Fancy v. Coade Estate

Fancy v. Coade Estate Court Supreme Court Date 2021-01-29 Citation 2021 NSSC 31 Docket Halifax, No. 492851 Judge/Registrar/Adjudicator Coady, Kevin (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Fancy v. Coade Estate, 2021 NSSC 31 Date: 20210129 Docket: Halifax, No. 492851 Registry: Halifax Between: Jeffrey Fancy Applicant v. Dureen Coade, in her Capacity as Personal Representative for the Estate of the Late James P. Coade Respondent TRIAL DECISION Judge: The Honourable Justice Kevin Coady Heard: November 9-10, 2020 in Halifax, Nova Scotia Written Decision: January 29, 2021 Counsel: Dianna Rievaj, Counsel for the Applicant Matthew McEwen, Counsel for the Respondent By the Court: Background [1] Jeffrey Fancy filed an Application in Court pursuant to Civil Procedure Rule 5.07. He seeks the following relief: The applicant is applying to the court for an order under section 35 of the Land Registration Act 2001, c. 6., s. 1, that the Registrar General of the Halifax Land Registration correct the parcel registers for two lots of vacant land in Harrietsfield, Nova Scotia along the Old Sambro Road known as PID 40071516 and PID 41472028 by removing the Respondent, Dureen Coade’s interest and replacing hers with the Applicant, Jeffrey Fancy as sole owner in fee simple of the Properties. It is undisputed that paper title to the subject property lies within the Respondent. The late James P. Coade inherited the property in 1969. Mr. Fancy is claiming ownership by way of adverse possession. After the 2018 death of Mr. Coade, the property was conveyed to his estate. In anticipation of selling, the Respondent migrated the property pursuant to the Land Registration Act. Mr. Fancy was not given notice. On the day the “for sale” signs went up, Mr. Fancy appeared at the property claiming ownership. [2] The Applicant’s principal position is set forth at paragraph at paragraph 159 of its brief: It is respectfully submitted that after Mr. Coade effectively abandoned the Harrietsfield Property in the late 1970s, the Fancy family staked a claim which eventually crystallized into an actionable interest. The clear and cogent evidence presented by the Applicant demonstrates his open, notorious, continuous, exclusive, and adverse possession of the Property since at least the early-1990s, which is sufficient to meet the test for adverse possession in Nova Scotia. The Applicant’s alternative position is set forth at paragraph 162 of its brief: 162 In the alternative, if this court determines that the Applicant does not meet the test for adverse possession, then either the doctrine of unjust unrichment or section 76(2) of the Land Registration Act must be applied to either require the respondent to sell the properties to the Applicant in a matter [sic] the Court deems fair (s. 76(2)(c)) or the Respondent must compensate the Applicant for the lasting improvements for the amount by which the improvement has enhanced the value of the land to the owner of it, in the amount and on such terms as the court thinks just (s. 76(2)(d)). [3] The Respondent’s position is set forth at paragraph 77 of its brief: 77 Mr. Coade may have been an absentee owner of the Coade Properties. But an [sic] holder of legal title such as Mr. Code is not required to be in physical possession of land to be in legal possession of that land. At all times where no one else is in physical possession of the land, the title owner is by default in possession. The Respondent further argues that Mr. Fancy’s use of the subject lands amounted to no more than a “series of unrelated trespasses”. It considers this application as nothing more than an attempt to steal this land. Legal Title: [4] The legal title to the subject property is well established. It was originally part of a 150-acre grant given to one John Moody in 1793. In 1955 it was sold at a tax sale to John Keddy. It 1966 Mr. Keddy conveyed the property to Alice Keddy. In 1968 the John Moody grant was transferred to James P. Coade and Donald Coade by the Will of Alice Keddy. In 1969 James P. Coade acquired full ownership of the John Moody grant from Donald Coade. [5] In 2000 Mr. Coade subdivided 39.9 acres from the original grant and conveyed it to J&K Developments Ltd., a company wholly owned and operated by the Applicant, Jeffrey Fancy. In 2018 Mr. Coade died. In 2019 the remainder was subdivided creating the two lots in dispute. They were then listed for sale. Nature of Disputed Lands [6] In order to resolve this claim for adverse possession it is necessary to appreciate the topography of the disputed lands. The two lots in dispute amount to roughly 100 acres and are adjacent to each other. The disputed lots are located between Harrietsfield and Williamswood along the Old Sambro Road. The surrounding area is a mix of