Piper v Stevenson, 1913 CanLII 615 (ON CA)

Clute J. — #

The plaintiff claims as owner and occupier of lots 28 and 29, block “A,” Marmot street, North Toronto, registered plan No. 722, and asks an injunction restraining the defendant from trespass and for damages for former trespass and forcible entry. The defendant denies that the plaintiff is the owner of the lots in question, and says that he purchased the same from the registered owner thereof, and thereupon entered into possession of the same and built a fence thereon and planted a crop, which are the trespasses complained of.

In March, 1901, the plaintiff bargained for the adjoining lots with one Whaley, and in May or June delivered to Whaley a buggy in part payment. In September the plaintiff enclosed the Whaley lots and the lots in question by a fence, but did not receive the deeds of the Whaley lots until the 4th February, 1902, when three of them were conveyed to the plaintiff, and the 4th July, when the remaining three were conveyed to the plaintiff. In the fall, probably in October, after the fencing took place, the plaintiff had manure drawn upon the lands in question; and the evidence shews that they have been cultivated and cropped by the plaintiff ever since.

The plaintiff did not reside upon the land in question, nor upon the lots purchased from Whaley, until 1905 or 1906, but lived at a short distance therefrom, upon a rented farm, from which she could walk to the lots in about fifteen minutes, or drive in five minutes. The Whaley lots, and the lots in question, formed a block, and were wholly enclosed from September, 1901, until action brought on the 21st June, 1912.

The learned trial Judge finds that the lands in question “were fenced in with her own as one lot” in September, “and all the lots thus enclosed were together ploughed as one lot, and during the following winter manure was drawn out and placed upon the land. Everything was done to it that an owner intending to possess and cultivate it would have done. In the following spring it was cropped, and from that time on it was cultivated until the crop was taken, off, when fall ploughing and manuring were again done. And this has gone on continuously ever since. In the years 1905 and 1906, buildings were erected, and in the latter year the plaintiff went to live and has ever since lived there. Her possession has been all along open, obvious, exclusive, and continuous. Until 1906, everything was done upon the land that an owner could do in reaping the full benefit of it ; and, since the spring of that year, everything that an owner in actual, constant occupation would do. All this is well proved by the witnesses Doughty, Whaley, and Newman as well as by the plaintiff and her husband.”

I think that this is a fair statement as a result of the evidence. The learned trial Judge then proceeds: “I cannot think that the logical result of the reasoning in any of the decided cases can be that there can be no possession which would ripen into a right to the land unless the possessor also lives upon it; and, if it were, I would be quite unable to follow it to that extent in this case. Here there was the plainest evidence of wrongful possession, in the fencing in of the land in question as part and parcel of the plaintiff’s land alone, calling for action on the owner’s part if he desired to save his rights—action in removing the fences or in the Courts of justice; and, in addition to that, there was the continuous use by the plaintiff for her own benefit, for upwards of ten years before any such action was taken; and so the rights of the owner became barred by statute.”

Mr. Armour strongly urged that what was done by or on behalf of the plaintiff in respect of fencing and occupation of the lots did not bring the case within the purview of the statute so as to give her a title, because the work was done by her servant, and she did not personally reside upon the land until some five or six years after the property was fenced. He further urged that the deeds to the plaintiff of the adjoining lots not having been given until February, 1902, the possession of the adjoining lots was in the owner of them, and the lot in question could not be considered as enclosed with the plaintiff’s until she received the deed; and that the entry by the defendant after he had received his deed, he then having the paper title, vested the property in him, the statute not having run a sufficient length of time from the date of the deed of the adjoining lots to the plaintiff and the entry by the defendant.

The plain answer to that, I think, is this: it is wholly immaterial whether the plaintiff had received a deed of the adjoining lots or not; she had bargained for them, and fenced them in, in September, 1901; and her possession of them and of the land in question was continuous and exclusive from the date of fencing.

As to the entry, such as it was, under the law as it now stands, it could have no effect. Since the Act, sec. 8, no person shall be deemed to have been in possession of any land within the meaning of the Act merely by reason of having made an entry thereon. “Under the old law a merely formal entry by the person entitled was sufficient to vest the possession in him: Co. Litt. 253b; though under 4 & 5 Anne ch. 16, sec. 16, such an entry or claim was not effectual to avoid the statute 21 Jac. I. ch. 16, unless an action was commenced within a year and prosecuted with effect…The result is that an entry, to vest the possession in the person entering and prevent the bar of the statute, must be effective as opposed to merely formal. The making an entry amounts to nothing unless something is done to divest the possession out of the tenant, and revest it in fact in the lord: Doe v. Coombes (1860), 9 , C.B. 714, at p. 718. And it must be made animo possidendi: Soiling v. Broughton, [18 , 63] A.C. 556.” In the Coombes case, after the encroachment, the lord of the manor, accompanied by the steward, entered. The lord stated that he took possession, and directed that a stone should be taken out of the wall of the hut, and that a portion of the fence should be removed. This was held no more than a mere entry, and not sufficient to vest the possession in the lord. See Lightwood’s Time Limit on Actions, pp. 11, 12.

