SUPREME COURT OF Nova Scotia
Citation: Gallagher v. Gallagher ., 2015 NSSC 88
Date: 20150319
Docket: Amh. No. 412188
Registry: Amherst
Between:
James Curtis Gallagher
Applicant
v.
David Gallagher & Evelyn Gallagher
Respondent
- and -
David Raymond Gallagher & Evelyn Shirley Gallagher
Applicants
v.
Mabel Gallagher
Respondent
DECISION
__________________________________________________________
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Judge: |
The Honourable Justice E. Van den Eynden |
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Heard: |
December 10 & 11, 2014, in Amherst, Nova Scotia |
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Written Decision: |
March 19, 2015 |
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Counsel: |
Brian Creighton, Solicitor for the Applicants Jeremy Smith and Alison Morgan, Solicitors for the Respondent |
By the Court:
Introduction:
[1] The parties are James Curtis Gallagher (herein “James Gallagher”), David Raymond Gallagher (herein “David Gallagher”) and Evelyn Shirley Gallagher (David's spouse and herein “Evelyn Gallagher”) and lastly, Mabel Emily Gallagher (herein Mrs. Gallagher). James and David are brothers and Mrs. Gallagher is their mother.
[2] The application before me involves the determination of a common boundary line between the parties. The determination of the disputed boundary line proposed by each side involves a fairly narrow strip of land.
[3] David and Evelyn Gallagher own land on one side of the disputed strip known as the “sugar woods land”. This land had been used in the past to tap maple syrup. James Gallagher owns land on the other side of the disputed strip known as the “blueberry lands”.
[4] After James Gallagher commenced his application it became apparent that Mrs. Gallagher’s property would be impacted by the outcome of the boundary line. It was agreed she would be brought in by David and Evelyn Gallagher commencing an application naming Mrs. Gallagher as a respondent and then consolidating, by consent, the two applications. This is what occurred procedurally. James Gallagher was permitted to amend his pleadings in June 2014; primarily for the purpose of pleading ownership of the disputed strip through adverse possession.
[5] The blueberry lands were formally owned by Curtis Gallagher (herein “Mr. Gallagher”). The late Mr. Gallagher is the father of David and James. James Gallagher helped his father work the blueberry crop for many years prior to James acquiring title.
[6] David Gallagher wanted to purchase the blueberry lands from his parents; however, in 2002 the bulk of the lands were conveyed to James Gallagher. About two years prior to this, Mr. Gallagher conveyed his land to himself and his wife as joint tenants and also executed a power of attorney appointing his wife, Mrs. Gallagher. At the time of the conveyance of land to James, Mr. Gallagher was not well and Mrs. Gallagher executed the deed in her own capacity and as power of attorney for Mr. Gallagher.
[7] This appears to have created a long standing and deep fracture in the relationship between David and James and between David and his mother. In 2012 David Gallagher retained a surveyor to determine the location of the boundary between the sugar woods land and the blueberry lands. James subsequently retained a surveyor. Each surveyor established a different boundary line.
[8] The description in the deed is not determinative of the boundaries. There are no earlier survey plans available to assist. The establishment of a firebreak (intended to mitigate the risk of fire spreading to the sugar woods when blueberry bushes were burned) is central to the dispute.
[9] James Gallagher asserts the firebreak is key to establishing the common boundary line. David and Evelyn Gallagher assert it is nothing more than a firebreak with a limited and intended purpose and the fire break was placed entirely on property to which they hold title. They also assert there is insufficient evidence to establish ownership by James Gallagher through adverse possession. Mrs. Gallagher supports James’ position.
Issues:
[10] The issues I have to decide are:
1. Where is the common boundary line between the parties?
2. In the event the line is in favour of David and Evelyn Gallagher; did James Gallagher acquire title to the disputed strip of land through adverse possession?
3. What weight should I afford the expert testimony?
Analysis:
[11] I will review the relevant evidence and positions of the parties as it relates to each issue. I will address the expert evidence and weight afforded under the first issue.
