part 2 throughout the statutory period was with the intention of excluding the true owner, the Winters/McFalls, to the extent of the land contained in Part 2 where the septic system was and is located. The evidence is clear that the Gaulds' possession of the property was and is of the same nature and substance as that of their predecessors in title, namely, Mr. West. The current septic system services only the Gauld cottage. The only evidence before me is that the current septic system is in the same as the location as the previous system. The Winter and McFalls families were aware that the septic system existed and were aware of its general location. As I have indicated, it had been marked on the surface to prevent damage.
[85] But there is a dearth of credible or reliable evidence that during the course of their possession of Part 2, the West/Gauld family intended to exclude the Winter/McFalls families from such use as they could make of Part 2 that was not occupied by the septic system. There is no evidence before me that the system occupies all of Part 2.
[86] It is noted that even in cases of mutual mistake, effective exclusion of the Winter/McFalls family is required but the West/Gauld intention to exclude this family is subject to a low threshold if the Gaulds and the McFalls mistakenly believed that the Gaulds owned the disputed land.
[87] In this case, there is no reliable evidence before me as to what the Winters and/or Mr. McFalls believed other than an indication that Mr. McFalls was conscious of a property line.
[88] The wooded area in Part 2 provided privacy screening from road traffic. It was a mutually beneficial area of land due to the vegetation.
[89] It is clear that for a long time, Part 2 offered the West and the Gauld families their only way of access to their cottage. But their use of this Part for access purposes, their care of this Part for privacy and esthetic purposes did not and does not exclude the McFalls activity, presence or use of this land save and except that area where the septic system was located. The McFalls were and have not been ousted from possession of that portion of Part 2 that is not occupied by the septic system.
[90] For these reasons, I find that the Gaulds have not met the onus with respect to the third prong of the test with respect to the entirety of Part 2. On the evidence before me, I agree with the submissions of the McFalls that the McFalls family made use of Part 2 as they intended - for privacy screening and additional space. The fact that they may have respected the fragility of the ground in Part 2 by virtue of the installation of a septic system in that area at least in part, did not and does not amount to acquiescence with respect to ownership by the Gaulds of the entirety of Part 2.
[91] For these reasons, the Gaulds' claim as framed to all of Part 2 of Lot 54 on the basis of adverse possession must be dismissed.
(iv) Part 6
[92] Like Part 2, it is clear from the evidence that Part 6 on the Callon Dietz survey is also located wholly within Lot 54.
[93] The original shared driveway was also wholly located within Part 6.
[94] The evidence is overwhelming that this driveway was a shared driveway, used by friends and family members of both the West/Gauld and Winter/McFalls families to access their cottages both on foot and by car between 1946 and 2008. There is evidence that it was also used and continues to be used for access to the Gauld cottage by service vehicles as well as by the Gaulds and visitors on foot.
[95] But I am not satisfied that the first part of the test for adverse possession has been met. There is a dearth of reliable evidence, if any, that the possession by the West/Gauld families with respect to the driveway was adverse, in the sense of "without the permission of" the Winter/McFalls families". Both families appear to have used this driveway with the knowledge and consent of the other.
[96] Even if I were wrong in this regard, I am not satisfied that the onus has been met with respect to the second part of the test which requires the Gaulds to prove on a balance of probabilities that their possession of the driveway was with the intention of excluding the Winter/McFalls throughout the statutory period. Clearly, this is not the case. As I have indicated, both families used the driveway with the knowledge and consent of the Winter/McFalls families.
[97] In addition, the Winter/McFalls families made use of this Part as they themselves intended - to access their own cottage property.
[98] For these reasons, the Gaulds' claim to Part 6 of Lot 54 on the basis of adverse possession is also dismissed.
(v) Part 3
[99] On the other hand, I am entirely satisfied that all the elements of all three prongs of the test for adverse possession have been met by the Gaulds with respect to Part 3, the south edge of which is identified on the Callon Dietz survey as "approximate to the centreline of the berm and wholly located within Lot 54".
[100] Mr. West installed a gate/fence in or about 1951 extending from the southwesterly corner of his cottage to the berm across the western edge of Part 3. It can be clearly seen in the photograph that this installation prevented sand and other persons (including the true owner, if Mr. West desired) from seeking or having unobstructed access to Part 3 from the beach. In 1954, he placed railway ties across Part 3 where they remained in place for a number of years.
[101] In addition, as indicated above, that portion of the berm that had been left when the Gauld cottage was originally built was eventually removed to allow construction of the extension and future maintenance of the cottage. A retaining wall was installed at the same time. These are clear acts of ownership which were intended and did exclude the Winter/McFalls families as well as (a) oust their possession of the land; and (b) restrain them from acting in any manner whatsoever on that portion of Part 3 where the extension was located.
