IN THE HIGH COURT OF JUSTICE BETWEEN CYNTHIA WHARTON-SMITH AND SANDRA BIRBAL BEFORE THE HONOURABLE MR. JUSTICE PETER RAJKUMAR.

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1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE HCA: No.840/2001 BETWEEN CYNTHIA WHARTON-SMITH AND SANDRA BIRBAL Plaintiff Defendant BEFORE THE HONOURABLE MR. JUSTICE PETER RAJKUMAR APPEARANCES: Mr. Anthony Manwah and Mr. Keith Scotland for the plaintiff Mr. Kelvin Ramkissoon for the defendant Judgment The Claim The Plaintiff claims a declaration that the Defendant s title in a portion of land comprising square metres is extinguished and a declaration that she is entitled to occupation and possession of that disputed portion of land. She also claims an order that the Defendant demolish the foundation wall constructed by the Defendant on the disputed portion of land. The Plaintiff also claims an injunction restraining the Defendant whether by herself, her servants or agents from allowing water to escape from the Defendant s lands onto the disputed portion of land and the Plaintiff s land. The writ of summons was filed on 2 nd April Attached thereto is a plan by Albert Haynes dated 23 rd September 2000 commissioned by the Plaintiff. She claimed to have been in continuous and uninterrupted occupation and possession. It is not disputed that from 1977 to 2000 that the Plaintiff s chain link fence enclosed the disputed portion of land. The issue therefore is whether that fence, which is admitted on the pleadings to be on the Defendant s land enclosed that portion of land

2 with permission of the Defendant and her husband or whether there was no such permission and it is therefore effectively adverse possession of the disputed portion. If the disputed portion was occupied by virtue of a licence from the Defendant then it is trite law that such occupation would not be adverse to the Defendant s title so as to be capable of extinguishing it. This is almost entirely a question of fact and depends upon whether the Plaintiff s or Defendant s version of events is accepted. I consider the inherent probability of each version, the demeanour of the witnesses under cross-examination and my assessment of their frankness with the Court, as well as the consistency of their evidence with the documentation before the Court. Issues I find the issues to be as follows: (1) Whether there was an oral agreement between the Plaintiff and her husband and the Defendant and her husband for the occupation of the disputed portion of land by the erection of a fence thereon enclosing the disputed area. (2) Whether the Plaintiff s property has been damaged by the flow of water thereon from the Defendant s land. (3) Whether the Defendant s property has been damaged by the flow of water from the Plaintiff s land. Disposition I make the following orders: (a) (b) The plaintiff s claim for a declaration that the Defendant s title to the disputed portion of land [as described in the plan attached to the Writ of Summons and marked A filed herein April 2 nd 2001] is dismissed. I grant the injunction sought in the Statement of Claim restraining the Defendant whether by herself, her servants or agents from allowing water to escape from the Defendant s lands onto the disputed portion of land and the Plaintiff s lands. 2

3 (c) (d) (e) (f) A declaration that the Defendant is the owner of the disputed portion of land [as described in the plan attached to the Writ of Summons and marked A filed herein April 2 nd A declaration that the Defendant is entitled to occupation and possession of the disputed portion of land. As each party has been partially successful I make no order as to costs. Liberty to apply. The Plaintiff s case Her claim arises out of allegations that on 11 th May 2000 the Defendant wrongfully entered the disputed portion of land, wrongfully took possession of same and trespassed thereon. Specifically she claims that:- (1) On 11 th May 2000, the Defendant laid a foundation on the disputed portion of land and removed the chain link fence and two iron posts constructed thereon by the Plaintiff. The Defendant constructed a wall on the said foundation which contained a number of weep holes made of PVC. (2) On 30 th June 2000, the Defendant caused a tractor to encroach on the disputed lands, removing parts of and damaging the remainder of the chain link fence. (3) On 27 th August 2000, the Defendant entered on the disputed portion of land and brushcut a portion thereof. (4) During the month of August 2000 and whenever it rained, water from the Defendant s land poured through weep holes in the wall and entered onto the Plaintiff s land causing erosion of the land below the wall. (5) On 30 th November 2000, the Defendant by her son, sprayed the disputed portion of lands, as well as portions of the plaintiff s Lots 6 and 7, with weedicide. (6) On 4 th November 2000, the Plaintiff allegedly caused one part of the fence which had been removed and left open by the Defendant to be replaced. On 2 nd December 2000, she observed that a hole had been made in the fence through which access could be gained from the Defendant s property to the Plaintiff s property. 3