1. Where is the common boundary line between the parties?
[12] The parties agree the deed description is not determinative. The determination of this first issue is largely a question of fact. The expert opinion of two surveyors was provided to assist the court in interpreting the old evidence still available on the ground.
[13] The blueberry lands now owned by James Gallagher and the sugar woods land now owned by David and Evelyn Gallagher come from the same parent parcel.
[14] In 1952 W. J. Brown entered into what I call a long term agreement of purchase and sale with Mr. Gallagher. He agreed to sell Mr. Gallagher a parcel of land which has come to be known as the blueberry lands. Mr. Brown retained approximately 50 acres which are the lands known as the sugar woods land together with a right of way. Although the agreement of purchase and sale was entered into in 1952; the property was not conveyed to Mr. Gallagher until 1974. In the interim, Mr. Gallagher had occupation and use.
[15] In 1952, although the blueberry lands had some wild blueberry plants growing, the property was more farm land. As time went on, more effort was put into the development of the blueberry crop, particularly beginning in the early 1960’s and forward. This included initially mowing and the bi-annual burning of the blueberry fields on a regular basis.
[16] In around 1969 one of Mr. Brown’s employees, using a bulldozer, created a fire break. This is simply a swath made by the bulldozer blade. The intended purpose was to protect the sugar woods from the potential spread of fire related to the burning operations carried out in the blueberry fields. The bulldozer swath does not run the whole length of the disputed property strip; rather just the area of concern where the blueberry fields are in proximity to the woods.
[17] James Gallagher asserts his father and Mr. Brown agreed the firebreak established their common boundary line and they shared the expense of bulldozing the fire break. James Gallagher has no firsthand knowledge of this; rather he states his mother and Mr. Brown’s son told him this.
[18] Mrs. Gallagher was not present for cross examination on the two affidavits she filed. I understand the parties gave consideration to her age and health and agreed to tender portions of her discovery testimony in lieu. In addition to having a general difficulty in recollecting matters, Mrs. Gallagher also had no firsthand knowledge (or any she could recollect) of the discussions between her late husband and Mr. Brown. She indicates she formed this belief based only on discussions she had with her husband.
[19] I have concerns with Mrs. Gallagher’s evidence respecting the boundary which impacts the weight I attach to her evidence. She lacks direct knowledge; her evidence of the alleged common boundary is more general in nature and her overall poor ability to recollect as demonstrated in the discovery transcript is of concern. For these reasons, I attach little to no weight to her evidence that the firebreak was intended to be the common boundary.
[20] Roderick Brown, the son of the late Mr. Brown, gave evidence in support of James Gallagher’s position. He gave evidence to the effect that at the time the bulldozer swath/firebreak was etched in the ground in 1969 his father told him the boundary line ran down the middle. He made general statements that it was his understanding the Gallagher family and Brown family had agreed and understood the middle of the fire break and its extension in both directions was the boundary line.
[21] Roderick Brown was not present when Mr. Brown and Mr. Gallagher discussed the firebreak. In fact, no witnesses have direct knowledge. There is no written record of the discussions between Mr. Brown and Mr. Gallagher.
[22] In the 1974 deed from Mr. Brown to Mr. Gallagher it uses the same boundary description as the agreement of purchase and sale. If Mr. Brown and Mr. Gallagher had, between 1952 and 1974, agreed that the bulldozer swath would be treated as a binding and definitive common boundary line (which line would need to be notionally extended to the end of the adjoining lands) one would expect that to be reflected in the deed. If that was their agreement and intention those terms are not reflected in the deed. Nor, as noted, are they captured anywhere in writing.
[23] Neither party relies upon the description in James Gallagher’s 2002 deed. This description was prepared by Gerald Gallagher who is not a trained surveyor. Mrs. Gallagher retained a portion of lands known as the blueberry lands which also abut the common boundary to be determined.
[24] As noted, James Gallagher claims the fire break is the established boundary. The “best fit" boundary line proposed by James Gallagher’s expert Mr. Giovannetti is consistent with this claim. For reasons which I will explain later, I have difficulty with the boundary proposed by Mr. Giovannetti.