[102] Further, a propane tank servicing the cottage, a water shut off valve, a drainage outlet and septic system were all installed in Part 3. In view of the installation of these essential services to the Gauld cottage of land within Part 3 as well as the equally essential need for space exclusive to the Gauld cottage to repair and maintain those services as well as the cottage itself, the West/Gauld possession of Part 3 was maintained with the intention of excluding the Winter/McFalls from the land throughout the statutory period.
[103] It is also of note that over the years, Lois Gauld and her parents planted ivy and maintained vegetation on the north slope of the centre berm although as observed by Mr. Justice Hambly, these types of activity are not unequivocal acts of ownership.
[104] The actual possession of this area of Part 3 by the West/Gauld families was and remains open, notorious, peaceful, adverse, actual and continuous.
[105] The McFalls have deposed that they increased the height of the berm which resulted in the benefit of even greater screening and privacy from the Gaulds and that they did not maintain the north side of the berm because the esthetics did not matter to them.
[106] I find that this evidence rings somewhat hollow in the context of their opposition to the Gaulds' claim of Part 3 on the basis of adverse possession. The intentional increase in the height of the berm also increased the social and visible division between the two families and emphasized the physical boundaries of the properties. The absence of objection is equally consistent with a finding that the true owners of Part 3 had been dispossessed of that Part.
[107] Given the type of activity, the location of the activity and the extent of the activity by the West/Gauld families over the years on Part 3, I am entirely satisfied that these families intended to exclude the Winter/McFalls families from interference, any intended use they may have made or make of Part 3 and ultimately possession of Part 3.
[108] Further, based on the dates referred to in the evidence regarding the events touching upon Part 3; I am satisfied on a balance of probabilities, that the three requirements for adverse possession were met for an uninterrupted period of at least ten years prior to conversion of this property to the Land Titles system.
[109] For all of these reasons, the Gaulds' claim with respect to Part 3 of Lot 54 is granted.
(vi) Parts 4 and 5
[110] The same conclusion cannot be reached for Parts 4 and 5 on the Callon Dietz survey which are also located wholly within Lot 54.
[111] There is insufficient reliable evidence before me that there was actual possession of either or both of these two Parts that was open, notorious, adverse, actual and continuous by the West/Gauld families and that the Winter/McFalls families were ever intended to be excluded from either or both of these two Parts.
[112] The Gaulds claim must therefore fail with respect to Parts 4 and 5.
(b) Prescriptive Easement
[113] In Hunsinger v. Carter, 2018 ONCA 656[^1], the Ontario Court of Appeal recently confirmed that an easement by prescription can arise either under s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L 15 or pursuant to the doctrine of 'lost modern grant'. Both sources have the same four requirements:
(a) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;
(b) the properties cannot be owned by the same person;
(c) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and
(d) there must be twenty or forty years of continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner.
[114] After a property has been registered under the Land Titles system, a pre-existing prescriptive easement over the land can be established if the four criteria can be proved to have been met before the land was transferred into Land Titles.
[115] The onus is on the claimant to prove all necessary elements including "user as of right" which means without permission of the owner or "user from which a reasonable person would infer that a right was being claimed or asserted." See 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241; Mason v. Morrow, 1998 CarswellOnt 2753, [1998] O.J. No. 2679
(a) Part 2
[116] The Gaulds seek a declaration that in the absence of a finding that they own Part 2 on the basis of adverse possession, they are entitled to an easement over Part 2 for the purpose of accessing their property. Their claim rests on the doctrine of lost modern grant.
[117] To establish an easement by prescription, the Gaulds must therefore establish on a balance of probabilities, their use of the McFalls land to the better enjoyment of the Gaulds for a period of at least twenty years. The period of twenty years is counted as being the period next before some action wherein the claim to which such period relates is brought into question. The use must have been continuous, uninterrupted, open, peaceable, with the knowledge of and without the objection of the McFalls, the owners of the servient tenement against whom the Gaulds, the owner of the dominant tenement makes their claims.
[118] There is no doubt that the Gaulds' use of Part 2 over the years may essentially be characterized in two ways; (a) to allow the provision of services to their cottage such as telephone, cable and septic system; and (b) to allow vehicular and pedestrian access to their cottage from the road.
[119] I find that the septic system that services the Gauld cottage had been in place for a period of twenty years prior to the objection of the McFalls and prior to the conversion of the property to Land Titles. I also find that the septic system has been in use continuously for a period of in excess of twenty years. The use has been peaceable and to the better enjoyment of the Gaulds.
[120] I am also satisfied that the use has been “open”. I disagree with the submission of the McFalls that the Gaulds cannot acquire an easement for any part of their septic system by reason of the fact that it is underground and therefore not "openly used" as required. The term "open" is the antithesis of the term "secret". A secret use will not create a prescriptive right. But merely because an installation, like a septic system, is underground does not mean it is secret and not open and notorious. See Vannini v. Public Utilities Commission of Sault Ste. Marie, 1972 CanLII 413 (ON SC), [1973] 2 O.R. 11.