residential, commercial and light industrial structures. [7] The lots in question are wooded and without structures. Most Nova Scotians driving by would not take notice and would consider it “scrub land”. The trees are stunted and there are many rock formations. All a passerby sees when passing the property is low-grade trees and some excavations. While the property may be appealing to the outdoorsman, it would not attract the attention of most. The majority area of the lots cannot be seen from the Old Sambro Road. It is not suitable for agriculture or forestry purposes. Its only commercial use has been harvesting fill. Both Mr. Coade and Mr. Fancy used it for that purpose at different times. The properties’ greatest appeal is the two lakes in the interior of the property. If it were not for the roads and trails installed by Mr. Fancy, the land would present as uninhabitable. The Coades and the Land: [8] James P. Coade was born in Halifax in 1939. After his education he joined the Canadian Armed Forces. He spent his entire career there as an accountant and retired as a Major. He had many postings, including Chatham, New Brunswick in the 1970s. Eventually he settled in Ottawa. In his late years he developed dementia. He died in 2018. [9] Mr. Coade acquired the property outright in 1969. He held the land for the purpose of allowing companies or individuals to remove fill from a pit. In fact, in 1975 he leased the area to Mr. Fancy’s uncle for the purpose of removing fill. The last time Mr. Coade stepped foot on the property was between 1976 and 1980 when his family was posted in Chatham. He paid the property taxes from 1969 to the present. The evidence clearly establishes that, since 1980, Mr. Coade was an absentee landowner. It is also clearly evident that the only activity he engaged in was the removal of fill. [10] The lease agreement with Bernard Fancy was not without difficulty. In the mid-1970s Mr. Fancy’s leased activities caused environmental problems and the Province issued a Stop Work Order. Mr. Fancy wrote to Mr. Coade seeking assistance with the problem. Mr. Coade responded, indicating it was Mr. Fancy’s problem and he could not assist him. Mr. Coade sought payment for any fill removed prior to the Stop Work Order. The lease expired on May 7, 1977. [11] In late 1976 Mr. Coade was advised by his solicitor that Bernard Fancy was stealing fill from the property in contravention of the Stop Work Order. He was advised that if something was not done to stop Fancy’s company from stealing more fill, he would not have any land left. He was advised to fence off the property and to post signs and to pursue Bernard Fancy for payment of fill removed without Mr. Coade’s permission. [12] In addition to the fill issues, Mr. Coade had to contend with unknown persons dumping old vehicles, machinery and demolition materials at the site. The neighbors complained, requesting “to clear up the blight at the site”. Mr. Coade was advised to take some action. Obviously, Mr. Coade was deterred by cost until 1998 when he placed a number of boulders to prevent trespassers from dumping debris in the pit area near the road. [13] Also in the late 1970s the Harrietsfield and Williamswood Ratepayers Association (“the Association”) was permitted to remove fill for the purpose of developing a community recreation area. In 1988, Mr. Coade and the Association were involved in discussions about a land swap. The Association was exploring the possibility of building the facility in the pit area near the Old Sambro Road. Such a transaction never occurred. [14] On May 15, 1998 Halifax Regional Municipality wrote to Mr. Coade, as follows: On 17 April 1998, an inspection of your property revealed the premises to be unsightly due of [sic] illegal dumping on the vacant land. The vacant land is unsightly due to the presence of excessive amounts of building materials (shingles, siding and windows) appliances, automotive parts, derelict vehicles which have been burnt, propane tanks, refrigerators, domestic garbage, paint cans, a Doberman carcass, oil tanks, various pieces of steel, tires and various wooden debris located throughout the entire vacant parcel of land. It is recommended by our office that the vacant parcel of land be blocked at the driveway entrance to prevent the public from dumping on your property. Shortly thereafter Mr. Coade paid Nicholson’s Salvage Yard of Harrietsfield $1,725 for the removal of the aforementioned garbage and “trenching entrance and placing rocks to block entry”. Mr. Fancy’s evidence was that between 1980 and 1986 his father, Lewis Fancy, used the property for recreational and commercial purposes. He testified that he used the land for similar purposes between 1986 and the present. [15] The evidence of Paul Coade, which I accept, speaks of his father’s