Keefer v Arillotta

13 O.R. (2d) 680

Wilson, J.A. – #

This is an appeal from an order of His Honour Judge Nicholls holding that the respondents had acquired a possessory title to a portion of the appellants’ land subject to an easement remaining in the appellants.

The facts are more fully set out in the reasons for judgment of the learned trial Judge but the more significant ones for purposes of this appeal may be summarized under the following headings:

1. The nature and location of the land in issue;

2. The chain of title;

3. The conduct of the owners.

The nature and location of the land in issue #

It is unnecessary to describe the land by its metes and bounds description. Suffice it to say that it is a narrow strip of land 8 ft. wide by 105 ft. deep running between the residential property of the respondents to the south and the business premises of the appellants to the north. The most easterly 41 ft. of the strip running back from the street line is a stone driveway. Extending westward from the driveway is a grassy area running up to a frame garage owned by the respondents and located at the rear of the strip. A concrete walk-way adjacent to the appellants’ store runs up the side of the store alongside the stone driveway to a set of steps which lead up to a concrete landing giving access to an apartment located over the store. To the west of the steps and concrete landing is an entrance door to an addition which was built on to the rear of the store in 1949 by the appellants’ predecessors in title.

The chain of title #

The appellants’ and the respondents’ properties were initially owned by one Martin Cloy. In 1918 Mr. Cloy conveyed the property now owned by the respondents to one Elzear Lynch together with a right of way of ingress and egress over a portion of his own property, the strip of land in issue on this appeal. In each subsequent conveyance of that property, including the conveyance made in July of 1957 to the respondents, the right of way over the appellants’ land was granted.

When Mr. Cloy died in July of 1921, the land he had retained, now owned by the appellants, passed to his widow Maude Cloy who was also his executrix. As executrix she conveyed it to herself as devisee under the will but inadvertently included in the conveyance the lands already conveyed by her husband to Mr. Lynch. To rectify this error Mrs. Cloy made a new deed to Mrs. Lynch, who had acquired the land on her husband’s death, and this deed made in April of 1926, included the grant of right of way over the strip of Mrs. Cloy’s land. In November of 1952, Mrs. Cloy transferred her land to her son Douglas Cloy and again through inadvertence omitted to make that conveyance subject to the right of way in favour of Mrs. Lynch. Douglas Cloy remedied this in March of 1958 by a quitclaim deed in favour of the respondents who by that time had become the owners of the adjoining land. In August of 1972, when Douglas Cloy sold his property to the appellants’ predecessors in title, he made the grant subject to the respondents’ right of way and, when they in turn sold it to the appellants in February, 1973, they likewise made their grant subject to the respondents’ right of way.

It is accordingly clear, so far as the chain of title to the respective properties is concerned, that the respondents took their property in 1973 subject to the right of way of the appellants over the strip of land in issue on this appeal and the appellants obtained their right of way down through the chain of title to their own property but also by express grant in Douglas Cloy’s quitclaim deed made in March of 1958.

The conduct of the owners #

The learned trial Judge made a number of important findings with respect to the use of the strip of land made over the years by the owners of the two adjoining properties.

(a) The respondents and their predecessors in title. Since the respondents’ property has always been used as a dwelling-house, the main use of the strip made by the owners of that property has been as a driveway. Up until about 1956, the respondents’ car was kept in the garage but since that time the garage has been used as a storage shed and the car has been left on the driveway at night. Although the respondent Mr. Keefer uses the car to go back and forth to work, it is also sometimes parked in the driveway during the day and so occasionally are the cars belonging to the respondents’ friends when they come to visit. The trial Judge found that in the 1960s a disabled car was left at the rear of the driveway for some four years.

The trial Judge found also that the Keefers on several occasions had put gravel on the driveway at their own expense. They also kept it free of snow in the winter-time. This may not be significant since they have a right of way over it and the Cloys closed down the store every winter and went to Florida.

As far as the grassy area to the west of the stone driveway is concerned, the evidence disclosed that the grass had for many years been tended by the owners of the respondents’ property, including the respondents themselves, and that the respondents occasionally held barbecues and picnics on it with no objection from the Cloys. The evidence that the Keefers made a skating-rink of part of the grassy area on three winters does not appear to be significant since it was when the Cloys were wintering in Florida. The evidence, however, that no objection was made by Mr. Cloy when in 1952 Mr. Keefer moved the garage located at the rear of his property over onto the rear of the strip in order to line it up with the driveway is clearly significant.

