Lynds v. Nova Scotia (Attorney General)

Lynds v. Nova Scotia (Attorney General) Court Supreme Court Date 2006-05-10 Citation 2006 NSSC 147 Docket ST 09500 Judge/Registrar/Adjudicator Gruchy, David W. (Honourable Justice) Document Type Decision Relations Library Sheet - Lynds v. Nova Scotia (Attorney General) - 2006 NSSC 147 - 2006-05-10 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Lynds v. Nova Scotia (Attorney General), 2006 NSSC 147 Date: 20060510 Docket: ST 09500 Registry: Truro Between: James Filmore Lynds Plaintiff v. The Attorney General of the Province of Nova Scotia, representing the Crown in the right of the Province Defendant - and - John Whidden Intervenor DECISION Judge: The Honourable Justice David W. Gruchy Heard: April 19, 2006, in Truro, Nova Scotia Written Decision: May 10, 2006 Counsel: Peter Lederman, Q.C., for the plaintiff Linda Hupman, for the defendant Alain Begin, for the intervenor By the Court: [1] The plaintiff applied pursuant to the Quieting Titles Act, R.S.C. 382 for an order for the Quieting of Title to certain lands in Lower Harmony, Colchester County. Following the requisite period of published notice John Whidden intervened in the action and claims to be the owner of the lands claimed by the plaintiff. I have amended the style of cause of this action to reflect his intervention. [2] At my request a representative of the Attorney General was in attendance during this trial and I am thankful for that service. I consider the Attorney General to be the eyes of the court for title records and in preparation for the trial I was concerned that the defective paper title might be a live issue; hence I requested that counsel for the Attorney General be present during the hearing. [3] The statement of claim and supporting affidavit filed by the plaintiff set forth his paper title of certain lands. For the purposes of this decision it is not necessary to recite the entire title as the plaintiff has agreed that his title is defective. The so-called root of title, however, is of relevance with respect to the matter of possession and consists of a statutory declaration of Wilfred Guy Whidden, the father of the intervenor dated December 11, 1971, recorded at the Registry of Deeds at Truro on December 15th, 1971. Wilfred Guy Whidden is a predecessor in title to lands of the plaintiff. That statutory declaration is set forth in full as follows: I, WILFRED GUY WHIDDEN, presently of North River, in the County of Colchester, formerly, formerly residing at Harmony, in the County of Colchester, do solemnly declare as follows: 1. I am seventy-four years of age, a son of William S. Whidden, deceased, and I was born in the Harmony area and lived there up until about 1969 when I moved to my present address due to ill health; 2. THAT during the First World War I was living with my father, William S. Whidden, at Harmony aforesaid, and my father and I made an arrangement with Peter McG. Archibald, known to me as Greg Archibald, regarding the purchase of certain lands at Harmony aforesaid as set forth in Schedule “A” hereto. Under the terms of the verbal agreement, Greg Archibald was to buy a farm as described in Schedule “A” hereto at Harmony aforesaid and agreed to sell it to me for the sum of Fifteen Hundred Dollars ($1,500.00). I recall that my father gave Greg Archibald Five Hundred Dollars ($500.00) in my presence, and I was to pay the balance by monthly payments. I do not recall the exact arrangement regarding the monthly payments, and I did not make any monthly payments toward the property; 3. THAT shortly after my father gave Greg Archibald the sum of Five Hundred Dollars ($500.00) I understand that Greg Archibald left for the southern part of the United States and died there; 4. THAT I did not obtain a deed to the property, my father did not obtain a deed to the property and there was nothing in writing regarding the purchase; 5. THAT shortly after my father gave Greg Archibald Five Hundred Dollars ($500.00) as aforesaid I moved onto the property, and I lived on the property in question until about the year A.D. 1969; 6. THAT during my time on the property I farmed it, raised twelve children there, fenced it, I have been and continue to be assessed by the Municipality of the County of Colchester for the property, I have paid the taxes on the property and continue to pay the taxes on the property. Two of my sons are presently on the property with my permission; 7. THAT during my lifetime on the property in question it was never suggested to me by any person or persons that I did not own the property, no one ever came forward with any claim to the property and my right to be there was never questioned. I was never contacted by any of the representatives of the estate of Greg Archibald regarding the matter. 