intentions in relation to the property. He confirms that when he attended at the property in the late 1970s, there was a number of junk cars on the property. He stated, “There were enough that I remember thinking the land was or used to be a junkyard.” Paul Coade also testified that when his father needed resources, he would sell a portion of the Harrietsfield property. One such transaction involved the sale in 2000 of a portion of the parcel to Mr. Fancy’s company, J&K Developments Ltd. [16] Paul Coade testified that it was always known that the property would be sold “after my father’s death” and that the family would be “set for life” after the property sold. Once James Coade died in 2018, his estate took steps to achieve that objective. The Fancys and the Land: [17] Mr. Fancy filed several affidavits in support of his adverse possession claim. In his February 13, 2020 affidavit he sets out his “historical use” as follows: 7. Before I took possession of the Property, it was my father, Lewis Fancy’s and before that it was my uncle, Bernard Fancy’s. 8. Until the Coade family made a claim for the Property, I had no reason to look into the details of how the Property came to be in our family. 9. As long as I can remember, the Property was family land. My understanding was that my uncle Bernard Fancy got the rights to the land years ago from a man who lived in Ontario. That fellow had inherited it an had no use for it. My uncle worked the Property, including selling fill from the Pit, for a number of years then gave the Property to my father, Lewis Fancy in a land swap in the mid-1980s. My father worked the property, including selling fill from the Pit, for a number of years as well. In about 1990, my father stopped using the Property and I took over. My father and I never did any formal paperwork in relation to the Property. I figured I’d sort that out when he died. 10. I was not aware of any lease or agreement between my uncle and Mr. Coade until I was given a copy of correspondence from the 1970s from the Respondent’s lawyer. 11. I am not aware of any lease or agreement between my father and Mr. Coade. 12. Prior to being approached by the Coade family’s real estate agents in September, 2019, I believed the Property belonged to me and my father. Mr. Fancy’s testimony was that for the last 40 years he treated the land as his own. He stated they walked, biked, fished and swam on the property. He testified about putting up gates and signage, as well as removing brush, dead trees and garbage. He testified that he built a network of wood roads as well as two boat launches. He acknowledged the family took away fill for commercial purposes. [18] There were six affiants in addition to Jeffrey Fancy. Justin Fancy is Jeffrey Fancy’s son. He essentially confirms his father’s evidence regarding land use. He testified that Jeffrey Fancy erected a steel gate at the entrance to the property and posted “No Trespassing” signs. [19] Liam McKellar is an employee of Jeffrey Fancy. He testified to building roads on the property and removing fill and topsoil. He confirms Jeffrey Fancy’s use evidence. Jeff Conway is a 20-year employee of Jeffrey Fancy. He stated that the area has always been known as “Fancys’ land”. He was involved in the early 1990s, building roadways and trucking fill in and out of the property. At paragraph 23 of his affidavit, Mr. McKellar stated, “I help Jeff Fancy keep an eye on the property and would report to him if I ever saw any trespassers.” He used the property for recreational purposes, with Mr. Fancy’s permission. [20] Edwin Morash is a long-time friend and neighbor of Jeff Fancy. He testified to using the property for hunting and other recreational activities, with Mr. Fancy’s permission. He stated that he operated heavy equipment on the land and assisted with the boat launches. He stated that Mr. Fancy gave him a key to the gate. At paragraph 15 of his affidavit he states, “I’m retired now and I help Jeff keep an eye on the property.” He further states, at paragraph 19, “I would never let anyone on the property without clearing it with Jeff first.” [21] Gary Clements is a long-time friend of Jeffrey Fancy. While he lives in Ottawa, he states he visited the property whenever he was in the area. He has expressed an interest in purchasing a lot in the area. Suzanne Burns is an acquaintance and neighbor of Jeffrey Fancy. She testified to walking her dogs along the many trails. She recalled Mr. Fancy doing roadwork in 1991. [22] There are two areas of Jeffrey Fancy’s testimony that warrant special consideration. At paragraph 73 of his February 13, 2020 affidavit he states, “I make a point of patrolling the property on a regular basis to make sure it isn’t being used by other people.” This point is a recurring theme. It suggests that the