Oostdale Farm v. Oostvegels

Oostdale Farm v. Oostvegels Court Supreme Court Date 2016-05-31 Citation 2016 NSSC 146 Docket Ant 358355 Judge/Registrar/Adjudicator Scaravelli, Nicoll M. (Honourable Justice) Document Type Decision Relations Library Sheet - Oostdale Farm v. Oostvegels - 2016 NSSC 146 - 2016-05-31 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: Oostdale Farm v. Oostvogels, 2016 NSSC 146 Date: 2016-31-05 Docket: Antigonish, No. 358355 Registry: Antigonish Between: OOSTDALE FARM and JOHN OOSTVOGELS Plaintiffs v. JOSEPH LAWRENCE OOSTVOGELS Defendant Judge: The Honourable Justice N. M. (Nick) Scaravelli Heard: February 8 & 10, 2016, in Antigonish, Nova Scotia Counsel: Robert H. Pineo and Jeremy P. Smith , for the Plaintiffs John Shanks for the Defendant [1] This action involves a property dispute between two brothers as a result of a subdivision of a lot of land from the family farm property located in Antigonish, Nova Scotia. [2] At issue is the size of the subdivided lot of land owned by the defendant Joseph Oostvogels and his use of a right of way over the farm property owned by the plaintiffs (John Oostvogels.) The plaintiff and defendant disagree over the location of the boundaries of the defendant’s property. Further, the plaintiff claims the defendant’s use of the right of way to service his automotive repair business is not authorized by the grant of right of way. [3] The plaintiff seeks the following relief: 1. A declaration that the boundaries of the defendant’s property are as delineated in Schedule “A” of the claim; 2. A permanent injunction enjoining the defendant from utilizing the right of way for commercial purposes; 3. Damages for trespass. Background [4] Jack and Petronella Oostvogels, parents of the plaintiff and defendant, acquired the farm property in the 1960’s through a purchase agreement with the Nova Scotia Farm Loan Board. They lived in the farm house on the property while working their dairy farm and raising their children. In anticipation of retirement they built a home on the property in in 1974. In 1982 Jack Oostvogels built an outbuilding next to the home. This building was used mainly by the family to service farm machinery. [5] In anticipation of the plaintiff John Oostvogel’s intention to acquire the farm property, Jack Oostvogels prepared and filed an instrument of subdivision in 1987 subdividing “a six acre” lot from the farm property that contained his house and outbuilding. [6] In February 1988 Jack and Petronella Oostvogels received a deed from the Nova Scotia Farm Loan Board conveying the six acre lot, including a 20 foot right of way through the farm property, to the subdivided lot. [7] In 1988 the plaintiff entered into an agreement with the Nova Scotia Farm Loan Board to purchase the remaining farm property. [8] Petronella Oostvogels died in 2006. Jack Oostvogels died in 2007. Pursuant to his Last Will and Testament the defendant Joseph Oostvogels acquired a deed to the lot of land including the right of way. [9] In 2008 the defendant started an automotive repair business out of the building located on his property. Issues [10] The issues to be determined by the court are: 1. What is the location of the boundaries of the land owned by the defendant? 2. Whether the grant of right of way attached to the defendant’s land may be used to support a commercial operation in the nature of an automotive repair business. Location of the Boundaries [11] The parties disagree over the location of the boundaries of the defendant's property. The defendant says the fence lines demarcate the proper boundaries, while the plaintiffs prefer the metes and bounds description. Law [12] In Goulden v. Nova Scotia (Attorney General), 2013 NSSC 253, [2013] N.S.J. No. 418, Stewart J.'s succinctly summarized the principles respecting boundary determination: 12 Boundary determination. Before embarking on a review of the evidence, it will be of use to set out several of the general legal principles that govern the rather technical field of boundary determination. Various legal principles govern deed interpretation and boundary demarcation when the court is required to resolve boundaries. The general rules of evidence apply to boundary disputes, which are typically heavily concerned with documentary evidence of title. In deed interpretation, the question is not the grantor's subjective intent. Rather, the court is concerned with the meaning of the words used in the deed. That is to say, the question is "what is the expressed intention of the grantor?": Knock v. Fouillard, 2007 NSCA 27, at para. 27. If the terms of the conveyance are clear, extrinsic evidence is not admissible: Anne Warner Le Forest, Anger and Honsberger's Law of Real Property, 3d edn. (Aurora, Ont: Canada Law Book, 2010) at s.18:30:30. 