8. THAT to the best of my knowledge the description set forth in Schedule “A” hereto annexed describes the lands in question as aforesaid. AND I MAKE THIS SOLEMN DECLARATION conscientiously believing it to be true and knowing it to be of the same force and effect as if made under oath and by virtue of the Canada Evidence Act. SCHEDULE “A” ALL that certain lot, piece or parcel of land situate, lying and being at or near Harmony, in the County of Colchester and Province of Nova Scotia, now or formerly bounded and described as follows: On the north by lands owned or occupied by Harvey Curtis, formerly owned or occupied by one Reid; On the east by lands owned or occupied by Donald MacKenzie, formerly owned or occupied by one Mary Johnson; On the south and west by lands now owned or occupied by one Jack Whidden, and formerly owned or occupied by one George Gratto, to contain (40) acres, more or less. ALSO a lot of woodland at Harmony aforesaid to contain thirty (30) acres, more or less, BOUNDED on the north by Jack Whidden, formerly George Grath; On the east by lands of Jack Whidden aforesaid, formerly James Millen; On the south by the Eddy Company, formerly one MacDonald; and on the west by Cecil Smith, formerly by Sandy Fraser. [4] The plaintiff alleges that the lot in question is contained in the first lot described in Schedule “A”. [5] The plaintiff’s affidavit sets forth that the lands claimed by him have been assessed to his name and taxes paid to the Municipality of Colchester since 1998. He avers that he knows of no adverse claims to the property and that his claim to property rights is based on occupation of it by him and his predecessors in title for a period in excess of 80 years. [6] The plaintiff filed the affidavit of Emerson C. Keen, Nova Scotia Land Survey, dated March 27, 2001, in support of this application which identifies the abutters of and the description of the lands claimed; it does not identify the historic source of that description. Mr. Keen did not testify at trial. [7] The statutory declaration of Wilfred Guy Whidden fails to disclose any acceptable paper title to the land referred to therein. It fails to show the title of Peter Mc.G. Archibald, it fails to show that Peter McG. Archibald bought a farm as described; it admits that no memorandum in writing existed concerning the transaction referred to and further shows that the purchase apparently contemplated was never completed. The value, if any, of the declaration is with respect to occupation of lands, but that occupation is not particularized as to its physical extent. [8] The plaintiff’s pre-trial brief sets forth that his late father, Filmore Lynds, applied to quiet the title to certain lands, including the lot in question, in 1988, but he discontinued that action with respect to the lot in question when the present intervenor objected. He acknowledges that his paper title is defective as no conveyances prior to 1971 of it or were found. He relies, however, on the statutory declaration to show possession. On the other hand, the plaintiff admits the intervenor has a good paper title to the lands as described in his deed, but does not admit to the physical location of those lands. [9] The plaintiff’s position is that the questions to be decided by this action are whether he can establish on a balance of probabilities ownership of the lot in question (referred to as Lot 84-3) by virtue of possession, whether that possession coincides with the boundaries established by the survey conducted by G. Edward Hingley, and whether that possession is sufficient to dispossess or to oust the intervenor’s right, if any, to the lot. [10] The plaintiff’s position with respect to the evidence of possessory title is candidly set forth in his pre-trial brief as follows: With regard to evidence of possession, it seems likely that there is precious little to be offered by either side. Nothing much has been done with this lot for at least 35 years. Mr. Whidden will testify (and did so testify) that he had wood cut off of it prior to 1970. Any usage since then has been sporadic at best. [11] The plaintiff’s pre-trial brief continues as follows: Given that possessory title cannot be established by either party, it would seem that the case boils down to one of boundary definition. Does Lot 84-3 historically form part of the lot obtained by Filmore Lynds from Wildred Whidden in 1971, or is it historically part of the so-called Milne lot conveyed to John Whidden and his wife in 1968. The legal descriptions are of absolutely no assistance in making this determination, being vague to the point of uselessness. The plaintiff will be relying on the expert evidence of Ed Hingley on this point. [12] Mr. Hingley gave evidence during the trial and I will refer to it below. [13] John Whidden, by his affidavit filed with respect to this matter, claims to have lived adjacent to or nearby the lot in question virtually his whole life. He has filed the abstract of his title through which he claims to be the owner of the lot in question. As the plaintiff has admitted that the paper title of lands described in the intervenor’s deed is good, it is not necessary to set it forth in details. [14] The intervenor’s root of title is a Warranty Deed dated October 26, 1898 which conveyed two lots of 90 and 30 acres respectively. These lots were eventually conveyed to the intervenor’s father, Wilfred Whidden, in 1952 and then conveyed, inter alia, by Wilfred Whidden to the intervenor on October 17, 1968. Various lots were sold and he claims that the residue of lands conveyed to him by his father contains the lot in question. [15] A central question therefore is whether the conveyance by the intervenor’s father, Wilfred Whidden to the plaintiff’s father, Filmore