affiants were always on alert against any kind of trespass. This is troubling. It prompts the question as to why Mr. Fancy would develop these protective behaviours when he otherwise says he always believed he owned the property. The land is “scrub” so the only credible conclusion would be to avoid the dumping of garbage. However, the evidence as a whole satisfies me that the garbage problem was not corrected by Mr. Fancy. [23] The second area of concern relates to the steel gate erected by Mr. Fancy. It was a prominent piece of evidence and it was portrayed as a barrier to the disputed area. However, on closer inspection, that was not the purpose. In 2000 Mr. Fancy bought part of the original grant from Mr. Coade. He then built Fancyview Drive over his acquired lot and not across the disputed lots. The gate on Fancyview Drive is how he accessed the disputed lands. It should be noted that Mr. Fancy suggests he did not know that Mr. Coade owned the lot he bought but the documentation suggests otherwise. [24] Mr. Fancy testified that his uncle, Bernard Fancy, took fill off the property on a regular basis during the 1970s. The evidence establishes that his lease with Mr. Coade was interrupted by the Stop Work Order in 1976-1977. Nonetheless, it is evident that he, or his company, continued to remove fill until 2019. He has no explanation as to how the Stop Work Order issue was resolved. Regardless, he continued to remove fill, at least until this application was filed. [25] I have some concerns about Mr. Fancy’s overall credibility. He lived in Harrietsfield all his life yet pleads ignorance around Mr. Coade’s ownership. He is a businessman with years of commercial experience. I would expect him to be well-versed on the particulars of land ownership, property taxes and liability insurance. Yet, he acknowledges that he paid no taxes on the land over the past 30 plus years. He offered a non-persuasive explanation as to why he felt he bought the J&L lot from someone other than Mr. Coade. Further, he suggests he placed insurance on the property but the documentation is non-specific about such coverage. [26] Mr. Fancy entered many photos of the disputed property and the improvements he effected. He stated they were all taken after the application was commenced. A pre-trial review of the photos and the associated affidavit would lead one to conclude they were taken by Mr. Fancy. However, on cross-examination, he acknowledged many were taken by others. He stated some were screen shots from a friend’s Facebook page. On discovery examination he stated they were from a family photo album. Mr. Fancy stated, at paragraph 28 of his February 13, 2020 affidavit: 28. I included a number of pictures of the clearing at Pictures 25-30 of Exhibit 4. I took all of the pictures at Exhibit 4, except the two on page 1, in January of 2020 in preparation for this Application to show the state of the Property as it is now. Exhibit 4 contains 84 photographs. It is also noteworthy that they do not indicate when they were taken. I am not prepared to say the photos are misrepresentations; however, they would be more persuasive if they were dated and properly proven. The Law of Adverse Possession: [27] In Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39, Justice Roscoe spoke of the test at paragraph 20: 20 From this review of the authorities it is clear that the claimants of possessory title have the burden of proving with very persuasive evidence that they had possession of the land in question for a full 20 years and that their possession was open, notorious, exclusive and continuous. They must also prove that their possession was inconsistent with the true owner’s possession and that their occupation ousted the owner from its normal use of the land. As well, possession by a trespasser of part is not possession of the whole. Every time the owner, or its employees or agents, stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession. What must be proven in order for a squatter to establish adverse possession as against a true owner was clearly stated by MacQuarrie, J. in Ezbeidy v. Phalen (1957), 11 D.L.R. (2d) 660, at page 665: …where there is a contest between a person who claims by virtue of his title, as the defendant does here, and a person who claims by long adverse possession only, such as the plaintiff must rely on here, there is first of all a presumption that the true owner is in possession, that the seisin follows the title. This presumption is not rebutted or in any way affected by the fact that he is not occupying what is in dispute. In order to oust that presumption it is necessary to prove an actual adverse occupation which is exclusive, continuous, open and notorious, and after that has been proved, the position is that the owner is disseised and the