4 Despite all these allegations, no injunction was sought at the time of these events which spanned a period from 11 th May 2000 to 2 nd December The writ was actually filed on 2 nd April The explanation for this is that the Plaintiff was awaiting the Surveyor s report. That Surveyor s report as previously mentioned was dated 23 rd September The Defendant s case The Defendant, however, contends that the Plaintiff and her husband erected a fence which ran in a north to south direction in or about 1977 and that, after the erection of the said fence, it was discovered that the fence wrongly encroached on the Defendant s property. After discussions between the Plaintiff s husband (deceased), the Defendant and her deceased husband agreed not to insist that the Plaintiff and/or her husband remove their fence. It was permitted to remain after the acknowledgement by the Plaintiff and her deceased husband that they had encroached on land belonging to the Defendant. The Defendant contends that because of the position of the Plaintiff s property in relation to hers and the Plaintiff s improper drainage, this caused water to flow toward the Defendant s land undermining the foundation to the Defendant s house and causing and occasioning repair work of various types. Due to continuous damage because of the Plaintiff s improper drainage, the Defendant decided to construct a retaining wall to minimise such damage. The Defendant asserts that she discussed with the Plaintiff the damage to her property. It was agreed that the Plaintiff would build a drain to the back of her home and direct water from the property. The Defendant reminded the Plaintiff that her fence was on the Defendant s land and that the Defendant was now going to build the retaining wall and that the fence would have to be moved. She contends that the Plaintiff said she would have a survey done to establish how far back her fence would have to be moved. That survey was conducted by Mr. Haynes who pointed out the boundary markers to the Plaintiff and the Defendant and, in the presence of the Defendant and Mr. Haynes, the Plaintiff and her son indicated that they would re-fence along the boundary as pointed out by Mr. Haynes. 4

5 The Defendant counterclaimed the cost of repairs to her premises in the sum of $150,000.00, but provided no evidence at trial of expenditure of this amount. She also counterclaimed a declaration that she was entitled to occupation and possession of the disputed portion of land, possession of the disputed portion of land, an injunction restraining the Plaintiff whether by herself, her servants or agents from allowing water to escape from the Plaintiff s lands onto the disputed portion of lands and into the Defendant s land and an order that the Plaintiff do demolish the existing offending fence on the disputed portion of land, in addition to the sum of $150, for damage done to her property. The Plaintiff in reply denied that she or her husband entered into the alleged oral agreement with the Defendant or her husband. Evidence at trial Both parties gave evidence and one additional witness was called on behalf of the Defendant, whose testimony I accord no weight as I found it unhelpful to the issues to be decided in this matter. Numerous photographs were tendered into evidence, as well as an agreed bundle of documents and a photocopy of a receipt (Exhibit SB.4) dated 8 th September The photographs clearly show weep holes in the Defendant s wall through which water was, at the time that they were taken, flowing onto the Plaintiff s property. Evidence of the Plaintiff Cynthia Wharton Smith, in her witness statement filed on 27 th June 2007, attested to the fact that she was the owner of various parcels of land including an area described as an open space which is to the back of the Defendant s land and Plaintiff s property on which her house stands. The Defendant s property is to the west of the Plaintiff s property, on which her house stands. The Plaintiff claimed that when she bought the open space, there was an access road about 8 metres wide running along her western boundary to the open space. In 1977, the Plaintiff and her husband decided to construct a fence on the western boundary. A Land Surveyor was retained to establish the boundary line between the 5

6 two properties. He did so and they built a chain link fence with iron posts on this boundary line. This fence was on the western side of the disputed area and on the western side of the access road. (It would therefore have enclosed it within the Plaintiff s yard). She claimed to have always been in possession of the disputed portion. She claims on 11 th May 2000 that without any notice or warning whatsoever, the Defendant removed a part of her fence and began laying a foundation in the disputed area. She took photographs of that foundation and the wall which was constructed thereon in a north-south direction. She called Mr. Haynes and informed him what happened and he came on 23 rd May and re-surveyed the land and produced the plan dated September She testified that on 30 th June 2000 the Defendant continued with the construction works and had a tractor bulldoze a portion of her fence. On 1 st July 2000, she took photographs of the damaged fence. On 7 th July 2000, her Attorneys at Law wrote to the Defendant asking her to cease construction. On 27 th August 2000, the Defendant caused workmen to come over the fence onto what she claimed were her lands and cleared and brushed a portion of the disputed land. The wall constructed by the Defendant allegedly had a number of weep holes which allowed water to drain from the Defendant s land. On 27 th August 2000, she took pictures of the water seeping out of those holes. I deal first with the issue of drainage. The drainage issue the Plaintiff s Water Save for its purported conclusions of law, which I ignore, I accept the report by Mr. H.O. Phelps, a Chartered Engineer, which was attached to the witness statement of the Plaintiff. This was an agreed document which corroborates the Plaintiff s assertion that it is the natural contour of both her property and the Defendant s property which accounts for the flow of work observed. He further reports that the Defendant s eastern portion of their land connected to the roadway was a gully which had been filled in by the developer up to a point. It was not filled in towards the back of the Defendant s land. It therefore remained a natural watercourse which received drainage water from the Plaintiff s land and from the Defendant s land. 6