13 When the words of a deed are not ambiguous, either in themselves or when applied to the land in question, the intention of the original grantor is to be taken from the words of the description in the deed. No further rules of interpretation are required: Herbst v. Seaboyer, (1994) 137 N.S.R. (2d) 5 (C.A.), at para. 15; McCormick v. MacDonald, 2009 NSCA 12, at para 73. A latent ambiguity occurs when the words of a document on their face do not admit a different possible meaning, but surrounding circumstances show that two or more different meanings are possible. A party may demonstrate that a latent ambiguity exists, and attempt to resolve it, by adducing extrinsic evidence, including evidence of subjective intention. A patent ambiguity, by contrast, is "apparent from the face of the document": Taylor v. City Sand and Gravel Ltd., 2010 NLCA 22, at para. 21; Geoff R. Hall, Canadian Contractual Interpretation Law, 2d edn. (Toronto: Lexis Nexis Butterworths, 2012) at s.2.8.5. 14 The rules for ascertaining the intention of a grantor in the event of ambiguity were set out in McPherson v. Cameron (1868), 7 N.S.R. 208, [1868] N.S.J. No. 2 (S.C.). Dodd J. said the general rule "is to give most effect to those things about which men are least liable to mistake" (para. 5). In applying this principle, the elements of the description are "marshalled" in the following order: "First, the highest regard had to natural boundaries; Secondly, to lines actually run and corners actually marked at the time of the grant; Thirdly, if the lines and courses of an adjoining tract are called for, the lines will be extended to them, if they are sufficiently established; Fourthly, to courses and distances, giving preference to the one or the other according to circumstances" (para. 5). 15 In Kolstee v. Metlin, 2002 NSCA 81, the Court of Appeal confirmed that cases such as MacPherson, supra, Saueracker v. Snow (1974), 14 N.S.R. (2d) 607 (T.D.), and Humphreys v. Pollock, [1953] 3 D.L.R. 730 (N.B.S.C.A.D.), aff'd [1954] 4 D.L.R. 721 (S.C.C.), "correctly set out the general principles to be applied in interpreting descriptions of land as spelled out in a deed. As a general rule the intent of the parties to a conveyance is to be gathered from the words of the document. If there is an ambiguity, the common sense rules as quoted by the trial judge from McPherson ... are generally to be applied. When courses and distances clash preference to one, rather than the other, will depend on the circumstances" (para. 66). 16 More recently, in Nicholson v. Halliday (2005), 248 D.L.R. (4th) 483, [2005] O.J. No. 57, the Ontario Court of Appeal set out the surveyors' hierarchy of evidence: (1) natural boundaries; (2) original monuments; (3) fences or possession that can reasonably be related back to the time of the original survey; and (4) measurements (as shown on the Instrument or as stated in the metes and bounds description). See also Robichaud v. Ellis, 2011 NSSC 86, at para. 25. The Court of Appeal recently considered this hierarchy in Podgorski v. Cook, 2013 NSCA 47, declining to decide whether it applies in Nova Scotia. The court held that the "application of the 'hierarchy of evidence' and related survey principles would initially be a matter for the expertise and opinion of the surveyors in question. So, for example, whether monuments were 'original' or whether 'fences or possession' can be reasonably related back to the 'time of original survey' would be matters of expert opinion for a surveyor" (para. 20). 17 In re-establishing a line, a surveyor must "consider the best evidence available and re-establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in the deed or on a Instrument. The boundary is the re-establishment on the ground of the original running of the line and this re-establishment of the boundary constitutes the deed line": Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303, 1989 CarswellOnt 2417 (Ont. Dist. Ct.) at para. 11. Stortini J. stated in Traynor v. Hilderley, [1997] O. J. No. 4839 (Ont. Ct. J. (Gen Div)), that if "original monumentation is found and is undisturbed as to location, it must be accepted, erroneous as may have been the original survey" (para. 14). If there is no evidence "of either the original monuments or original line, then the surveyor must refer to the measurements as contained in the deed or on the Instrument. This approach may, of course, be affected by possessory title. If no other method of establishing the boundary in question is available, the court must fix the boundary with the assistance of deed measurements and the law of possessory title" (para. 15). [13] The defendant obtained title to the defendant's property through the Last Will and Testament of his father, Jack Oostvogels. The description of the defendant's property originated with the 1988 deed from the Nova Scotia Farm Loan Board to Jack Oostvogels as follows: All and singular that certain lot, piece or parcel of land situate, lying and being at Church Street Extension, Town of Antigonish, Nova Scotia, and being shown on Instrument of Subdivision approved by Department of Municipal Affairs, December 11, 1987, said lot being more particularly described as follows: Beginning at a point south of the Church Street Extension at a small stream; Thence in an easterly direction along said stream a distance of two hundred and ten (210) feet more or less to a fence; Thence along said fence in a southerly direction a distance of seven hundred and thirty-five (735) feet more or less to a point; Thence along a fence in a westerly direction a distance of one hundred (100) feet more or less to a point; Thence along a fence in a northwesterly direction a distance of four hundred and sixty (460) feet more or less to a point; Thence along a fence in a northerly direction a distance of six hundred and seventy (670) feet more or less to the Point of Beginning; Containing an area of six (6) acres more or less . . . [14] The parties agree there is a "latent ambiguity" in the 1988 deed, because the metes and bounds description set out in the deed, which reference fence lines, do not correspond with the locations of the fence lines or the stated size of the lot (six acres). The plan of survey and report prepared by Blake Beaton and tendered by the defendant confirms that the northern boundary, which is stated as being 670 feet in the 1988 deed, is measured to be 927 feet along the fence line. The southern boundary is stated as being 735 feet in the 1988 deed, but it is measured at 1134 feet along the fence line. [15] In these circumstances, extrinsic evidence may be used to resolve the ambiguity. [16] The instrument of subdivision shows the defendant's property as being wholly contained within the plaintiffs' property (i.e. there is a gap between the defendant's property and the neighbouring property to the south, being PID No. 01287218). At the bottom of the document, there is a statement that reads, "I certify that the above sketch accurately represents my property," and this has been signed by Jack Oostvogels. The defendant says the instrument of subdivision prepared by his father is not reliable because Jack Oostvogels had no experience in preparing surveys or subdivision documents. The plaintiffs say the instrument of subdivision is nonetheless informative as to Jack Oostvogels' intentions. [17] The surveyor, Mr. Beaton has prepared a plan of survey showing the discrepancy between the deed description and the fence lines. Mr. Beaton concludes, "our opinion of where the boundary line location is the existing fence, which was present when the instrument of subdivision was done." The plan depicts the existing fence lines extending southerly to the neighbouring property. [18] The plaintiff, John Oostvogels testified that although he was unaware his father subdivided the lot in 1987, it was always his father’s intention that the farm land would stay with the farm. The southern portion of the land (the area in dispute) has historically been used for pasturing and making hay. John Oostvogels further testified that in the 1960’s there was another fence demarcating the southern boundary that would be more consistent with the metes and bounds description. However, he acknowledged that this fence was removed in the 1970’s prior to the instrument of subdivision. [19] The defendant, Joseph Oostvogels confirmed the fence lines along the eastern, southern and western boundaries of his property as depicted in the plan of subdivision were there prior to the instrument of subdivision and continue to exist today. [20] In the event of ambiguity, the court should "give most effect to those things about which men are least liable to mistake". Hence the hierarchy of evidence, which sets the following order of priority: 1. Natural boundaries; 2. Original monuments, e.g. lines actually run and corners actually marked; 3. Fences or possession that can reasonably be related back to the time of the original survey; and 4. Measurements or "metes and bounds". Natural boundaries do not assist us in this case. [21] The defendant submits that the fence lines are "original monuments", and they ought to be preferred to the call for distances. I believe the fences are more properly characterized as evidence of possession that can reasonably be related back to the time of the original survey, but nonetheless, they take priority over the metes and bounds description. [22] Further, as the defendant points out, using the fence lines yields a lot size of 6.9 acres, which is closer to the measurement identified on the 1988 deed of six acres, than the lot size yielded by the metes and bounds description. As Anne Warner La Forest states in Anger & Honsberger Law of Real Property, 3rd ed., looseleaf (Toronto: Thomson Reuters Canada Limited, 2013) at 18-12 [Anger & Honsberger], "If a deed contained a description which could equally well be interpreted in two different ways, one of which would match the quantity of land described and one of which would not, the first interpretation would be preferred." Accordingly, I find the boundary lines marked by the fences as depicted in the plan of survey establishes the boundaries of the defendant’s property. [23] As a result, the plaintiffs’ claim for a declaration that the boundaries of the respondent’s property are as set out in Schedule A (the deed), is dismissed. Use of Right of Way [24] The deed to the subdivided lot described the right of way as follows: . . . Also including a right of way twenty (20) feet in width over the existing driveway, leading from the limits of Church Street Extension to the northern boundary of the above described lot said lot being a portion of the lands presently owned by Jack Oostvogels and Nova Scotia Land Settlement Board said agreement being registered as Document BG 256 Registry of Deeds Antigonish. [25] The plaintiff’s say the defendant’s use of the right of way for commercial purposes is inconsistent with its intended purpose. Moreover the