It is said in Worssam v. Vandenbrande (1868), 17 W.R. 53, that slighter acts will be sufficient if no person is actually on the land at the time of re-entry, although the possession may not be vacant. In that case the predecessors in title went to the land, broke down the fence, and erected a post with the announcement that applications for a lease of the land were to be made to them. They remained on the land three-quarters of an hour. Three days later, the post was gone, but there was no evidence to shew who had removed it. For the next five years no one, so far as appeared, did anything on the land, and then the defendant re-entered and built upon it. It was held that the plaintiffs’ predecessors had effectually resumed possession.

The present case differs from that quoted in several particulars. The land has been continuously used and occupied down to the present time by the plaintiff. The plaintiff was in fact residing upon the land at the time the alleged entry was made, that is, upon the block of which the lands in question form a part, being one enclosure for the whole. Also here the ten years had elapsed after the enclosure and before the entry; and the entry was such as, I think, expressly falls within sec. 8 of the Act.

There remains, therefore, for consideration, only the question as to whether or not a piece of land entirely enclosed with other lands by the plaintiff, used and occupied by her continuously for over ten years, her possession all along being “open, obvious, exclusive, and continuous,” does not come within the statute, simply because in the earlier four or five years she did not live upon the land; that is, was personally absent during the winter, although the land remained still enclosed by the fence and was used and occupied as an owner would use and occupy in such a case.

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It is impossible, I think, to treat what took place in the present case as abandonment. The land was entirely enclosed. It was cultivated and cropped every year. It is begging the question to say that, because the land was not used in the winter time, when it could not be used for any useful purpose, therefore there was an abandonment. Surely abandonment is a matter of intention, and the cultivating and cropping from year to year shews that there never was any intention of abandonment; and the case cited with respect to that point had, I think, no application.

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But, where the property is entirely enclosed by the person claiming by possession, his mere absence does not, in my opinion, amount to abandonment or make the premises vacant. It may still be considered under his control, inasmuch as it excludes all others therefrom by his enclosure. If the owner himself claimed before the statute had barred him, he could not reach his land without doing some act. He could not make an entry without at least breaking down, if not destroying, the fence. It is a notice to all the world that the property is claimed by some one and that all others are excluded, and unless there is some act on the part of the true owner to create a new starting-point, and the intruder retains possession by the enclosure, and uses and cultivates the land as his own, either by himself or his servants, although not actually present, in person or by his servants, during portions of the year, the owner is excluded and his title barred after the statutory period.

Aside from the authorities, it seems to me plain that in the present case the owner’s right of action first accrued when the lands in question were enclosed, thereby excluding him. “No person shall make an entry or distress, or bring any action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom he claims…” sec. 4 of the Real Property Limitation Act, R.S.O. 1897, ch. 133. “Where the person claiming such land or rent, or some person, through whom he, claims, has, in respect of the estate or interest claimed, been in possession…and has…been dispossessed…then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession…” ib., sec. 5, clause 1.

It seems to me impossible to say, without disregarding the fair meaning of the word, that an owner of land is not dispossessed when another has enclosed his property without leave or colour of right and uses it as his own. By sec. 15, at the end of the period of limitation the right of the party out of possession is extinguished. Here I cannot doubt upon the facts, as found by the trial Judge, fully supported by the evidence, that, during the period required by the statute, the true owner was excluded from possession by the act of the plaintiff, who never abandoned the premises, but, on the contrary, “her possession has been all along, open, obvious, exclusive, and continuous. Until 1906, everything was done upon the land that an owner not residing upon it would do in reaping the full benefit of it, and since the spring of that year everything that an owner in actual, constant occupation would do.”

This is sufficient under the Act, in my judgment, to exclude any right or title of the former owner.

As pointed out in Halsbury’s Laws of England, vol. 19, p. 110, sec. 203: “The true test whether a rightful owner has been dispossessed or not is whether ejectment will lie at his suit against some other person. The rightful owner is not dispossessed, so long as he has all the enjoyment of the property that is possible; and where land is not capable of use and enjoyment, there can be no dispossession by mere absence of use and enjoyment. To constitute dispossession acts must have been done inconsistent with the enjoyment of the soil by the person entitled for the purposes for which he had a right to use it. Mere going out of possession is not enough; in order that the statute may operate there must be not only going out of possession on the part of the former owner, but also actual exclusive possession for the statutory period by some one else to be protected. If a person enters on the land of another and, before he has acquired a title under the statute, abandons possession, no one else then taking possession, the rightful owner is in the same position as if no intrusion had taken place.”

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Appeal dismissed with costs.