[121] As prior courts have found, whether the use of the land by the claimant is "secret" is a question of fact to be decided on the evidence in each case.
[122] In this case, the area of the septic bed has been visibly marked from time to time for each owner of Lot 54 since 1960 and the existence and location thereof made known to Mr. McFalls.
[123] Further, there is no reliable evidence that Mrs. Winter was not present or not aware of both the fact of and the timing of the installation of the first septic system in 1960. There is no reliable before me that she was not informed about it. In any event, given the close relationship of these family members and neighbours over the years and the frequency of their attendance at their cottages, it is reasonable to infer that both Mrs. Winter and Mr. McFalls were aware that the Wests/Gaulds had toileting/plumbing facilities available inside their cottage, a fact which relies on the existence and use of a functioning septic system.
[124] There is also no reliable evidence that Mr. West or the Gaulds obtained the permission of the true owner of Part 2 for the installation or continued use of a septic system in that Part.
[125] For these reasons, I have reached the conclusion that the Gaulds have, in fact, a limited prescriptive easement across Part 2 for their septic system. The McFalls are enjoined from obstructing this limited easement over Part 2 in any way that would interfere with its established use including service, maintenance, repair and/or access to the septic system located therein.
[126] I am unable to reach the same conclusion, however, with respect to the Gaulds' claim for an easement through Part 2 for the purpose of access in any manner to their cottage. For the sake of expediency, I shall deal with this part of the Gaulds' claim in conjunction with Part 6 below.
[127] I should also note for the benefit of the parties that although I have found that a limited easement over Lot 2 exists for the benefit of the Gaulds as it relates to the septic system, the McFalls will be entitled to encroach on this easement unless their encroachment amounts to substantial interference with the Gaulds' use of the easement. Therefore, unless the presence and use of the garden bed planted by the McFalls amounts to substantial interference with the Gaulds' use of the easement with respect to their septic system, there are no grounds for its removal. See Hunsinger v. Carter, 2018 ONCA 656
(b) Part 6
[128] In consideration of the same test to be met with respect to prescriptive easement, the facts vary with respect to the Part 6.
[129] As I have indicated above, objective and reliable evidence as to what the original owners Mr. West and Mr. Winter knew, agreed to and/or permitted at the outset and over the following years is unavailable.
[130] The difference in the facts with respect to Part 6 concerns the requirement that the “benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement”.
[131] The Gaulds have not met this onus.
[132] In my consideration of the term "reasonably necessary", I have considered the use or development of Lot 55 that would be possible if the easement were not granted and the use or development of Lot 55 if the easement were granted.
[133] In looking at the Callon Dietz survey and as established by the Gaulds themselves in 2008 (when they built a second driveway located entirely within Part 1 of Lot 55), the use of the shared driveway in Part 6 of Lot 54 was not and is not “reasonably necessary” to the Gaulds for their enjoyment of Lot 55.
[134] There is no evidence before me that the creation of a driveway located entirely within Lot 55 was not physically capable of being carried out at any time after the original purchase of the land in 1946. There is no evidence before me that the option of creating a driveway anywhere along the 50 feet of Lot 55 adjacent to the road was not always available to the owners of Lot 55. Indeed, this is an option they eventually exercised apparently without difficulty in 2008
[135] I further find that the shared driveway was not and is not necessary for the Gaulds to gain “reasonably convenient” access to their cottage. The use of a joint driveway may have saved work, expense and/or allowed for a shortcut on approach to the Lot 55 from the south but, in my view, a driveway at this location was not “reasonably necessary” for the West/Gaulds to access their property even in these circumstances.
[136] I am simply unable to find that the Gaulds would be left without a legally enforceable means of accessing the cottage and their surrounding property if the easement were denied. See Barbour v. Bailey, 2016 ONCA 98
[137] In these circumstances, I am not prepared to subject the owners of Lot 54 to the burden of an easement across Part 6 of their land.
[138] The claim by the Gaulds for a prescriptive easement with respect to Part 6 is therefore dismissed.
Conclusion
[139] Lois Gauld and James Clifford Gauld are the owners in fee simple, as joint tenants, of all of Part 3 of Lot 54 on the Callon Dietz survey by reason of adverse possession.
[140] Lois Gauld and James Clifford Gauld are granted a limited perpetual easement in, on, over, under and above that part of Part 2 of Lot 54 on the Callon Dietz survey where the septic system or any part thereof which may service Lot 55 is located, for the purpose of maintenance, repair and replacement of the said septic system or any part thereof.
[141] In all other respects, the Application is dismissed.
[142] The parties have 60 days to serve and file brief written submissions electronically with respect to costs.
[143] I thank counsel for their very helpful submissions, Factums and Briefs of Authority.
Justice L. C. Templeton
Templeton J.
Released: August 3, 2018
[^1]: This case was released after the hearing of the case at bar but concisely confirms the law as it existed in December 2017.