[25] David and Evelyn Gallagher received title to the sugar woods property in 1991. They acquired the property from William J. Brown Limited (Mr. Brown had earlier transferred the property to this company).
[26] David Gallagher gave evidence to the effect that prior to his purchase in 1991 his father expressed worry that if another owner were to acquire the sugar woods property he (Mr. Gallagher) would not be permitted to harvest blueberries that grew between the boundary and the firebreak.
[27] Although the evidence is not entirely clear, it is reasonable to conclude that at the time the fire protective bulldozer swath was created around 1969 the wild blueberry crop had crept up to this fire break and some plants were on the other side of the swath, closest to the trees. Over time the crop continued to develop on both sides of the protective swath.
[28] According to David Gallagher, his father informed him the late Mr. Brown gave Mr. Gallagher permission to harvest the blueberry crop which grew on the far side of the swath or firebreak up to the tree line. His father and James Gallagher continued with this harvest; but, from David’s perspective, with permission.
[29] David Gallagher gave evidence to the effect that around the time of his purchase of the sugar woods property he and his father walked the line together and his father pointed out that some of the blueberry crop being harvested was on the property David was going to purchase. According to David Gallagher, he told his father he could continue to harvest blueberries for the rest of his life. David Gallagher also stated it was his father’s intention to sell him the blueberry land; because David would pay fair market value.
[30] Ted Gallagher (the son of David and Evelyn Gallagher) stated he approached his grandfather, Mr. Gallagher, for permission to create a bike trial which would run over the disputed property. Mr. Gallagher told him to ask permission from his parents as this area was part of the sugar woods property they acquired in 1991. In an attempt to rebut this, there is an affidavit filed by Gerald Gallagher (the son of James Gallagher) which indicates no permission was sought from Mr. Gallagher, nor were any boundaries discussed but only to his knowledge. Gerald Gallagher would not have been privy to all conversations between Ted Gallagher and his grandfather Mr. Gallagher.
[31] As noted, at the time of the conveyance to James Gallagher, Mr. Gallagher did not execute the deed. His spouse Mrs. Gallagher signed off on his interest under the power of attorney. It is clear on the evidence that James Gallagher worked closely with his father in the development of the blueberry crop. Far more so then did David Gallagher. Since 2002 there has been very limited communication between the brothers David and James.
[32] There appears to be no driving event which leads to David Gallagher obtaining a survey of the boundary in 2012 other than his desire to clearly establish the boundary line.
[33] There is conflicting evidence from both sides respecting the intention of the original owners Mr. Brown and Mr. Gallagher. The best evidence is not available as these two witnesses are deceased.
[34] I prefer and accept the evidence of David Gallagher for the following reasons:
1. I accept the argument advanced on behalf of David and Evelyn Gallagher that a fire break has a limited and intended purpose. It is to protect against the spread of fire; not to delineate against ownership or to keep people out; such as a fence.
2. The firebreak is no more than a bulldozer swath to protect against fire; something that would make abundant sense for Mr. Brown to do. Since taking possession of the property in 1952, Mr. Gallagher was ramping up the cultivation of wild blueberries; particularly, with more effort in the 1960’s. Mr. Brown had retained lands which included the sugar woods and he needed to take protective steps. If Mr. Gallagher did share in the costs; it would not be significant and in any event sharing in the cost to hire a bulldozer operator to edge a swath in the ground does not in and of itself conclude a definitive boundary line.
3. The 1974 deed did not mention the firebreak as a boundary line. If this was the agreement between the two owners at the time; one would expect that to be reflected in the deed. They choose not to do so.
4. David Gallagher’s evidence that his late father told him the boundary line between the two properties started near a power pole across the road from their home and ran north-easterly was independently corroborated and born out to be accurate by the survey conducted by Mr. Rayworth.
5. In my view, the evidence of David and Evelyn Gallagher is generally consistent with the opinion of surveyor Rayworth; which opinion I prefer and accept for reasons I will articulate.
Review of Expert Evidence:
Mr. Giovannetti
[35] Mr. Giovannetti was retained by James Gallagher to provide an opinion on the common boundary line. He was retained after Mr. Rayworth marked his survey line of the common boundary.