(b) The appellants and their predecessors in title. The appellants’ premises have always been used for business purposes, first in Martin Cloy’s time as a grocery store and later by Douglas Cloy as a marine supply store for vessels plying up and down the Welland Canal. Since 1972, when Douglas Cloy sold the property to the respondents’ predecessors in title, it has been used as a general variety store. Douglas Cloy was assisting his father in the business prior to the conveyance to Elzear Lynch and gave evidence on behalf of the appellants as to the use made by his parents and himself of the property from 1918 to 1972. The Cloys never lived on this property.

The strip of land was used by the Cloys in the early days to give access to an ice-house at the rear of the store. The ice-house was filled in the winter with blocks of ice cut from the Welland Canal. Deliveries were made from it originally by means of a horse and wagon and later by truck. In 1949 the ice-house was removed and a one-storey addition was built on to the rear of the store. The addition was used partly as an office and partly for the storage of soft drinks. Access to the addition was through a door to the west of the stone steps and landing which provided access to the apartment over the store. Soft drinks were delivered by truck to the storeroom. If there was a car parked in the driveway, the soft drinks would be taken by a small hand-cart; if the driveway was clear, the truck would drive up to the entrance door to make its deliveries.

Mr. Cloy testified that he never parked his car in the driveway but that trucks parked there occasionally when unloading supplies if the driveway was clear. Mr. Cloy’s customers also sometimes parked in the driveway for short periods of time when making purchases.

The tenants of the apartment above the store entered from the street by the concrete walk-way running alongside the driveway, but the one tenant who owned a car did not leave his car in the driveway. Moving trucks used the driveway and, when tenants were moving in or out, the Keefers always moved their car if it happened to be in the driveway at the time. The owners used the walk-way to visit the apartment. They also used a portion of the grassy area to get to and from the side entrance to the storage and office premises built on to the rear of the store in 1949.

Mr. Cloy testified that both he and his father had put gravel on the driveway over the years, but he acknowledged that the last time he had put gravel on was probably in 1956. Because of the store’s being closed in the winters from December to March every year when he and his family went to Florida, no trucks or customers’ cars would be parked in the driveway during the winter months. His evidence was that they had been wintering in Florida for the past 18 years.

The issue #

His Honour Judge Nicholls, after reviewing the evidence of user by both owners over the years, stated:

The possession [of the plaintiffs and their predecessors in title] was not consistent with the rights accruing from the specific grant of right of way but far exceeded them. Counsel for the plaintiff expressed the opinion that the grant of right of way matured into a possessory title.

He also stated:

The possession of the plaintiffs and their predecessors in title was open, visible and continuous for far more than the requisite number of years, but the question arises as to whether there was exclusive possession.

With all due respect to the learned trial Judge, I believe that the crucial question in this case is whether the respondents’ possession challenged in any way the right of the legal owner to make the use of the property he wished to make of it. This is not a case where the Keefers could be viewed as trespassers on their neighbours’ property so that any act of theirs on the property was a challenge to the constructive possession of the owners. Possession is not adverse to the extent it is referable to a lawful title: Thomas v. Thomas (1855), 2 K. & J. 79 at p. 83, 69 E.R. 701, per Sir William Page Wood, V.-C. The Keefers were on their neighbours’ property pursuant to their grant of right of way and, even if they exceeded the rights they had by virtue of the right of way, this would not necessarily mean that their right of way matured into a possessory title.

The use an owner wants to make of his property may be a limited use and an intermittent or sporadic use. A possessory title cannot, however, be acquired against him by depriving him of uses of his property that he never intended or desired to make of it. The animus possidendi which a person claiming a possessory title must have is an intention to exclude the owner from such uses as the owner wants to make of his property.

Viewed in this light the evidence that the Cloys never parked their car or truck on the strip of land, far from being helpful to the respondents’ case, is harmful to it. It shows that the Cloys never intended or wanted to use the strip for parking. Indeed, this is clear from the fact that they gave the owner of the adjoining property a right of ingress and egress over it. Similarly, the fact that the respondents created a skating-rink on the grassy area in the wintertime when the appellants were in Florida has in my view no real significance in terms of the ouster of the true owner. The true owner was probably quite content to give the Keefers full rein on the property while the store was not in operation. The trial Judge was obviously correct in his finding that, even when the appellants were operating the store, the respondents were using the strip for more than just a means of ingress and egress to their property. I do not believe, however, that this is the test for the acquisition of a possessory title. The test is not whether the respondents exceeded their rights under the right of way but whether they precluded the owner from making the use of the property that he wanted to make of it: Re St. Clair Beach Estates Ltd. v. MacDonald et al. (1974), 5 O.R. (2d) 482, 50 D.L.R. (3d) 650. Acts relied on as dispossessing the true owner must be inconsistent with the form of enjoyment of the property intended by the true owner. This has been held to be the test for adverse possession since the leading case of Leigh v. Jack (1879), 5 Ex.D. 264.