other person is in possession. If that person who is in adverse possession continues openly, notoriously and exclusively to exercise the actual incidents of ownership of the property, that possession in time ripens into title. It is well established that, on each of these points, there is a requirement for persuasive evidence. [28] In Gallagher v. Gallagher, 2015 NSSC 88, Justice Van den Eynden (as she then was) concisely summarized the test in point form. She wrote at paragraph 49: [49] From a review of the relevant authorities, the following is a summary of the relevant legal principles: • A true or paper title owner is presumed to be in possession of their land. A true owner is not required to show they are in possession by occupation or use; • To oust a title owner, although the burden is on a balance or probabilities, the court should only act on very cogent evidence that establishes the required possession for the statutory period. • Possession is fact specific. The acts of possession which must be proved with cogent evidence depends on the circumstances of each case and the nature of the land in issue. • The claimant of possessory title (in this case James Gallagher) has the burden of proving with very persuasive evidence that he had possession of the land in question for a full 20 years and that his possession was open, notorious, exclusive, and continuous. • He must also prove that his possession was inconsistent with the true owner's possession and that his occupation ousted the owner from its normal use of the land. As well, possession by a trespasser of part is not possession of the whole. Every time the owner, or its employees or agents stepped on the land, they were in actual possession. When the owner is in possession, the squatter is not in possession. • A true owner interrupts the adverse possession of an occupier the moment a true owner steps upon the lands. The limitation period begins to run from the time the true owner was last upon the lands; I have no doubt that Mr. Fancy has been using the land for in excess of 20 years. The critical element of the test in this case relates to the open and notorious requirement and, more specifically, the need to oust the titleholder of his intended use of the land. [29] A person claiming a possessory title must demonstrate that his possession effectively excluded the possession of the true owner. In Madison Investments Ltd. v. Ham, (1984) O.J. No. 3139 (ONCA), Justice Blair stated at paragraph 18: 18 Recent decisions in this Court have established that not every use of land will amount to adverse possession excluding that of the owner. Madam Justice Wilson summarized the effect of these decisions in Fletcher v. Storoschuk et al., supra, at p. 724, as follows: ... acts relied on to constitute adverse possession must be considered relative to the nature of the land and in particular the use and enjoyment of it intended to be made by the owner: see Lord Advocate v. Lord Lovat (1880), 5 App. Cas. 273 at 288; Kirby v. Cowderoy, [1912] A.C. 599 at 603. The mere fact that the defendants did various things on the ... land is not enough to show adverse possession. The things they did must be inconsistent with the form of use and enjoyment the plaintiff intended to make of it: see Leigh v. Jack (1879), 5 Ex. D. 264; St. Clair Beach estates Ltd. v. MacDonald et al. (1974), 5 O.R. (2d) 482, 50 D.L.R. (3d) 650; Keefer v. Arillotta (1976), 13 O.R. (2d) 680, 72 D.L.R. (3d) 182. Only then can such acts be relied upon as evidencing the necessary ‘animus possidendi’ vis-a-vis the owner. And further at paragraph 19: …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. 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. Jacks (1879), 5 Ex. D. 264. If an owner has little present use for a piece of property, much may be done on it by others without demonstrating a possession inconsistent with the owner’s title. The evidence in this trial satisfies me that Mr. Coade’s intention for the property was very limited and did not involve anything beyond selling fill and selling the property for his family’s benefit upon his death. [30] Justice Blair addressed this principle at paragraph 30 of Madison Investments decision: 30 The obvious result of this and other cases I have cited has been stated in A Manual of The Law of Real Property, 4th ed. (1969), edited by P. V. Baker, in these words at p. 529: If the owner has little present use for the land, much may be done on it by others without demonstrating a possession inconsistent with the owner's title ... It may be wondered why the more limited the use made of land by its owner, the greater is the apparent protection from claims for possessory title. The reason is plain. Whether possession is adverse depends in every case on the circumstances and particularly