7 In that report he suggests that the cracks which have developed in the walls and floor of the Birbal house were likely to have been caused by settlement of the fill on which the foundations of the house were constructed. He also concludes that there was no evidence of erosion in the gully or a drainage depression that would cause a landslip or an undermining of the foundations of the Birbal house and he finds that that gully in fact is stable and not being actively eroded. He tends to support Mrs. Wharton- Smith s suggestion that the flow of rainfall runoff from her property to the Birbal property over the surface ending up in a gully south of the Birbal property is simply the result of the natural topography of the area. Mrs. Birbal testified that she believed that what was responsible for her wall (that is, the initial wall) and her steps being broken was water that came from Mrs. Wharton- Smith s household water years ago, constantly leaking tank, sewer problems, soakaway problems and a 4-inch pipe she put under the Defendant s retaining wall. She identified the 4-inch pipe as being one in the photograph which was tendered into evidence as SB.3C. That photograph appears to show a PVC pipe very close to the boundary between the Plaintiff s land and the Defendant s land. Insofar as it is a drainage pipe, it should not be there since, if it is connected to a source of water, it could serve to undermine the land of the Defendant in the vicinity of the boundary between the Plaintiff and the Defendant. However, I find that insofar as it is contended that rain water or runoff comes to the Plaintiff s property, this is not a matter for which the Plaintiff is culpable. If natural runoff following the topography of the Plaintiff s and Defendant s land is augmented by either a constantly leaking tank or sewer problems or soakaway problems, then those are rectifiable causes which should be rectified. However, there is insufficient evidence that there still exists water from a leaking tank or sewer problems. Further there is no evidence that the 4- inch PVC pipe lying on the ground is connected to any source of water or is a drainage pipe at all. Were it not for the absence of such evidence, I would have made an appropriate order in relation thereto. However, I find that insofar as it is contended that rain water or runoff comes to the Plaintiff s property, this is not a matter for which the Plaintiff is culpable. I find also that there is no evidence of water flowing from the Plaintiff s land onto the Defendant s land causing damage to the Defendant s house. 7

8 Having seen the photographs and heard testimony in relation thereto, I conclude that it is, on a balance of probabilities, likely the natural slope of land is from the road to the back of the Birbal property, as well as from the Wharton-Smith property to the Birbal property. I accept the Plaintiff s evidence in this regard. Drainage the Plaintiff s Water Mrs. Birbal insisted that she had a conversation with the Plaintiff before she constructed the second retaining wall. She testified that she could not see where the drainage holes were but she questioned the people (who built it) after and they told her that there were a couple of holes. However, since the land was on a slant, she believed water would drain down to her land and all water would escape on the southern side of her own property through the weep holes. In relation to the photographs showing water coming through weep holes on the Defendant s retaining wall, she explained that those photographs were taken before the retaining wall had been completely filled to the top with soil and when the backfill that was within it was still loose. In those circumstances, the water would flow through the weep holes. She suggested the water flowing through the weep holes shown the photographs C2 and C3, was a temporary phenomenon associated with the fact that the backfilling of the area within the retaining wall had not been completed. The photographs C2 and C3 were taken on 27 th August 2000 according to the Plaintiff. I find that there is evidence of water from the Defendant s land emanating on occasion through weep holes in the retaining wall, though there is a suggestion by the Defendant and some evidence from the photographs that the majority of the water will flow through the weep holes in the retaining wall to the south of the Defendant s property, with little flowing through weep holes to the east of the Defendant s property or onto the Plaintiff s property. I find that even if that is so, there is no reason for weep holes to be exiting to the east and to permit emanation of water, no matter how little, onto the Plaintiff s property. According to the Defendant s own evidence, there is no need for weep holes to exit onto the Plaintiff s property if the majority of drainage from the area within the retaining wall would flow to the south of the Defendant s property. Accordingly, all 8