A. Lynds on November 9, 1971 contained the lot in question. The description used in that conveyance was that of the first lot described in the statutory declaration of Wilfred Whidden. [16] Mr. Hingley gave evidence on behalf of the plaintiff. He explained that he first surveyed the property in 1979 for the plaintiff’s father, Filmore A. Lynds. [17] Mr. Hingley described his “survey method” in his report as follows: All of the above surveys were carried out by traversing the existing boundary evidence and calculating the resulting bearings and distances from this field of traverse. The various boundaries were found to be marked by fences, both stone and wire, as well as blazed lines. The survey was conducted in a very open manner and most of the boundaries required clearing of the brush with the use of a power saw and axes. All corners were marked with survey markers or the existing corner marker found was retained and shown as such on the resulting survey plan. [18] With particular regards to the lot in question, Mr. Hingley explained in his written report as follows: Eastern Portion of Lynds Property: The survey of the portion of the property that extends Easterly along the South boundary of land of the Nova Scotia Farm Loan Board, as occupied by Donald MacKenzie, was surveyed at the time of my 1984 survey. This portion of the Filmore A. Lynds property was marked by a wire fence along the North and East boundaries and by a blazed line along the South boundary. The land use for this portion of the property had the same appearance as the rest of the Filmore Lynds property that was East of the Lower Harmony Road. During our survey Filmore A. Lynds accompanied us and he was with us as we surveyed the portion of his lands now in question. Mr. Lynds did not indicate that there was a claim to any portion of the land within our survey. During the course of my survey there was no representation made to me, by anyone, that there was any claim to a portion of the land contained within the boundaries I was establishing for the Filmore A. Lynds property. The survey, which I conducted for Filmore A. Lynds, went along a blazed line that I understood was the North boundary of land of John Whidden and then South between two found corners being the Northwest and Southwest corners of the said John Whidden property. These boundaries were cleared and traversed in the same manner as all other boundaries on the survey and there was no objection made as to their validity of these lines, during or after the survey conducted by me. [19] Mr. Hingley’s conclusion in his written report was as follows: Conclusion There is no question that the legal description that is contained within the Indenture whereby Filmore A. Lynds had acquired the property at Lower Harmony, left much to be desired when attempting to define the extent of the title on the ground. The various boundaries had been long marked with very good evidence of occupation and these boundaries were used to survey the extent of title and shown on the various survey plans. The corners were upgraded with survey markers, when required, and the boundaries cleared and the existing evidence noted. There was no representation made to me by Filmore A. Lynds or any adjoiner that the boundaries that I was defining included lands within them that were claimed by others. I had no queries from any adjoiner and knew nothing of any claim prior to that being made by John Whidden in 1988. [20] It is clear to me, based on Mr. Hingley’s written report and his testimony, that he relied extensively on the representations made to him by Filmore A. Lynds of his ownership of the property. It is also clear to me and I conclude as fact that Mr. Hingley did not research ownership of adjacent properties in order to verify the accuracy of his assumptions or of the representations apparently made to him by Filmore Lynds. [21] I accept as fact that Mr. Hingley followed certain lines in performing his survey. It was not clear, however, from his evidence who had established those lines or for what purposes. Similarly, I accept as fact that Mr. Hingley found certain boundary markers, but again, it is not clear who set those markers or the purpose of them. [22] Mr. Hingley’s earlier surveys of the property were for the purpose of the Quieting Titles application undertaken by the plaintiff’s father. That application included the lot in question. When the intervenor objected to the application, Mr. Lynds, senior, discontinued it with respect to the lot in question. That Quieting Titles application proceeded and Mr. Lynds, senior, obtained a certificate for the land for which he had made the application, except the lot in question. [23] In oral testimony Mr. Hingley explained that his first contact with the lands of Filmore Lynds was in 1979 when he surveyed Mr. Lynds’ property for the purpose of creating a sub-division. He explained he then found certain boundary markers which he used in defining a sub-division of what later became the subject of the Filmore Lynds Quieting Titles application. He acknowledged that certain of his identification of abutting land ownership shown on the plan dated September 11, 1979 (Exhibit #2) was in error, but which had no real effect on the subject or purpose of the survey he was