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ADVERSE POSSESSION - Intention (to excluded paper title holder)

Friday, March 08, 2019 @ 8:42 AM  

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Appeal by Taylor from a judgment granting the respondent Estate adverse title to part of the appellant’s land based on adverse possession. The appellant and the Estate owned adjoining pieces of land. The practical access to the Estate lands was by a road that crossed onto the appellant’s lands at one point to bypass a steep ravine. The deceased maintained the road which had been in use for decades. Shortly after the appellant acquired the land in 1991, he discovered the encroachment.  In 1992, he built a fence along the road to contain his cattle without cutting off access to the Estate lands. The appellant testified that in 1992 he discussed the encroachment with the deceased and advised that the road would have to be moved. While the deceased promised to do so, he never did in the following 22 years up to his death and continued to use the road.

HELD: Appeal dismissed. The trial judge did not give the Estate a prescriptive title to an easement. The Estate did not ask for an easement by prescription but for full ownership based on its adverse possession. The Estate did not just by the passage of time obtain an easement, it obtained exclusive use of the land for all purposes. The trial judge’s findings about the nature and quality of the Estate’s possession were available on this record and no reviewable error was shown. When a reasonable time passed after the deceased’s promise to move the road had supposedly been made and he had not moved the road, the appellant was on notice that the deceased showed no intention of following through. Once that reasonable time had passed, the deceased’s occupation became adverse. That reasonable time would have passed in this case well before 10 years before the limitation period expired.

Koziey Estate v. Taylor, [2019] A.J. No. 130, Alberta Court of Appeal, F.F. Slatter, F.L. Schutz and B.K. O'Ferrall JJ.A., February 4, 2019. Digest No. TLD-March42019014