on the use being made of the land by the owner. As Ormrod L.J. said in the Wallis case, supra, at p. 590: The same act or acts of trespass may be highly significant to the owner of a house and garden, yet utterly trivial to a property developer or an industrialist who has no immediate use for the land affected. There is good sense in his conclusion on the same page that: This seems reasonable since the interests of justice are not served by encouraging litigation to restrain harmless activities merely to preserve legal rights, the enjoyment of which is, for good reason, being deferred. [31] The inconsistent use requirement has been consistently applied in Nova Scotia. In Pettipas v. Hunter Noel Holdings Ltd., 2015 NSSC 313, Justice Boudreau wrote at paragraphs 45 and 46: 45 A claimant's possession must be ‘adverse’ to the true owner; that is to say, their use must be inconsistent with the owner's intended use of the land (Bowater, supra, para. 20; Morrison v. Muise 2010 NSSC 163). In Anger and Honsberger at page 1515: Acts which do not interfere with and are not inconsistent with the owner's enjoyment of the soil for the purposes for which he intended to use it are not evidence of "dispossession" or "discontinuance of possession". Hence, merely fencing in land is not enough to give a trespasser title against the true owner. 46 In Fletcher v. Storoschuk (1981) 35 O.R. (2d) 722 (Ont. C.A.), at page 724: ...acts relied on to constitute adverse possession must be considered relative to the nature of the land and in particular the use and enjoyment of it intended to be made by the owner...The mere fact that the defendants did various things on the land is not enough to show adverse possession. The things they did must be inconsistent with the form of use and enjoyment the plaintiff intended to make of it...Only then can such acts be relied upon as evidencing the necessary ‘animus possidendi’ vis-à-vis the owner. [32] An owner’s use of a property may be sufficient even if that use is only intermittent and sporadic. Mr. Coade’s intentions for the property are closely tied to the topography of the land. In Johnston v. Roode¸ 2019 NSCA 98, Chief Justice Wood stated at paragraph 25: The type of possession required varies with the nature of the land: Whether there has been sufficient possession of the kind contemplated by the statute is largely a question of fact in each case in which due regard is to be had to the exact nature and situation of the land in dispute. Possession must be considered in every case with reference to the peculiar circumstances, for the facts constituting possession in one case may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to their own interests, are factors to be taken into account in determining the sufficiency of possession. Anger and Honsberger, Law of Real Property, 3rd Ed., s.29:60.80. In Podgorski v. Cook, 2013 NSCA 47, Justice Bryson cited Lynch at paragraph 58: 58 The law requires very clear evidence of adverse possession. In Lynch, Justice Hallett put it this way: 7 The legal concept which allows a person to acquire possessory title good against the holder of the legal title is based on the premise that a legal owner cannot stand aside and allow a trespasser or co-tenant to make improvements to the property and pay the taxes over many years and then come in and claim it, even though he could see the other was in possession. As a safeguard to the legal owner, the Courts have insisted that the possession be of the quality described before the legal owner's title is extinguished; otherwise there could be great injustices if by doing sporadic, unobservable acts on the land a person could acquire possessory title. Hence the care which should be taken by a Court before a finding is made that the title of the legal owner to woodland in particular, is extinguished as the acts relied upon are very often sporadic in nature and unobserved by the true owner yet can qualify as being acts that are consistent with the limited use a person who owns land of that nature would make of such land. 8 As claims for possessory title extinguish the title of the legal owner pursuant to a limitations Act, the Court should only act on very cogent evidence that proves that the person's possession has been visible, exclusive and continuous possession for the required statutory period. Legal owners should not be dispossessed where land is such that the legal owner would not make a great deal of use of the land, such as wood land, particularly if the claim is made not by a trespasser but by one co-tenant or more against others. Section 12 of the Limitation of Actions Act provides that no person shall be deemed to have been in possession of any land within the meaning of the Act merely by reason of having made an entry thereon. Where the