then conducting. [24] In 1984 Mr. Hingley again surveyed the property of Filmore Lynds for the purpose of the first application for Quieting Titles. On that occasion he surveyed what he described as “Lot 84-1" being an area of 45.3 acres and which included the lot in question. The resulting plan (Exhibit #3) shows the lot in question as a large “jog” eastward in excess of 900 feet from the eastern boundary of the main lot. It was upon that plan and resulting description that the late Filmore Lynds apparently relied in his application to quiet the title. [25] As a result of the intervention in that application by the present intervenor the “jog”, consisting of 8.8 acres, was excluded from the application. That lot was identified in the plan as lot 84-3. [26] Mr. Hingley acknowledged that he had made an error in his notation as to the ownership of land abutting the south line of the lot in question; he identified that land as owned by Colin Matheson, whereas in fact, he said, it was owned by John Whidden. [27] Mr. Hingley said that as he surveyed the south line of the “jog” he found it to be relatively straight and nearly parallel to the north line thereof. He said that Filmore Lynds had shown the boundaries to him and had accompanied Mr. Hingley and his crew as the survey was performed. He emphasized that in performing the survey he and his crew openly performed that work and made a lot of noise which would normally attract attention. He further emphasized that neither the intervenor nor anyone else objected to the survey being performed. He said the south line in particular, being closest to the residence of Mr. John Whidden, had to be “brushed out” with the use of power saws as it had become considerably overgrown. He acknowledged he had not given Mr. Whidden or anyone else notice of his intention to perform this survey, as it is not the usual practice to do so. [28] Mr. Hingley was shown a plan of sub-division of lands of John R. Whidden prepared by another surveyor in October, 1985, when John Whidden conveyed certain lands to his son. That surveyor had identified what apparently is the lot in question as lands of “Philmore” Lynds. [29] As these various plans are available to the public at the Registry of Deeds and are apparently relied upon as accurate (or at least referred to) by other surveyors, and as Mr. Hingley’s plan of July 1984, would have been available to the surveyor of the sub-division of lands of John Whidden, which identified the owner of the lot in question as Filmore Lynds, I have placed little significance on the notation of abutting land ownership in the plan of October, 1985. [30] Mr. Hingley was shown certain aerial photographs of the area containing the lot in question and he explained the changes in the growth of the trees and the development of property lines from 1974 to 2004. While of interest, these photos did not appear to have any evidentiary impact on the questions to be addressed. [31] During the examination and cross-examination of Mr. Hingley, references were made by counsel to certain “Notes and Commentary re Lynds land claim” prepared by James Richards, Q.C., a partner of the intervenor’s counsel. These notes contain a detailed examination of the titles of the lot in question and of abutting land ownership. Upon questioning by the court as to use to made of these notes Mr. Lederman on behalf of the plaintiff agreed that the facts set forth by Mr. Richards could be relied upon, but the opinions expressed should not be accepted as evidence. When these notes and comments were put to Mr. Hingley, he replied that they made no difference to his ultimate opinion as to title. He said as far as he was concerned lot 84-3 belonged to Filmore Lynds and in particular, no contrary representation by anybody else had been made and Mr. Lynds had been clear in his claim. Mr. Hingley said that despite Mr. Richard’s notes he had no reason to doubt his expressed opinion. [32] On cross-examination Mr. Hingley said he spent some time at the Registry of Deeds, but made no record or notes of the time so spent or of his observations of the history of abutting property ownership. He relied on Mr. Lynds’ statement of his ownership of the property and the validity of the property lines observed on the ground. When Mr. Hingley’s remark in his report that the descriptions of the property “left much to be desired” was put to him, he agreed that they were very poor but he explained such was often the case in dealing with lands of this sort. He agreed he had not done the type of research of neighbouring properties as Mr. Richards reported in his notes. He was cross-examined carefully about the description of the land as conveyed to Filmore Lynds in 1992 as contained in the statutory declaration of 1971, and the ownership of adjacent properties used in that description. It was pointed out to Mr. Hingley that the acreage called for by the conveyance to Mr. Lynds was approximately 8 acres less than that called for by his survey. He replied that such a change in acreage was “not a big deal”. He explained that descriptions of the sort used herein would result only in estimates of acreage which should not be relied upon. [33] Mr. Hingley was cross-examined on the factual basis of Mr. Richards’ conclusions and