9 weep holes exiting the Plaintiff s retaining wall which are placed so as to permit the emanation of water onto the Plaintiff s property should be sealed. The photographs attached to Professor Phelps report clearly show huge cracks in the walls of the Birbal house albeit not caused by any act or default of the Plaintiff, which required the Defendant to secure her property from further damage by the construction of her retaining wall. The access road The Plaintiff claimed that when she bought the open space, there was an access road about 8 metres wide running along her western boundary to the open space. The Plaintiff clearly believed that there was an access road running along her western boundary to the open space. She claimed that the fence that she constructed in 1977 was on the western side of the access road. In the course of cross-examination of the Defendant, the Defendant referred to her eastern boundary and the description thereof in her memorandum of transfer. Her property was described as: All and singular a portion of a parcel of land which said portion of land is shown as Lot No. 8 and coloured pink on the plan marked X to the Memorandum of Transfer dated the 7 th day of December 1968 and bounded on the north by road reserve 33 feet wide on the south by lands of A.A. Howard now A.S. Bates on the east by a reserve 10 feet wide and also by St. Augustine lands now M. Smith and on the west by Lot No. 9 and which parcel of land is also shown as Lot 8 on the general plan registered in Volume 1586 Folio 27 (save and except thereout a reserve for a lane along the eastern boundary line measuring 10 feet along the northern boundary line and 218 feet along the eastern boundary line together with the right of way now set out therein). The Defendant testified that that reserve for a lane along the eastern boundary line was subsequently sold to the Defendant and her husband by the developer and her explanation for that was that the developer approached her husband and herself and offered to sell that to them to increase the width of their property. The Plaintiff would not have required that reserve any longer because the Plaintiff had acquired the open space, and would have had access to the open space (behind the Defendant s land) through the Plaintiff s own existing land. The Plaintiff would not have required that reserve any longer. Her copy of the receipt given to the Defendant for the purchase of that reserve was tendered into evidence without objection and marked SB.4. The 9

10 Defendant testified that the purchase price of the land was at 45 cents per square foot. The receipt was for the sum of $ and the area of the reserve was 10 feet by 218 feet. Calculation of that area of land, 218 x 10 at a price of 45 cents per square foot, tallies with the amount on the receipt and corroborates the Defendant s assertion that that road reserve was owned by her, having been purchased by her and her husband. This appears not to have been known by the Plaintiff. The Plaintiff believed that her chain link fence had enclosed the road reserve. She also believed it to be 8 metres wide. Did the Plaintiff think that she had fenced the road reserve within her fence? Her evidence suggests that she did think so. At least at the time of trial however, if that was so and not just an afterthought, then it would be expected that she would have told the Surveyor that this is so and that he would have reflected a road reserve on the survey plan, if such then existed. This witness testified in answer to the question: Who do you understand would own a road reserve in any land development. Her answer was: The person at the end of the road. It is clear that this witness believed that her land, the open space, was at the end of that roadway and therefore she was of the view that she owned the road reserve. In answer to the question: You operated under the apprehension that you were entitled to own the road reserve between the Birbals and yourself, her answer was: Yes. This is inconsistent with the Defendant s Deed or indeed any documentary evidence. The Plaintiff testified in response to the question - When the Birbals discovered the fence you said to them you had already spent so much money, - This never happened. I have a letter which was never filed. The whole thing is a fabrication. It was put to her that she always knew that the disputed land was the Birbal s land. Her answer was: It could not have been. There was a road between her property and mine and I said this yesterday when talk of access road came up. She insisted that the disputed area was a piece of property being used to access the property to the back. 10

11 The letter that the Plaintiff claimed for the first time under cross-examination to have was the subject of an attempted application to introduce it into evidence. This letter was not produced to the Court. This letter was not disclosed in discovery, was not referred to in her witness statement and the production thereof by the Plaintiff in Court under cross-examination was objected to by Counsel for the Defendant. In the circumstances, the letter, assuming it existed, was not admitted into evidence, there being no satisfactory explanation as to why it could not have been attached to her witness statement or disclosed previously on discovery After objection by Attorney for the Defendant, that application was withdrawn. There is nothing in the evidence, in the numerous photographs or in the plan which shows that there was at the time of construction a road or a roadway or a lane separating the Plaintiff s land from the Defendant s land. It is clear that there was a fence between the Plaintiff s land and the Defendant s land but no roadway or lane between them. The reality on the ground is consistent with the evidence of Mrs. Birbal that in fact whatever road reserve once existed, was subsumed in the Defendant s land when the Defendant purchased same although they received no document of title despite several requests and efforts to get same. This accounts for the reality on the ground which was simply a fence separating the two parcels of land and vegetation on either side thereof. I find the Defendants evidence on the road reserve and the ownership and/or her belief in ownership thereof credible and consistent with the documentary evidence and I accept it. The survey The Defendant testified at paragraph 9 of her supplemental witness statement: During the period when the wall was being built my neighbour, the Plaintiff, never complained of same and the work was allowed to be completed. The surveyor had come and identified and defined the boundaries between the parties. The surveyor also inserted pickets along the boundary line and it was exactly on this line that the wall was put up. 11

