Clarke v. Babbitt

Clarke v. Babbitt

Majority held plaintiff acquired title by possession under s.5 because the hedge, walk, terraces, lawn and continuous use constituted open, exclusive and continuous adverse occupation for the statutory period, vesting fee simple in plaintiff.

Citation
[1927] SCR 148
Parties
Defendant Appellant: Bruce W. Clarke; Defendant Appellant: Lorne H. Clarke; Plaintiff Respondent: Richard C. Babbitt
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
1 February 1927
Procedural Posture
Real Property Title by Possession (adverse Possession) / Appeal to Supreme Court of Canada From Appellate Division of the Supreme Court of Ontario; Final Determination
Outcome
Appeal dismissed; judgment of the Appellate Division of the Supreme Court of Ontario affirmed (majority), costs to respondent.
Legal Topics
Possession, Title by Possession, Limitation Periods, Boundary Evidence, Exclusive Occupation, Enclosure
Source Language
English
Property Law Adverse Possession Limitations Evidence Possession Title by Possession Limitation Periods Boundary Evidence +2 more

Case Brief

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Parties

Bruce W. Clarke

Defendant Appellant

Lorne H. Clarke

Defendant Appellant

Richard C. Babbitt

Plaintiff Respondent

Procedural Posture

Real Property Title by Possession (adverse Possession) / Appeal to Supreme Court of Canada From Appellate Division of the Supreme Court of Ontario; Final Determination

Legal Issues

  1. 1 Whether plaintiff acquired title by possession/adverse possession under The Limitations Act R.S.O. 1914 c.75 s.5
  2. 2 Whether the planting/maintenance of a hedge, walk, terraces and cultivation constituted exclusive occupation rather than a mere right of way
  3. 3 Whether the occupation was continuous and adverse for the statutory period

Ratio Decidendi

Majority held plaintiff acquired title by possession under s.5 because the hedge, walk, terraces, lawn and continuous use constituted open, exclusive and continuous adverse occupation for the statutory period, vesting fee simple in plaintiff.

Court Disposition

Appeal dismissed; judgment of the Appellate Division of the Supreme Court of Ontario affirmed (majority), costs to respondent.

Orders

  • Declared plaintiff owner in fee simple of the disputed strip of land
  • Vested the disputed strip in the plaintiff