S.C.A. 00259 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION MacKeigan, C.J.N.S., Hart and Macdonald, JJ.A. N: MARY J. GILLIS and MICHAEL DAN GILLIS Respondent Harold A. MacIsaac for the appellant Hugh R. MacLeod for the respondent Appeal Heard: March 14, 1979 Judgment Delivered: March 23, 1979 MACDONALD, J.A. (MacKeigan, C.J.N.S. and Hart, J.A. concurring) The appellant and respondent are adjoining landowners in Gillisdale, Inverness County. In these proceedings both claim title to or ownership of a certain portion of meadowland abutting the Margaree River and containing approximately six acres. Both petitioned Mr. Justice Hugh J. MacPherson, local Judge of the Trial Division of the Supreme Court for certificate of title to such land under the Quieting Titles Act, R.S.N.S. 1967, c.259. In a reserved decision Mr. Justice MacPherson found that the respondent was entitled to a certificate of title under the Act to certain lands including the six acre portion in dispute and to a permanent injunction restraining the appellant and her assigns from using "the said lands in any way whatsoever". From such decision and the order based thereon the appellant appeals, contending that for the following reasons her claim to the disputed lands has been established. (1) conveyance of her late husband (and subsequently to her) which she submits vests title in her to the land in dispute; (2) The existence of conventional line separating her lands (including the six acres in dispute) from those of the respondent. (3) Alternatively, that if the respondent did have title to the disputed lands such title has been extinguished by possession thereof by herself alone and in privity with others in possession before her. The parties apparently agree that the lands involved, including the six acres in dispute, were originally comprised in tract approximately 133 acres owned by Angus Gillis and given by him to his two sons, John A. Gillis (or Donald) and Roderick (gory) Gillis sometime prior to 1915. Either Angus Gillis or his two sons divided the lands, with Roderick taking the southern portion and John A. (or Donald) the northern portion. The contention of the appellant with respect to the line dividing the land, as contained in paragraph 4(c) of the defence filed on her behalf is as follows: ..the dividing line was straight line running from the Crown land toward the said river except where it came to the meadow on the West side of the said river. Here it was decided that since the portion of the meadow which would fall to Rory Gillis if straight line were followed would be useless due to the steep bank and smaller because of the curve westward in the river, that the boundary line on the meadow would be shifted northward so as to give Rory Gillis approximately onehalf of the usable portion of the meadow." Both parties filed an abstract of title as required by s.5 of the Quieting Titles Act. The abstracts reveal that both parties are relying on tax deeds. The respondent's abstract shows that by deed dated August 4, 1915, and registered in the Registry of Deeds office at Port Hood on October 30, 1917, in Book 28 at page 294, John A. Gillis conveyed to Donald A. Gillis (sometimes referred to in the transcript of evidence as Dan A. Gillis) the following lands: "All that certain tract, piece or parcel of land, situate, lying and being at Gillisdale, aforesaid, and abutted and bounded as follows; On the East by the waters of the South West Branch of the Margaree River; On the South by lands in possession of Roderick A. Gillis; On the North by lands in possession of Ronald D. Gillis; and On the West by Crown lands, containing seventythree acres, more or less." Donald A. Gillis and his wife, Sarah, conveyed the foregoing lands to the respondent Michael Dan Gillis by deed dated May 18, 1961 and registered at the Registry of Deeds office at Port Hood on January 17, 1962. The metes and bounds description in this deed are as follows: "On the east by the waters of the South West Branch of Margaree River, Bounded on the south by lands of Alex Joseph Gillis, Bounded on the north by lands of Duncan Gillis, Bounded on the west by Crown land." The appellant's abstract indicates documentary title going back to 1936. By deed dated August 29, 1947 and registered in the Registry of Deeds office at Port Hood on September 29, 1954, in Book 60, page 430, Malcolm A. Gillis (a son of Roderick) conveyed the following lands to the husband of the appellant, Alexander Joseph Gillis: "ALL that certain piece, parcel or tract of land situate, lying and being at Gillisdale in the said County of Inverness, and more particularly described as follows: Bounded on the North by lands of Donald Gillis; on the South by lands of Gillis Gillis; on the East by the River and on the west by Crown lands, containing sixty-three acres, more or less, the same being the land conveyed by Dan Hugh Gillis to Malcolm A. Gillis by deed dated the 18th day of January, A.D., 1936, and recorded in the Registry of Deeds at Port Hood in Book No. 46, page 769." Although the appellant's abstract of title makes no reference to it deed entered as Exhibit 10 and dated November 27, 1956 and registered