The onus of establishing title by possession is on the claimant and it is harder for a claimant to discharge this onus when he is on the property pursuant to a grant from the owner. It was held in Littledale v. Liverpool College, [1900] 1 Ch. 19, that acts done on another’s land may be attributed to the exercise of an easement, even an excessive exercise of an easement, rather than to adverse possession of the fee.

In Pflug and Pflug v. Collins, [1952] O.R. 519 at p. 527, [1952] 3 D.L.R. 681 at p. 689 [affirmed [1953] O.W.N. 140, [1953] 1 D.L.R. 841], Mr. Justice Wells (as he then was) made it clear that a person claiming a possessory title must establish (1) actual possession for the statutory period by themselves and those through whom they claim; (2) that such possession was with the intention of excluding from possession the owner or persons entitled to possession; and (3) discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession. If he fails in any one of these respects, his claim fails.

In my view the respondents fail in both (2) and (3) above. I do not believe that while the Cloys owned the strip of property in issue the Keefers ever intended to oust them from the limited use they wanted to make of it. The evidence discloses that the relationship between the Cloys and the Keefers was excellent and that there never was any trouble with the respondents when delivery trucks occasionally used the driveway for unloading supplies, when customers parked for short periods on the driveway when making purchases at the store, when tenants were moved in and out of the upstairs apartment and when they came and went to the apartment. Nor did Douglas Cloy take any exception to the Keefers parking their car in the driveway. Why would he, even if it were an excessive use of the right of way, if it did not impede him in the use he wanted to make of the property? His whole posture appears to have been that of an accommodating neighbour anxious to avoid any trouble. This is clear from the one contentious incident disclosed by the evidence, i.e., the incident when one of Mr. Cloy’s tenants in the upstairs apartment left his car in the driveway and had a “run-in” with Mr. Keefer. When his tenant reported this to him, Mr. Cloy told him to park somewhere else because “I do not want to fight with my neighbours.”

The evidence of Mr. Keefer was “I never had any problems with Doug (Mr. Cloy) as far as the drive-way was concerned.” He testified that on one occasion Mr. Cloy left his car in the driveway overnight so that he was unable to get his car out in the morning. He therefore pushed Mr. Cloy’s car out onto the road and Mr. Cloy apparently made no objection to his having done that. I cannot attach great significance to this as evidencing an assertion of possessory title by the Keefers since the Cloys, having given the Keefers a right of ingress and egress, had no right to block Mr. Keefer’s egress. Mr. Keefer was perfectly entitled to do what he did. I cannot find on the evidence that the Keefers’ possession was with the intention of excluding the Cloys from the limited use they wanted to make of the property. I think that the issue of a possessory title is something that has arisen since the Cloy’s property changed hands and the hitherto amicable relations between the adjoining owners disintegrated.

As far as proof of the discontinuance of possession by the owner is concerned, I do not believe that the Cloys did discontinue their possession of any part of the strip of land other than the portion at the rear occupied by the respondents’ garage. I think that with respect to that portion the constructive possession of the owners was displaced by the actual possession of the Keefers for more than the statutory period. However, as far as the balance of the strip is concerned, I think the owners made such use of it as they wanted. It was used as an access to the apartment above the store and to the entrance to the addition at the rear of the store. It is true that the Cloys may not have used the full width of the strip for this purpose, but the authorities make it clear that the constructive possession which a legal owner has of the whole of his property is not ousted simply because he is not in actual possession of the whole. Possession of part is possession of the whole if the possessor is the legal owner: Great Western R. Co. v. Lutz (1881), 32 U.C.C.P. 166. I find, therefore, that the respondents have not discharged the onus of proving discontinuance of possession of the strip (other than the portion occupied by their garage) by the owners for the statutory period.

I would allow the appeal and hold the respondents entitled to a declaration that the appellants’ title has been extinguished only with respect to that part of the land occupied by the respondents’ garage.

The appellants should have their costs of the appeal.