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TRESPASS - To land - Degree of possession required - Particular situations of trespass - Licensee - Crown lands

Friday, July 14, 2017 @ 11:19 AM  


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Appeal by Lionel and Quentin House from dismissal of their action in trespass against Toms. Lionel, a trapper, occupied a lot of Crown land from 1988 onward under a government-approved occupation permit. The land was 200 by 300 feet and bounded by a pond. The occupancy permit stated the purpose as “to construct a commercial resource based cottage”. Lionel built an access road to the cottage from an existing forest road. Lionel annually paid a fee to renew the occupancy permit. From 2000 onward, Quentin House, Lionel’s son, occupied adjacent lands in much the same manner after purchasing permitted land from Clarke. Quentin built a driveway from his property to Lionel's land. Toms occupied lands to the west. In 2010, his occupancy permit was conditional upon installation of sewage and water. The Houses learned that Toms built a road over their lands to access his property. Toms indicated he would return the lands to their natural state after using the road to finish hauling building supplies. Following construction of his cottage, Toms did not construct his own road or remediate the road through the Houses' property. Litigation ensued after Toms tore down a fence and No Trespassing sign. The Houses' action was summarily dismissed on the basis the occupation licenses held by the Houses did not confer any title or interest, and that the Toms road was not incompatible with occupation. The Houses appealed.

HELD: Appeal allowed. The licenses held by the Houses gave a sufficient possessory interest of all of the lands described therein so as to sustain a trespass action against Toms. Toms did not dispute the evidence that his roadbuilding occurred on lands occupied by the Houses. He acknowledged that he took no steps to ascertain land boundaries. The evidence and the record established that Toms built his road on lands covered by the Houses' licenses and occupied by the Houses. The occupancy licenses were not, on their wording, limited to a possessory interest in the lands on which the cottages were situated. Toms' roadbuilding on the Houses' lands was incompatible with their occupation and use. The Crown's underlying title to the lands did not preclude the Houses from excluding the public and Toms therefrom. In deciding otherwise, the application judge misapprehended the nature of the interests conveyed by the Crown to the Houses in their respective licenses, and misapplied the law of trespass. The matter was remitted to the Trial Division for assessment of damages.

House v. Toms, [2017] N.J. No. 246, Newfoundland and Labrador Supreme Court - Court of Appeal, J.D. Green C.J.N.L., M.F. Harrington and L.R. Hoegg JJ.A., June 23, 2017. Digest No. TLD-July102017012