agreed with them. I have examined Mr. Richards’ notes and commentary and have accepted his factual findings. I have disregarded his expressions of opinions. [34] On cross-examination Mr. Hingley agreed that his plan of September 11, 1979 (exhibit # 2) contained a significant error in his identification of lands of Jack Whidden. He said he realized after the preparation of the plan that he was wrong in his conclusion. With respect to the plan of July 20, 1984 (exhibit #3), as revised by exhibit #5, he agreed that there was a “glaring error” in his identification of lands of Tom Matheson and that in fact the intervenor was the owner of those lands. [35] Mr. Hingley did not identify the origin of the various boundary markers he observed. In particular, he was unable to say who blazed lines, placed monuments at various spots or constructed or maintained a wire fence. He agreed that a wire fence might be a boundary fence or a pasture fence. He made no inquiries of the older residents of the area and in particular, of Mr. Whidden who obviously would have been knowledgeable and involved in land ownership in this area. [36] The plaintiff gave evidence. He had left home which was in the area of the land in question at the age of 16 and moved back there at age 18 for about a year. His knowledge of the lot in question was sparse. He said that occasionally he and his family took some wood off of it and occasionally used it as a source of water for cattle. He said he had paid taxes on the property for a number of years. He acknowledged that Mr. Whidden had “put a stop to cutting” of the property in early 1980's, but said that as far as he knew there was “no clear owner to it”. He acknowledged there had been a dispute concerning the property in question which arose just after his father had bought it in 1979 or 1980. [37] Mr. Lynds could not say who built the fences or placed boundary markers around the property and said simply, “my father bought it and I want it.” He was unable to identify the abutting property owners referred to in the description of the lands of his deed. [38] John Whidden gave evidence. He is seventy-eight years of age and has been a resident of the area of the property in question all his life. He is a woodsman and is familiar with the properties of the area. [39] Mr. Whidden was examined about the ownership of properties abutting the plaintiff’s property and identified the 1972 owners of them, that date being the date of his father’s deed. He said he was familiar with the boundaries of the various properties abutting the lot in question. He said the property surrounding the lot and the lot itself were historically pasture land and had been allowed to grow up in forest. He purchased the property from his father and he and his brother cut the wood off of it in about 1968. Prior to purchasing the property he and his father had “borrowed” it from the previous owner, Millen, for the purpose of pasturing cattle. He identified, by use of the aerial photographs, the location of certain fences which he had placed on the property for the purpose of containing cattle while watering. He said he and his father fenced the property in question to allow the use of the property for that purpose. He blazed and fenced the south line of the lot for that purpose and repaired the fence almost every spring. [40] Some time after he purchased the property - he was not sure when - he saw somebody cutting wood on the north portion of it and told him to go away. The cutting was stopped. [41] After he cut the wood off the lot he did not made further use of the it. He said he has paid taxes on the property ever since he purchased it. [42] Mr. Whidden acknowledged that he saw a survey being conducted on the property, but did not know who they were and did not interfere with them. He was not sure if it was Mr. Hingley. He said he talked to a surveyor at the time but merely “passed the time of day” with him and really didn’t care what they were doing as they appeared to be clearing out his line which was, of course, a benefit to him. [43] Mr. Whidden said that when Filmore Lynds purchased the property from his father he and Mr. Lynds went over various property lines together. He said he did not tell Mr. Lynds that the lot in question had been conveyed to him - it was simply never mentioned. [44] Conclusions: The Court’s role in this application is found in the following sections of the Quieting Title Act, SNS.382: Certificate of title after trial 12 (1) Where, after the trial or determination of all issues of law and fact between the parties, it appears that a party claiming a certificate of title is entitled to some property right in the land, whether it is the property right claimed or not, the court or a judge may order that a certificate of title be issued to the claimant for the property right to which the claimant has been found entitled. (2) Where it appears that the plaintiff or the plaintiff’s predecessors in title have been in possession as owners or part-owners for twenty years prior to the commencement of the action and during that time a person, whether or not the person’s whereabouts are known, has or may have an interest in the lands forming the subject-matter of the action and such person has not received any benefit, paid