12 This evidence is consistent with that of the Plaintiff. It is clear the Surveyor did come and that the result of his survey was reflected in his plan dated September The Surveyor himself was not called to give evidence. However I find it reasonable and I accept that he would have come and identified the boundary between the parties, and this explained why the wall being constructed by the Defendant was permitted to be completed without proceedings being filed earlier. If it were otherwise, then the survey plan would have been immaterial. The Plaintiff s claim is based upon adverse possession. It is not based upon the Plaintiff s wall encroaching upon land to which the Plaintiff has title by deed. If she in fact believed that she had title to land by adverse possession and that her possession extended to all land east of the chain link fence that she and her husband had constructed in 1977, then she could have instituted proceedings immediately that there was any encroachment in the area beyond to the east of that fence. Having seen the Plaintiff testify, I have no doubt that she would have immediately asserted any rights that she believed that she had without delay. I am equally certain that construction of a wall would only have been permitted if the Plaintiff were uncertain of her rights over the affected area. If in fact she were not occupying the land to the east of the chain link fence by permission, agreement or consent of the Defendant, she would not have been uncertain of those rights The chain link fence had been there since The Defendant s activities were taking place on the Plaintiff s side of that fence. Why then commission a survey after the work commenced? The survey would not have been required to establish that the Plaintiff had been in continuous and uninterrupted occupation of any area of land. That would have been a matter of fact, not a matter to be determined by a survey. Conclusion I consider that it is more likely than not on a balance of probabilities that the Plaintiff had the survey performed hoping that it would reveal that the wire fence was in fact on a road reserve [which she believed she owned] and not on the Defendant s land. In fact that survey, which is the only survey before the Court (and which is in evidence by consent,) reveals clearly that the Plaintiff s wire fence was on the Defendant s land. I find that if the Plaintiff really believed that the land within her fence was her own, either because it formed part of her parcel of land or because she 12

13 had fenced a portion of road reserve which was for the benefit of other land that she owned, then there would have been no need for her to have commissioned a survey. Her response to the Plaintiff s alleged encroachment beyond her wire fence would have been then, as it is now, something like the following- (i) I have occupied the portion of your land to the east of my wire fence since 1977 and before, that is, for a period of more than 16 years. (ii) (iii) That is my property because it forms part of my parcel of land and/or because it forms part of a road reserve which is for the benefit of my property and which leads to the open space behind your property which is also mine. Therefore any incursion beyond that wire fence is a trespass. Her response would not have been to commission a survey because a survey would have had no impact upon her claim to have enjoyed that land since 1977 and before, and to have acquired rights thereto by adverse possession by occupation, if she believed this was by right. I find that the Plaintiff would only have behaved otherwise if the position were in fact as suggested by the Defendant, that is, agreement between the Plaintiff and the Defendant in 1977 that the Plaintiff had encroached upon the Defendant s land and that the Plaintiff occupied the Defendant s land to the east of that encroachment by the wire fence, only by permission licence or consent. I find, therefore, that it is more likely on a balance of probabilities that the Defendant s wall was constructed after consultation with Plaintiff and the Surveyor was commissioned to establish the boundary markers where the Plaintiff could replace her fence. I also accept the Defendant s evidence that some damage was occasioned to the chain link fence in the course of construction but that that damage was rectified and the photographs simply show the position pre-rectification. Accordingly I make the following orders:- (a) The plaintiff s claim for a declaration that the Defendant s title to the disputed portion of land [as described in the plan attached to the Writ of Summons and marked A filed herein April 2 nd 2001] is dismissed. (b) I grant the injunction sought in the Statement of Claim restraining the Defendant whether by herself, her servants 13

14 (c) or agents from allowing water to escape from the Defendant s lands onto the disputed portion of land and the Plaintiff s lands. (d) A declaration that the Defendant is the owner of the disputed portion of land [as described in the plan attached to the Writ of Summons and marked A filed herein April 2 nd (e) A declaration that the Defendant is entitled to occupation and possession of the disputed portion of land. (f) As each party has been partially successful I make no order as to costs. (g) Liberty to apply. Dated the 9th day of June 2008 Peter A. Rajkumar Judge 14