[36] Mr. Giovannetti’s expert reports go beyond critiquing Mr. Rayworth’s expert reports. Without mincing words he alleges Mr. Rayworth:
- Ignored blaze evidence;
- Used suspect blaze evidence;
- Ignored occupation evidence and the significance of the fire break;
- Relied on inferior evidence including the evidence provided by his client and thereby acted in a partial manner;
- He acted in a manner “contrary to the responsibilities of the surveyor in regards to his or her duty to the public and the Court as a Professional Surveyor”. That is a direct quote from page 19 on his November 20, 2013 report. On page 12 of his May 23, 2013 report he also asserts professional rule breaches by Mr. Rayworth; and
- In his final supplemental report of February 24, 2014 he accused Mr. Rayworth of “gross error”. On page 3 he goes on again to repeat, unequivocally, his opinion regarding failures of Mr. Rayworth and indicates it is hard to understand how a seasoned surveyor could have made these mistakes. In his affidavit evidence he also states the Rayworth proposed boundary line misrepresented the evidence.
[37] I reject these assertions of wrongdoing entirely. In my view, Mr. Giovannetti’s assertions are unwarranted, unfair and border on an inappropriate personal attack.
[38] Based on the evidence, I have serious concerns with Mr. Giovannetti’s opinion. For the following reasons I reject his opinion that his proposed “best fit line” is the common boundary:
1. Mr. Giovannetti characterized blaze 15 as not representative of an old blazed tree. He referred to the marks on the tree as blemishes or scars brought about by the fence wire on the tree rubbing, or perhaps a downed limb scrapped, or bruised, the tree. If blaze 15 was not dismissed; it would be problematic for his proposed “best fit” line. Mr. Rayworth’s evidence and the photos establish the markings are well above the wire fence. I reject Mr. Giovannetti’s dismissive explanation and find these to be blazes placed for the purpose of marking the boundary line in question;
2. The proposed “best fit line” has to go through some superimposed constructs to make it work; including the use of a transition line;
3. Elevating the use of a bulldozer blade swath or fire break to that of a fence, is a stretch in these circumstances;
4. I find Mr. Giovannetti was not impartial. He entered the fray of advocacy. Under cross examination he acknowledged that in his email communications with counsel for James Gallagher he used language of bullying and you get the justice you can pay for. I find these references were directed towards Mr. Rayworth;
5. Furthermore, under cross examination, he acknowledged he reviewed the briefs filed on behalf of David and Evelyn Gallagher. He made suggestions to counsel for James Gallagher on how to refute arguments and gave his views on the burden of proof; and
6. During the course of the trial when counsel for James Gallagher was examining a witness he got counsel’s attention and slipped him a note.
[39] I find Mr. Giovannetti acted in a manner that crossed the line into advocacy as opposed to an independent expert providing objective evidence to the court. I found his general approach to be adversarial.
[40] For these reasons, I reject the opinion of Mr. Giovannetti respecting the placement of the boundary line and afford little to no weight to his evidence.
Mr. Rayworth
[41] Mr. Rayworth was retained by David Gallagher in January 2012 to determine the common boundary line. For the following reasons I accept the opinion of Mr. Rayworth:
1. I find him impartial and to have carried out his survey work in a thoughtful, reliable and logical manner;
2. I find he did not ignore evidence, use suspect evidence or rely upon inferior evidence;
3. The parties agree the historical blazing done to demark the boundaries some decades ago was not carried out by professionals. Rather, lay people going through the woods and blazing trees. In a natural forest, trees do not grow in a straight line. Blazes can be found on either side of a boundary. I am satisfied Mr. Rayworth sought out and utilized the best evidence on the ground;
4. I accept his opinion that the marking on blaze 15 (which is a material piece of evidence) is an older and relevant blaze. I have reviewed the enlarged colour photograph of blaze 15 which I requested the parties provide. I find Mr. Rayworth’s conclusion this was a blazed tree intended to mark the boundary line in question to be logical. In my view, this conclusion best matches the physical evidence on the ground and is overall most consistent with all the evidence. Blaze 15 is not suspect evidence;
5. Mr. Rayworth did not ignore evidence of occupation. In his report he clearly identified the disputed portion that may be subject to rights gained by use, agreement, or occupation. (That is the second issue I will determine); and
6. Mr. Rayworth provided a rational explanation of how he considered and interpreted each blaze. He did not fail to consider anything material. Furthermore, there is nothing unusual of a surveyor asking a client landowner where they think their boundary line is located. The fact the boundary line proposed by Mr. Rayworth has a start point in close proximity to that which was identified by David Gallagher does not make his expert conclusion suspect.
