Francis v. Mosher

Francis v. Mosher

The adjudicator found on the balance of probabilities that the cedars and yews were on the Defendant's side so their removal was not trespass; the birch trunk was on the Claimants' land so the Defendant trespassed by directing its removal and is liable (nominal damages); the Claimants trespassed by piling rocks and damaging the Defendant's lattice, by removing temporary survey stakes, and were responsible for fence encroachment via their contractor; the Claimants' escalating conduct (loud music, lights, shouting, recording) amounted to actionable nuisance; damages were fixed within Small Claims statutory limits producing awards that net to $270 owing to the Defendant by counterclaim.

Citation
2025 NSSM 64
Parties
Claimant/defendant by Counterclaim: Thomas Francis; Claimant/defendant by Counterclaim: Jennifer Hamm; Defendant/claimant by Counterclaim: Linda Mosher; Defendants: Dog@Play Tree Services; Greg Mosher/The Village Carpenter
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
20 October 2025
Procedural Posture
Small Claims Court / Trial Decision (adjudication)
Outcome
Counterclaim allowed in part; net judgment for Defendant/Claimant by Counterclaim in the amount of $270 in favour of Linda Mosher; no costs awarded to either party
Legal Topics
Trespass, Nuisance, Damages, Boundary/survey, Costs/disbursements, Agency/indemnity
Source Language
English
Property Law Tort Law Civil Procedure Neighbour Dispute Trespass Nuisance Damages Boundary/survey +2 more

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Parties

Thomas Francis

Claimant/defendant by Counterclaim

Jennifer Hamm

Claimant/defendant by Counterclaim

Linda Mosher

Defendant/claimant by Counterclaim

Dog@Play Tree Services; Greg Mosher/The Village Carpenter

Defendants

Procedural Posture

Small Claims Court / Trial Decision (adjudication)

Legal Issues

  1. 1 Whether removal of cedar and yew shrubs constituted trespass
  2. 2 Whether removal of birch tree on Claimants' land constituted trespass
  3. 3 Whether Claimants trespassed by piling rocks and damaged Defendant's lattice

Ratio Decidendi

The adjudicator found on the balance of probabilities that the cedars and yews were on the Defendant's side so their removal was not trespass; the birch trunk was on the Claimants' land so the Defendant trespassed by directing its removal and is liable (nominal damages); the Claimants trespassed by piling rocks and damaging the Defendant's lattice, by removing temporary survey stakes, and were responsible for fence encroachment via their contractor; the Claimants' escalating conduct (loud music, lights, shouting, recording) amounted to actionable nuisance; damages were fixed within Small Claims statutory limits producing awards that net to $270 owing to the Defendant by counterclaim.

Court Disposition

Counterclaim allowed in part; net judgment for Defendant/Claimant by Counterclaim in the amount of $270 in favour of Linda Mosher; no costs awarded to either party

Orders

  • Claimants (Thomas Francis and Jennifer Hamm) pay Defendant (Linda Mosher) the net amount of $270.00
  • Claimants awarded $10.00 on their claim (birch tree trespass)