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Real Property Law - ADVERSE POSSESSION - Crown lands - Required elements - Adverse possession - Continuous - Successive occupants

Thursday, March 02, 2017 @ 7:00 PM  


Appeal by the City of Nelson (City) from two judgments of the British Columbia Court of Appeal setting aside two decisions dismissing the Mowatts’ proceedings related to a parcel of land located in Nelson, British Columbia. While the Mowatts took possession of the disputed lot in 1992, their claim rested upon what they said was continuous adverse possession thereof by three families in succession, beginning in the early 20th century. To enforce that claim, the Mowatts brought two proceedings: an action for a declaration that the provincial Crown, which held registered title, did not own the disputed lot and therefore could not transfer it to the City; and a petition for judicial investigation under the Land Title Inquiry Act into their title to the disputed lot. The chambers judge granted the City’s summary trial application to dismiss both proceedings, pointing to what he characterized as an “evidentiary gap”, an interruption in the continuity of adverse possession, running from approximately 1916 to 1920. The Court of Appeal reversed the decision, finding that the chambers judge had erred in his treatment of the evidence of continuous occupation, and concluding that continuous adverse possession of the disputed lot was demonstrated from December 1909 to at least February 1923. In response to the City’s submissions, the Court of Appeal also held that lack of registration did not prevent the transfer to the Mowatts of their predecessor’s interest in the disputed lot, and that the law of British Columbia did not require the Mowatts to demonstrate that their use of the disputed lot was inconsistent with the intended use of the “true owner”. The Mowatts argued that the chambers judge erred in assessing continuous adverse possession by confusing possession with occupation, requiring them to show continuous occupation when the central question went to continuity of possession.

HELD: Appeal allowed. Adverse possession was a longstanding common law device by which the right of the prior possessor of land, typically the holder of registered title, could be displaced by a trespasser whose possession of the land went unchallenged for a prescribed period of time. Such possession was to flow from open and notorious, adverse, exclusive, peaceful, actual and continuous acts. The City argued that to be truly adverse, possession was to entail a use of the property that was inconsistent with the true owner’s intended use of the land. However, the City did not demonstrate that this inconsistent use requirement formed part of the law of British Columbia and therefore ought to have been applied by the chambers judge and Court of Appeal. It was unnecessary for the chambers judge to make an explicit finding that the disputed lot had been abandoned as a precondition to a finding of discontinuity of possession. While the chambers judge occasionally referred to “possession” and “occupation” seemingly interchangeably, it was apparent that he knew he was to look for continuous possession, not occupation. The Court of Appeal’s finding of fact that adverse possession of the disputed lot was continuous from December 1909 to at least February 1923 was not unreasonable. However, it was not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. The Court of Appeal erred by interfering with a factual finding where its objection, in substance, stemmed from a difference of opinion over the weight to be assigned to the evidence. The chambers judge’s finding that the Mowatts had not established uninterrupted adverse possession over the disputed lot from 1916 through 1920 was untainted by palpable and overriding error. His decision was restored.