Position of James Gallagher:
[42] James Gallagher argues the agreed common boundary line is the centre line of the fire break and this agreed boundary binds the parties. He also relies on the doctrine of conventional lines and referred me to Robichoud v. Ellis, 2011 NSSC 86 and Re Munn NBCA Carswell ND 446.
[43] That doctrine requires satisfactory evidence that an agreement was reached between the owners. The burden of establishing the agreement rests with James Gallagher.
[44] I do not accept the fire break was the intended common boundary. James Gallagher has not met the burden placed upon him.
[45] I find the firebreak was created and used for a specific and limited purpose; that being to remediate the risk of fire spreading. I accept Mr. Gallagher and then his son, James Gallagher, harvested the blueberry crop that continued to spread right up to, on and over, the fire break from 1969 forward; however, this evidence is more relevant to the second issue.
[46] I accept the survey work and expert opinion of Mr. Rayworth. Because of this and for my reasoning noted above, I establish the common boundary line between the parties to be as reflected by surveyor Rayworth.
[47] Having accepted the boundary as proposed by surveyor Rayworth as the correct boundary, I now turn to the second issue.
2. Did James Gallagher acquire title to the disputed strip of land through adverse possession?
Relevant Law:
[48] Counsel has referred to Section 10 and 22 of the Limitation of Actions Act; which provisions are applicable.
[49] From a review of the relevant authorities, the following is a summary of the relevant legal principles:
- A true or paper title owner is presumed to be in possession of their land. A true owner is not required to show they are in possession by occupation or use;
- To oust a title owner, although the burden is on a balance or probabilities, the court should only act on very cogent evidence that establishes the required possession for the statutory period. (Cook v. Podgorski, 2013 NSCA 355, para. 58)
- Possession is fact specific. The acts of possession which must be proved with cogent evidence depends on the circumstances of each case and the nature of the land in issue. (Cook, para. 49)
- The claimant of possessory title (in this case James Gallagher) has the burden of proving with very persuasive evidence that he had possession of the land in question for a full 20 years and that his possession was open, notorious, exclusive, and continuous.
- He must also prove that his possession was inconsistent with the true owner's possession and that his occupation ousted the owner from its normal use of the land. As well, possession by a trespasser of part is not possession of the whole. Every time the owner, or its employees or agents stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession. (Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39 and Bain v. Nova Scotia Attorney General, 2005 NSSC 355.)
- A true owner interrupts the adverse possession of an occupier the moment a true owner steps upon the lands. The limitation period begins to run from the time the true owner was last upon the lands; Hatt v. Peralta, 2014 NSCA 15.
Evidence and Position:
James Gallagher
[50] Having established where the appropriate boundary is, James Gallagher’s alternate argument is that he acquired the disputed property by adverse possession. That is his burden to bear on a balance of probabilities with clear and cogent evidence.
[51] James Gallagher is only seeking a portion of the disputed lands as highlighted in yellow on exhibit 3 (being the portion of land which essentially comprises the land up to the tree line which wild blueberries were harvested off).
[52] James Gallagher asserts his occupation and his parents before him has been open, notorious, unchallenged, exclusive, and uninterrupted since 1952.
[53] He relies heavily on the bulldozer swath created in 1969 to protect against the spread of fire. James Gallagher argues it is illogical that Mr. Brown would keep a portion of a field if he wanted to retain woodland and sell the balance of his farm property. He argues it is equally logical that Mr. Gallagher would expect to acquire the entire cleared land/fields for farming purposes.
