MacEachern v. Jamieson

MacEachern v. Jamieson

Because there was a substantial dispute of fact about the duration of possession and s.74 grants the claimant a ten‑year period after registration to assert adverse possession, the correct procedural remedy was to convert the interlocutory application into an originating action under Rule 37.10(e), with the Notice...

Source-derived case information.

Citation
2007 NSSC 42
Parties
Applicant/plaintiff: Robert MacEachern; Applicant/plaintiff: Marlyn Mury; Respondent/defendant: Frank Jamieson
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
9 February 2007
Procedural Posture
Civil Property/trespass/adverse Possession / Interim Application (interlocutory) Converted to Originating Notice (action)
Outcome
Application continued as originating notice (action)
Legal Topics
Adverse Possession, Prescription, Injunction, Continuation of Application as Action, Civil Procedure Rules 37.09 and 37.10, Land Registration Act S.74
Source Language
english
Property Law Civil Procedure Land Registration Adverse Possession Prescription Injunction Continuation of Application as Action Civil Procedure Rules 37.09 and 37.10 +1 more

Source-derived case record

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Parties

Robert MacEachern

Applicant/plaintiff

Marlyn Mury

Applicant/plaintiff

Frank Jamieson

Respondent/defendant

Procedural Posture

Civil Property/trespass/adverse Possession / Interim Application (interlocutory) Converted to Originating Notice (action)

Legal Issues

  1. 1 Whether the defendant has established adverse possession sufficient in duration to defeat the registered owner's title under the Land Registration Act s.74
  2. 2 Whether the application should be heard on oral evidence or converted to an action because of a substantial dispute of fact
  3. 3 Whether the defendant's claim falls within the ten-year window after registration provided by s.74

Ratio Decidendi

Because there was a substantial dispute of fact about the duration of possession and s.74 grants the claimant a ten‑year period after registration to assert adverse possession, the correct procedural remedy was to convert the interlocutory application into an originating action under Rule 37.10(e), with the Notice and affidavits to stand as pleadings and liberty to amend.

Court Disposition

Application continued as originating notice (action)

Orders

  • Application continued in Court as if begun by an Originating Notice (Action)
  • The Notice and Affidavits (and declaration) to stand as pleadings