defendant’s use interferes with the plaintiff’s farm operation. [26] The defendant says the servicing of farm machinery and vehicles on the defendant’s land, both before and after the grant of right of way established a commercial context and the change in scope of the commercial use to members of the public, was reasonable in the circumstances and not an over burden of the right of way. Law [27] The grantee of a right of way cannot "overburden" the right of way. In other words, the grantee cannot use the right of way "excessively". In Sunnybrae Springbook Farms Inc. v. Trent Mills (Municipality), 2010 ONSC 1123, [2010] O.J. No. 3715, aff'd 2011 ONCA 179, [2011] O.J. No. 965 at para. 93 [Sunnybrae], Lauwers J. explained, "Overburdening of a right of way occurs when it is used excessively or significantly beyond the rights and nature conveyed in the grant of easement." [28] Some examples of excessive use are: 1. The grantee unreasonably interferes with other users; 2. The grantee's use is inconsistent with the purpose of the right of way; 3. The grantee's use exceeds the permitted scope or mode of use; and 4. The right of way is being used to access property beyond the dominant tenement. See Anger & Honsberger, at §17:20.30(b). [29] In Laurie v. Winch, [1953] 1 S.C.R. 49 [Laurie] the court stated: … Just as the circumstances existing at the time of the grant may be looked at for the purpose of ascertaining the intention of the parties as to the dominant tenement and as to the location and termini of the way, the circumstances may also be looked at for the purpose of construing the conveyance as to the nature and extent of the rights conveyed. … In Robinson v. Bailey [[1948] 2 All E.R. 791.], Lord Green M.R. referred to the language of Farwell L.J. in Todrick's case, supra, and said at p. 795: While not in any way dissenting from that statement as a general proposition, I would like to give this word of caution, that it is a principle which must not be allowed to carry the court blindly. Obviously the question of the scope of the right of way expressed in a grant or reservation is prima facie a question of construction of the words used. If those words are susceptible of being cut down by some implication from surrounding circumstances, it being, to construe them properly, necessary to look at the surrounding circumstances, of course they would be cut down. Todrick's case is a very good example of the sort of application of the rule which Farwell J. was enunciating. [30] Lauwers J. in Sunnybrae, supra at para. 94, cited Laurie for the following proposition: "The court must look not only to the instrument creating the easement, but at all circumstances present at the time the easement was made in order to determine its extent and nature." [31] Accordingly, it will be a rare case when resort to the surrounding circumstances will not be necessary in construing the bounds of an easement. This would only be inappropriate where the words of the grant are clear and unambiguous, and expressly and satisfactorily resolve the problem before the court. [32] The words of the grant in our case do not expressly resolve the problems before the court. The grant does not specify the right of way’s purpose, beyond giving a right of access between the Church Street Extension and the defendant's property. It also does not specify the permitted scope or mode of use. An examination of the surrounding circumstances is necessary. There are various factors that may form the analysis. 1. The past use of the right of the way and its use at the time of grant; 2. Why the right of way was created 3. Physical characteristics of the right of way surrounding servient land; 4. Characteristics of the dominant tenement; 5. Relationship of the parties; 6. Passage of time. [33] An easement’s purpose may not be frozen in time and can evolve where the use of the land changes within the reasonable ambit of the right of way (Laurie, supra.) However, it is a general principle that the grantee of a private right of way cannot turn it into a public right of way Granfield v. Cowichan Valley (Regional District) [1996] B.C.J. No. 261, (BCCA). Analysis [34] The evidence establishes that the dominant tenement was deeded to the parents so they could have a retirement home. The right of way was attached to the property to give it a means of access from Church Street Extension. It is an easement of necessity. The dominant tenement and servient tenement were historically used for a farmhouse and a farm. Until the dominant tenement was bequeathed to the defendant and he opened the vehicle repair business, the right of way was only used by those living at home and perhaps the occasional guest. [35] As stated, the right of way or driveway travels through the farm outbuildings to the residential homes of both parties. The dairy farm currently consists of 120 head of dairy cows. The barns and other out buildings are located on both sides of the driveway, in very close proximity to the driveway. The right of way in this area is used in the farm operation including cattle, farm equipment and workers who regularly occupy the area. Farm equipment consists of tractors, spreaders, forestry equipment, harvesters, wagons, ATVs and farm vehicles. A “very