[54] He argues the uses of the disputed property are such that it would not trigger the resetting of the statutory clock.
David and Evelyn Gallagher
[55] David and Evelyn Gallagher argue neither James nor Mr. and Mrs. Gallagher exercised continuous possession for the required statutory period. Even if there were sufficient acts of possession (which is not admitted), the clock stopped for the adverse possessors on numerous occasions such that James Gallagher cannot establish a continuous period of possession for the full required statutory period.
[56] It is also argued James Gallagher or Mr. and Mrs. Gallagher did not use the land in a manner inconsistent with the true owners, did not use the land exclusively, and used the land with permission.
[57] David and Evelyn Gallagher refer to the following evidence of re-entry to establish the lack of exclusive use and the resetting of the limitation clock:
- An employee of William Brown, the former owner, entered the disputed area to construct a firebreak in 1969;
- Former owner William Brown and the agents or employees of William Brown Ltd. traveled over the disputed area each year when accessing the sugar woods during maple syrup season. They also maintained and plowed the roadway. These acts occurred regularly between 1952 and 1991;
- When David and Evelyn Gallagher acquired title to the sugar woods land in 1991 until present, they continued to enter and cross the disputed lands on many occasions. Their use of the disputed land included the following:
o David Gallagher crossed to hunt in the sugar woods;
o Evelyn Gallagher would take the child of a family friend fishing in the creek on the disputed lands;
o In 2002 David Gallagher and a crew entered on the disputed land to the west of the woods road to cut trees; and
o In 2012 David Gallagher entered with surveyor Rayworth.
[58] Respecting the use not being inconsistent with the true owners use they argue:
- Sugar woods is/was primarily a wood lot. Maple sugar was extracted at one point but during David and Evelyn Gallagher’s use, they did not use the land extensively given its very nature; and
- The blueberries were wild and continued to grow and expand on their own over the years. The fact they naturally crept up to and beyond the bulldozer swath is not inconsistent with the true owners use.
[59] Respecting permissive use, David Gallagher gave evidence that his late father encouraged him to buy the sugar woods property so he could continue to harvest berries. David Gallagher stated his father expressed concern if someone else purchased the property they might not grant permission. David Gallagher gave evidence he told his father he could continue to harvest berries for the remainder of his lifetime.
[60] David and Evelyn Gallagher appear to concede James Gallagher might have exercised open possession but he and his predecessors Mr. and Mrs. Gallagher have not satisfied the other necessary elements of adverse possession.
Turning to my findings and decision on this issue:
[61] I find the true owners in title (being the current owners and the predecessors in title William Brown and then the Limited company) continued to use their land and interrupt the possession of Mr. and Mrs. Gallagher and then James Gallagher. James Gallagher’s use while open was not exclusive.
[62] I have considered the nature of the use of the sugar woods property and find the entry of the true owners was sufficient to stop the clock such that James Gallagher, or Mr. and Mrs. Gallagher, never possessed the property for the full statutory period.
[63] There was a natural creep of the wild blueberry crop irrespective of any management. Mr. Gallagher and James Gallagher were in the business of harvesting blue berries. The true title owners were not. If berries were growing up to and across the firebreak they harvested these berries as well; no one else was interested in the crop. Harvesting up to and across the swath is not inconsistent with the true owners use. In any event, the true owners entered their property fairly regularly and stopped the clock upon re-entry.
[64] For the reasons noted earlier, I find the fire break was just that. No more.
[65] Turning to the question of use by permission, I find the evidence of David Gallagher discussing his purchase of sugar woods with his late father, his father expressing concern of continued access to the crop and that David told his father he could continue to harvest, is more plausible. I accept this evidence. Even absent permission, the claim for adverse possession fails for the reasons noted above.
[66] In conclusion, I have determined James Gallagher has failed to satisfy, on a balance of probabilities, that he is entitled to ownership through adverse possession. David and Evelyn Gallagher remain the true owners of the disputed property.
[67] I will hear the parties on costs.
Justice E. Van den Eynden
03/19/15