in the Registry of Deeds office at Port Hood on May 17, 1973, was given by Dan Hugh Gillis and his wife, Emily Agnes to Alexander Joseph Gillis of the following lands: "ALL that certain lot, piece and parcel of land and premises, situate, lying and being at Gillisdale, in the said County of Inverness, now or formerly bounded and described as follows: on the North by lands of Donald Gillis; On the South by lands of Gillis Gillis, on the East by the Margaree River; and on the West by Crown lands, said description including the southern one-half of interval lands owned by Angus Gillis and divided by him between Donald Gillis and Rorey A. ,Gillis, the father of the Grantor herein. And also that lot of land conveyed to Malcolm Gillis by Archie Gillis, by deed dated October 23rd, 1947, and recorded in the Registry of Deeds at Port Hood. Said above described lot being part of the lot first above described." This deed is crucial to the appellant's case and more will be said about it later in these reasons. refer to it now as part of the chronological narrative. On December 6, 1966 the property as described in the deed from Malcolm A. Gillis to Alexander Joseph Gillis was purchased by the Municipality of the County of Inverness at tax sale. By indenture dated May 8, 1973 and recorded in the Registry of Deeds office at Port Hood on May 17, 1973, in Book 116 at pages 278-9, the Municipality conveyed such lands to Josephine Gillis, the appellant herein and widow of Alexander Joseph Gillis. It is interesting to note that the deed from the Municipality to Josephine Gillis and that from Dan Hugh Gillis to Alexander Joseph Gillis, were both registered at nine o'clock on the forenoon on May 17, 1973. From the recording particulars it is obvious that the latter deed was recorded first, followed immediately by that from the County. Since the former deed was executed on November 27, 1956, it was probably registered in 1973 after the deed from the County in.order to record something which might support Josephine's claim to title to the six acres of meadowland in dispute. During the years following the conveyance in 1947 from Malcolm A. Gillis to Alexander Joseph Gillis, the latter, and later his heirs, continually laid claim to the meadowland in dispute. As result the respondent, on the advice of his solicitor, decided to allow the taxes on his property to fall into arrears and then bid the property in at tax sale. He hoped thereby to clear up the title problem and the dispute with his neighbour, Alexander Joseph Gillis, and later with the heirs ,of the latter. On November 20, 1974 tax sale of the respondent's lands was held by the Municipality of the County of Inverness. Both the appellant and respondent bid at the sale with the latter being the successful bidder. By indenture dated March 31, 1976, but not registered, the County conveyed the lands to the respondent describing them as follows: "Bounded on the North by lands of Duncan R. Gillis; on the East by South West Branch of the Margaree River; on the South by the lands of the Est. of Alex Gillis and on the West by Crown land. This is approximately 73 acres located at Gillisdale." This description is similar to that contained in the 1915 deed from John A. Gillis to Donald A. Gillis and in the 1961 deed from the latter and his wife to the respondent. The tax deed therefore did nothing to solve the problem and was considered unsatisfactory by. the respondent who, through his solicitor, requested the Municipality to give him deed to the 73-acre tract of land using the following description: "BEGINNING at the point of intersection of the west bank of the southwest branch of the Margaree River with the southwest line of Duncan Ronald Gillis; THENCE by the magnet of the year 1817, 65° 00' W, 103 chains to the Crown lands; THENCE 3° 45' distance of 7.33 chains and 7.33 links to point; THENCE 65° 00' to the west bank of the Margaree River; THENCE northwest following the various courses of southwest branch of the Margaree River to the Place of beginning. BEING approximately the middle 1/3 of Lot 25 of the lands granted to Donald Gillis in Grant Book Q, Page 78." The County refused to use such description in the deed because, as its counsel put it: "...it is felt by the County of Inverness that when we issue deed after tax sale we should issue deed that has the same description in it as the land had when it went up for sale. We feel that if we start varying from that description and start issuing deeds by the county for other descriptions that might or might not conform to the original boundaries of the property then we'll be getting the County of Inverness into serious trouble in lawsuits." This brought the matter to head and the respondent commenced action under the Quieting Titles Act and also for an order in the nature of mandamus compelling the Municipality to issue deed to him of lands as described in the description last referred to above. The appellant filed defence and counter-claimed for certificate of title under the Act to lands that would include the disputed meadowlands. This brings me to consideration of what lands are encompassed by the two tax deeds. The previous