large and extended” milk truck arrives and parks on the driveway adjacent to the barn on a regular basis to load milk. The plaintiff claims that traffic related to the defendant’s business interferes with the farm operation and at times poses risks to workers while crossing the yard, as depicted in video security cameras admitted into evidence. [36] The defendant acquired the property by Last Will and Testament following his parent’s deaths in 2006-2007. In 2008 he decided to start an automotive repair business utilizing the outbuilding on the property. The defendant did not discuss his decision to operate a commercial business with the plaintiff. To this end he made modifications to the garage door and the interior. He also advertised in the yellow pages and the local newspaper. He erected a sign at the Church Street Extension. [37] The defendant’s business started out slowly and increased substantially over the last number of years. He performs work on cars, light trucks and utility trailers. He estimates working on an average of 20 vehicles per week. Normally, each vehicle would pass through the right of way six times for delivery and pickup. The defendant acknowledged that most often another vehicle would accompany a customer for a return drive. Other vehicles using the right of way to access the business would be tow trucks and supply/delivery vehicles which could occur multiple times per day. The defendant would also use the right of way to test drive vehicles. He acknowledged that traffic has significantly increased over the years. [38] The defendant’s claim that his father used his property for commercial purpose is not sustainable. The retirement property was used for residential purposes and not a farming operation. Repairing the farm equipment was not a business enterprise. Until the time the defendant obtained property, the right of way was only used by those living in the home and perhaps the occasional guest. The defendant has put the property to a very different kind of commercial use that put significant different demands on the right of way. [39] While the use of land can change over time, the change of use of this right of way created an unacceptable increase of traffic creating an over burden on the right of way. [40] The problem lies in the fact that the defendant has changed the right of way from a private one to a public one. This goes beyond what was reasonably contemplated by the parties in 1988. [41] As a result, the plaintiffs are entitled to a mandatory injunction restraining the defendant from utilizing the right of way by the public for commercial purposes. Damages [42] The Plaintiffs seek monetary damages in the amount of $200 per month since the beginning of the trespass, being 97 months, for an award of $19,400. Nathanson J. considered the measure of damages for trespass to land in Saulnier v. Bain, 2006 NSSC 27, [2006] N.S.J. No. 30. Nathanson J. began his analysis by stating: 51 The fundamental principle for fixing the measure of damages for loss of property is restitutio in integrum. This principle attempts to place the injured party in the same position as before the tortious conduct which caused the loss: Livingston v. Rawyards Coal Co. (1880), 5 App. Cas. 25 (H.L.), at p. 39. 52 Thus, the plaintiff is entitled to full restitution for his loss. While the depreciation in selling value of the land will generally be an adequate measure of the damage to the land, in the present case no evidence was presented as to the value of the land or the amount of diminution of the value which may have resulted from the cutting and removal of trees. In the absence of such evidence, the Court has no choice but to look at the value of the trees which were cut and removed. [Emphasis added] [43] In Saulnier, the defendant had trespassed on the plaintiff's land and cut trees. The value of the lot had depreciated. Nathanson J. explained under the heading of general damages: 58 Under this heading, I take into consideration the following factors: the plaintiff was blind to the ownership of the yellow lot; he logged above the brook on the northwest corner of the yellow lot, from which location he arranged with the Comeau twins to remove the cut logs, and there is no evidence as to the value of the logs which were removed; there is no evidence that the plaintiff intended to log the yellow lot at that time; it will doubtless take many years for the cut-over area to regenerate; the cutting by the defendants will undoubtedly result in diminution in the value of the yellow lot by an amount of which there is no evidence and which is impossible to estimate. The plaintiff was awarded $15,000 in general damages. [44] In our case, the Plaintiffs have not shown that they have suffered any loss. They have not alleged that the value of the servient tenement has decreased. In Crocker v. Dubois, 2010 NSSC 279, [2010] N.S.J. No. 388 at para. 23, Haliburton J. found that no real harm flowing from the defendant's trespass had been established. He ordered that the defendant pay $1.00 in general damages. I believe this would be an appropriate award of damages in our case. [46] There will be no order for costs as the parties each succeeded on one of the two main issues before the court. Scaravelli, J.