any expenses or exercised any proprietary rights in respect to said lands, the judge may order subject to subsection (3) that the interest of such person vest in the plaintiff. (3) Where the judge finds that a person, other than the plaintiff, has an interest in the lands, the judge shall determine the value of that interest and shall direct that the plaintiff pay into court such amount, for such period and on such conditions as will secure the interest of such person. (4) Where as a result of the action the land is sold by order of the court and a certificate of title is claimed in the action, the court may order that a certificate of title be issued to the purchaser for the property right to be conveyed by the sale. R.S., c.382, s.12 Burden of proof 13 Nothing in this Act changes the burden of proof upon the parties in actions of trespass to land, of ejectment or for the recovery of land, or in the other actions in which a claim for a certificate of title may be joined under this Act, nor is it required that any lesser or greater title or possession be shown than was required on the twenty-fourth day of March, 1961, in such cases, but the claimant may establish under this Act whatever title the claimant has against the Crown and against persons generally. R.S., c.382, s.13. The burden is upon the plaintiff to show that he has “... some property right in the land”. The first question is, therefore, whether the conveyances from Wilfred Guy Whidden to Filmore Lynds and from Filmore Lynds to James Filmore Lynds conveyed the lot in question. I am not satisfied they did. The description of the land conveyed is vague and requires findings of the ownership of adjacent properties as at the date of the drafting of the description so as to locate it. The plaintiff has failed to satisfy me that the description contained the lot in question. The lot in question, if it was contained in the description used, would have been a large “jog” to the east of the eastern boundary of the main lot - a “jog” containing over 8 acres and extending over 900 feet from that eastern boundary. I cannot accept that the drafter of the description would have omitted such an obvious feature of the lands conveyed. Additionally, even if the description used could be said to contain the lot in question, the title is defective. A defective title, however, may be cured by possession. As against the holder of paper title a plaintiff exercising possession, would be a trespasser. Mr. Justice Jones of the Nova Scotia Court of Appeal, in Conrad v Nova Scotia (Attorney General) [1994] N.S.J. No. 564, addressed the type of possession required to extinguish a paper title and referred to various leading cases on point. The plaintiff’s acts of possession in the case before me fall far short of establishing a claim to title; they consist of vague claims of cutting wood and of watering cattle. The surveying activity carried out by Mr. Hingley was, at best, “equivocal, occasional (and) for a special or temporary purpose”. (see Sherren Pearson (1888), 14 S.C.R., 581) The fact the intervenor did not object to the activity is not determinative of anything. The plaintiff submitted, however, that he had established constructive possession of the lot in question. The Nova Scotia Court of Appeal addressed that concept in Mason v Nova Scotia (Minister of Justice)(1999), 176 N.S.R. (2d) 321, and Flinn, J.A. , referred to various authorities, including Anger & Honsberger’s Law of Real Property (2nd Ed) and Nova Scotia Real Property Practice Manual, 1998, by C.W. MacIntosh, Q.C., at paragraph 7.1D. Warner J. summarized the law with respect to constructive possession in Board of Trustees of Common Lands v Tanner (2005), 236 N.S.R. (2d) 295 (S.C.): 50 As stated, the nature of the possession is a question of fact in each case and depends on the nature of the land and many variable circumstances. The Limitations Act does not apply if the land is vacant as the legal owner is deemed to be in constructive possession. There is a requirement that the claimant actually possess, or use, or occupy the land claimed. 51 There is an exception called constructive possession. It applies when the person claiming possession claims not as trespasser simpliciter, but rather where the trespasser claims through colour of title; that is, where the possessor’s title document, whether valid or not, describes an identifiable lot and the possessor occupies a part of it with the bona fide belief in, and intention of occupying pursuant to, the title document; in this instance, he or she may acquire constructive possession of the whole. I accept as factual and truthful the testimony of the intervenor. As opposed to his testimony I found the testimony and evidence of the surveyor, Mr. Hingley, to be somewhat vague. I am not satisfied on the evidence that the plaintiff has a colour of title to the lot in question, that the lot in question is identifiable or is part of a larger lot which the plaintiff and his father possessed. No constructive possession has been proved. The application is hereby dismissed with costs to the intervenor. The parties may make submissions to me in writing with respect to the quantum of the costs. __________________________________ The Honourable Justice David W. Gruchy