deeds to the parties are relevant only in aid of such determination. The. respondent relies on the deed to himself and to his predecessors in title and says that he has good documentary title to the 73-acre piece of land back to 1915 and that such lands by description contain the six acres of meadowland in dispute. The appellant, in support of her contention that she has good documentary title to the six acres in contention, relies on the deed from Dan Hugh Gillis and his wife to her husband, Alexander Joseph Gillis, dated November 27, 1956 and registered on May 17, 1973. The description contained in that deed is similar to the description of the 63 acres conveyed to Alexander Joseph Gillis by Malcolm A. Gillis by deed dated August 29, 1947 and recorded on September 29, 1954 with, however, the addition of the following words: "...said description including the southern one-half of interval lands owned by Angus Gillis and divided by him between Donald Gillis and Rory A. Gillis, the father of the grantor herein." It is to be noted that none of the other deeds before us contains such an explanation. The, appellant contends that such explanation of her 63 acres establishes that included therein is the interval or meadowland in dispute. The evidence however does not, in my opinion, support this contention. Dan Hugh Gillis testified at the trial and said that (1) the deed purporting to be from himself to his brother Malcolm A. Gillis dated January 18, 1936 and registered on April 10, 1941 of the 63 acres subsequently conveyed to Alexander Joseph Gillis was not signed by him and hence was forgery; and (2) the circumstances surrounding the giving by him and his wife of the deed to Alexander Joseph Gillis were that it was not until after his brother Malcolm was killed in the Northwest Territories in 1956 that he became aware that Malcolm had sold the 63 acres to Alexander Joseph Gillis and that such came as surprise to him because his father had said that he wished Dan Hugh to have the property with the right to Malcolm to reside there if he wished. He contacted lawyer in Truro and was advised either to ask Alexander Joseph Gillis and his family to vacate the lands or to give them deed to it. He elected the latter course. In the effects of his brother Malcom was deed, or copy, (not registered) from their father to Dan Hugh. He took this deed to lawyer in Inverness who prepared the deed dated November 27, 1956 to Alexander Joseph Gillis. Dan Hugh Gillis said that he did not realize that in such deed he was convey­ing the southern one-half of the interval lands and that he never claimed ownership of the meadowlands in dispute and that he never knew of anyone claiming them except his uncle, Donald A. Gillis. Mrs. Agnes Gillis, the wife of Duncan Alex Ronald Gillis, and mother of the respondent Michael Dan Gillis, testified that she and her husband owned approximately 135 acres of land lying immediately to the north of that of the respondent. They have lived there for thirty-four years. She is now sixty-five years of age and has lived practically all of her life up to the present time in Gillisdale. She testified that her husband and Donald (Dan) A. Gillis worked the meadowlands together until 1946. She said that her husband always asked permission from Donald to go on the meadowlands and "nobody ever went down there without permission from Dan A. Gillis, even Duncan, his father". Mrs. Gillis went on to testify that Alex Joseph Gillis moved to the area in 1949 and that thereafter he always asked permission of Donald A. (Dan) Gillis to go on the disputed lands to cut hay or fish for gaspereaux. She said that she never knew that the meadowland in dispute belonged to anybody other than her son or Donald A. Gillis. Mrs. Gillis testified that Rory Gillis never claimed the meadow but did make hay there with Donald A. Gillis' permission as far back as 1915 and that "Rory never had an interval in his life". If the word "interval" did not appear in the explanation of the lands conveyed by the deed from Dan Hugh Gillis to Alexander Joseph Gillis no problem would arise because it is not disputed that such lands are the southern one-half of lands formerly owned by Angus Gillis. The various witnesses, including Dan Hugh Gillis and Agnes Gillis, appear to consider interval lands as those immediately adjacent to the river. The Shorter Oxford English Dictionary defines "intervale" as inter alia "in N. America: low level tract of land, esp. along river ...by intervals we mean those low lands which are adjacent to the rivers ...." am not convinced that the whole of the 133-acre tract owned by Angus Gillis and divided between his sons Rory and John A. (or Donald) cannot be considered an interval. Be that as it may, am satisfied from the evidence accepted by the trial judge that Rory Gillis never had title, documentary or possessory, of the meadowlands in dispute, from which it follows that Dan Hugh Gillis had no interest in the lands that he could convey to Alexander Joseph Gillis. believe that this is what the trial judge had in mind when, in referring to such deed, he said at p.49 of his decision "that deed by itself proves nothing with respect