Conway v. Brookman

Conway v. Brookman

The enclosure by the adjoining proprietor, erected by mutual consent to protect both properties against cattle, did not dispossess the registered owner or prevent the owner from maintaining an action for trespass or from using the land for purposes other than those for which it had been enclosed; therefore the appeal was dismissed and the lower court judgment maintaining the plaintiff's action was affirmed.

Citation
(1903) 35 SCR 185
Parties
Plaintiff; Respondent: Conway; Defendant; Appellant: Brookman
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
3 December 1903
Procedural Posture
Appeal / Judgment by Supreme Court of Canada on Appeal From Supreme Court of Nova Scotia (in Banco)
Outcome
Appeal dismissed with costs; judgment of Supreme Court of Nova Scotia (in banco) affirming trial judgment maintained.
Legal Topics
Trespass, Title to Land, Fences, Enclosure, Possession
Source Language
English
Property Law Trespass Title to Land Fences Enclosure Possession

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Parties

Conway

Plaintiff; Respondent

Brookman

Defendant; Appellant

Procedural Posture

Appeal / Judgment by Supreme Court of Canada on Appeal From Supreme Court of Nova Scotia (in Banco)

Legal Issues

  1. 1 Whether the mere enclosure of land of another by an adjoining proprietor, by putting up a fence by mutual consent to protect both parties against cattle, can dispossess the legal owner or bar the owner's action for trespass
  2. 2 Whether such an enclosure limits the owner’s use of the land to the purposes for which it was enclosed

Ratio Decidendi

The enclosure by the adjoining proprietor, erected by mutual consent to protect both properties against cattle, did not dispossess the registered owner or prevent the owner from maintaining an action for trespass or from using the land for purposes other than those for which it had been enclosed; therefore the appeal was dismissed and the lower court judgment maintaining the plaintiff's action was affirmed.

Court Disposition

Appeal dismissed with costs; judgment of Supreme Court of Nova Scotia (in banco) affirming trial judgment maintained.

Orders

  • Appeal dismissed with costs.
  • Judgment of the Supreme Court of Nova Scotia in banco affirmed; plaintiff's action maintained with costs.