acts of possession relied upon with respect to wood land are the occasional unobserved cutting of logs and firewood from the property, such acts do not improve the property even though they evidence the intention of one co-tenant to possess it exclusively. It cannot be too strongly emphasized that evidence of possession to extinguish title must be of a quality that has been required by the Courts for hundreds of years. Each case turns on its own facts. [Emphasis in Original] The law requires an ouster of the owner for 20 years, as Justice Hallett stated at paragraph 14 of Lynch, “The evidence must establish acts of possession that clearly prove that the legal owner’s title has been extinguished.” Analysis: [33] I conclude that Mr. Code held the subject property for very limited purposes. He inherited this land without any intention of ever living there or building a structure. He donated or sold fill from the pit area but otherwise left the property in its natural state. He was an absentee landowner. He considered the property a long-term investment that would benefit his family after his death. I cannot conclude that Mr. Fancy’s activities over the years in any way diminished or extinguished Mr. Coade’s intended use. [34] It should be noted that the property does not in any way stand out. It presents as “scrub land” along the Old Sambro Road. It is no different than surrounding woodlands. Open and notorious long-term use is not as apparent as an urban or improved property. Mr. Fancy, his father and uncle communicated the message that the land belonged to them, as evidenced by the supporting affidavits from individuals in the community. I suspect that local residents accepted it was their land based on those communications. I conclude that this application fails on the basis of the “intended use” principle. [35] While this factor resolves this dispute, I also have concerns as to whether Mr. Fancy has established the 20-year requirement. The property was migrated into the land registry system on June 14, 2019 and July 4, 2019. I accept that Mr. Fancy must establish his possession for a 20-year period prior to those dates. The possession of Mr. Fancy would need to have been established by mid-1999. It is clear that Mr. Fancy bought adjacent land from Mr. Coade in August, 2000. I am unable to accept his evidence that he did not know Mr. Coade was the vendor. The record does not support that proposition. Alternative Relief Sought: [36] Mr. Fancy seeks compensation for what he considers “lasting improvements” to the disputed lands over the past 30 years. It is quite apparent that Mr. Fancy’s focus has been on his adverse possession claim and not on his claim for damages for unjust enrichment. The quality of this evidence does not support such a claim. Further, it does not reflect compensation to Mr. Coade for the fill that was misappropriated over the years. There is no evidence as to the value of any improvements beyond photographs. [37] Mr. Fancy addressed this issue at paragraphs 38-41 of his February 14, 2020 affidavit: 38 A common thing I would do when I was older, particularly when I had a job out around Hammond [sic] Plains area was to stop at Gateway Materials on my way home and pick up a load of aggregate (gravel) for the Property. 39 I obtained a record of all the invoices for my company, J.L. Fancy Excavating Ltd., from Gateway going back as far as they have records. Exhibit 6 is a copy of the records I obtained. I highlighted my best estimation of the loads of aggregate that were for Property and totaled the cost at the bottom of each page. In total, between January 1998 and August 2019 I estimate I bought and spread over $70,000 on gravel at the Property. 40 This calculation is obviously not accurate to the penny, however I spent time thinking about what projects I had on the go at the time and my habit to stop on my way home and buy a full load of aggregate for the Property. Based on my recollection, the highlighted items in Exhibit 6 are a reasonable estimate of what I spent on gravel for the Property during those years. 41 I also bought and spread a large quantity of top coat gravel on the roads prior to 1998 but I don’t have records of it. In addition to the top coat gravel, I also used a significant quantity of fill and 2” gravel to build the roads. These estimates are without foundation and amount to little more than an opinion. The supporting documentation adds little to the above affidavit evidence. Mr. Fancy was unable to explain why the “Gateway” documents supported his claim. Conclusion: [38] Mr. Fancy’s application in court is dismissed. He has not proven his alleged adverse possession or his claim for damages. If the parties cannot agree on costs, I will accept written submissions within 30 days of this decision Coady, J.