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ADVERSE POSSESSION - Required elements - Exclusive

Monday, February 03, 2020 @ 8:52 AM  


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Appeal by the Johnstons from the judgment finding the respondents had acquired a 50’ x 102’ parcel of the appellants’ land through adverse possession and finding the respondents had a prescriptive right of way over the appellants’ land to the beach. The parties owned cottage lots for over 50 years. The path used by the respondents to reach the beach crossed one of the appellants’ lots. The respondents had maintained a garden and shrubs on the appellants’ land since the 1970s. They occasionally mowed the lawn and parked their vehicles on the parcel claimed. In 2006, a construction company built a road to the beach that varied from the original beach path. The trial judge found respondents had right of way over the altered path to beach.

HELD: Appeal allowed in part. The trial judge made a palpable and overriding error in finding adverse possession of the entire area claimed in the absence of proof of exclusivity. Adverse possession was only established in relation to the garden and shrubs that encroached the appellants’ land. The route over which the respondents obtained a prescriptive right of way could not be altered without agreement of the appellants. It was an error in law for the trial judge to conclude that the alteration in 2006 entitled the respondents to use that route to the shore. The respondents had a right of way to the shore over the appellants’ property along the route of the original path.

Johnston v. Roode, [2019] N.S.J. No. 547, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S., M.J. Hamilton and P. Bryson JJ.A., December 19, 2019. Digest No. TLD-February32020002