to the meadowland as far as am concerned without further evidence such as an earlier deed or last will". The trial judge stated at pale 50 of his decision that in concluding that the claim of Mary Josephine Gillis failed, "...I accept the evidence of Mrs. Duncan R. Gillis throughout her testimony. She impressed me with her statements which accept as reliable and credible. The same as far as they assisted can be said for Mr. and Mrs. Michael Dan Gillis and Dan Hugh Gillis." This, of course, is finding of credibility and one that cannot be disturbed unless very cogent reasons exist for doing so. No such reasons have been advanced here. At page 48 of his decision the trial judge said: "I conclude from the testimony and other observations that when the side lines of the Dan A. Gillis (Domhgain) lands are followed from West to East to the waters of the Southwest branch of the Margaree river those include the meadow lot in dispute." "The Defendant must show title by documentary proof, by clear evidence of conventional line or by adverse possession. am not satisfied that she has adduced evidence in support of any of the above to the degree required by law." "...The adverse possession claimed has not been established and so find because it was not adverse, continuous, open and notorious." "I cannot accept the submission that there was conventional line although Counsel of the Defendant worked hard in representing his client to make this out." In my opinion there was ample evidence to support these conclusions or findings and would not disturb them. would but add that the kind of possession that is necessary to extinguish the title of the true owner is stated as follows in Anger and Honsberger, Canadian Law of Real Property 1959 at p.789: "The possession that is necessary to extinguish the title of the true owner must be 'actual, constant, open, visible and notorious occupation' or 'open, visible and continuous possession, known or which might have been known' to the owner, by some person or persons not necessarily in privity with one another, to the exclusion of the owner for the full statutory period, and not merely possession which is 'equivocal, occasional or for special or temporary purpose.'" And see judgment of this Court in Taylor v. Willigar et al. (S.C.A. No. 00258 judgment delivered March 13, 1979 not yet reported.) The question in any given case whether the adverse possession relied on is such as will extinguish the/ title of the true owner is one of fact for the trial judge and should not be disturbed by an appellate court unless, as Mr. Justice Ritchie said in Stein v. The Ship "Kathy K", 1975 CanLII 146 (SCC), [1976] S.C.R. 802 at p.808, the trial judge "made some palpable and overriding error which affected his assessment of the facts". See also Metivier v. Cadorette, 1975 CanLII (SCC), [1977] S.C.R. 371. With respect to the allegation that there was conventional line dividing the properties of the. appellant and respondent the evidence of the surveyors, Harvey and Aucoin, was that there was indeed an old fence in the area in dispute but that it was south of the line dividing the lands of the appellant and respondent. Mr. Aucoin testified that halfway between the road and the river the old fence was thirty feet south of the line but that "as we progressed or proceeded down the fence line to the top of the embankment it's approximately sixty feet to Mr. Harvey's line". If this fence marked conventional line between the properties then the respondent might well be entitled to portion of the appellant's land. He, however, through his counsel, has stated that he is not making such claim. Finally, there is no question but that when the lands of Angus Gillis were divided between his sons Rory and John A. (or Donald), that Rory received approximately 63 acres being the southerly half and John (or Donald) received 73 acres more or less being the northerly half of such lands. This being so, it becomes obvious that the division was straight line division and the acreage shortfall sustained by Rory was due to the bend in the river. If the appellant's contention that it was not straight line division were correct should have expected to find in the deeds relating to the southern one-half reference not to 63 acres but to something like 70 acres and corresponding reduction in the acreage reference in the older deeds pertaining to the respondent's land. I reiterate that in my view the evidence more than amply supports the decision of the trial judge and I therefore would dismiss the appeal with costs. J. A. Concurred in: MacKeigan, .J Hart, J.A. S.C.A. 00259 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: MARY J. GILLIS and MICHAEL DAN GILLIS REASONS FOR JUDGMENT BY: MACDONALD, J.A.
The appellant and respondent were adjoining landowners both claiming title to a portion of meadowland described as interval. Both held their property by deeds obtained at tax sales. Dismissing the appeal, that the respondent was entitled to a certificate of title to the land and a permanent injunction restraining the appellant from using said lands. The meaning of the word interval in describing lands in North America was discussed.