SUPREME COURT OF NOVA SCOTIA Citation: Groves v. Onda, 2016 NSSC 51. Between: Stephen E. Groves and Janice A. Groves. Wayne Onca LIBRARY HEADING

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1 SUPREME COURT OF NOVA SCOTIA Citation: Groves v. Onda, 2016 NSSC 51 Date: Docket: Truro No Registry: Truro Between: Stephen E. Groves and Janice A. Groves v. Wayne Onca Applicants Respondent LIBRARY HEADING Judge: Heard: Final Written Submissions: The Honourable Justice Arthur W.D. Pickup November 5, 2015 in Truro, Nova Scotia Applicant s post-hearing brief, November 24, 2015 Respondent s post-hearing brief, November 27, 2015 Applicant s reply brief, December 3, 2015 Written Decision: February 23, 2016 Subject: Summary: Property; conventional line doctrine; estoppel; possessory title The parties owned neighbouring properties. While there was a surveyed boundary line, the applicants occupied a portion of the lot that the surveyed line placed on the respondent s property. The applicants claimed that the boundary had been determined by agreement between themselves and the respondent s predecessor in title. While the respondent disputed the conventional line claim, he acknowledged that the applicants had established possessory title. However, he claimed that certain alleged assurances they had made had the

2 effect of estopping them from advancing the possessory claim. Issues: Result: (1) Did the application of the doctrine of conventional lines result in the alteration of the boundary as claimed by the applicants? (2) Were the applicants estopped from asserting a claim on the basis of possessory title? Although the applicants had not specifically pleaded the doctrine of conventional lines, their notice of application and the respondent s notice of contest provided a basis for the issue to be raised. The court concluded that there had been an agreement between the applicants and the respondent s predecessor, resulting in an adjustment to the boundary line. The court did not accept that any assurances were given that estopped the applicants from asserting the possessory claim. Accordingly, the applicants had established title by possession in the alternative to title by conventional line. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 SUPREME COURT OF NOVA SCOTIA Citation: Groves v. Onda, 2016 NSSC 51 Date: Docket: Tru No Registry: Truro Between: Stephen E. Groves and Janice A. Groves v. Wayne Onda Applicants Respondent Judge: Heard: The Honourable Justice Arthur W.D. Pickup November 5, 2015, in Truro, Nova Scotia Final Written Submissions: Counsel: Applicant s post-hearing brief, November 24, 2015 Respondent s post-hearing brief, November 27, 2015 Applicant s reply brief, December 3, 2015 Peter R. Lederman, Q.C., for the Applicant Dennis J. James, Q.C., for the Respondent

4 Page 2 By the Court: [1] This is an application by Stephen E. Groves and Janice A. Groves for a declaration that they have obtained ownership over a triangle of land. They also seek damages against the respondent, Wayne Onda, for entering on and damaging the land in question. The triangle of land in dispute is shown at Exhibit 12 of the affidavit of Stephen E. Groves (filed June 10, 2015). [2] The applicants purchased their lot in David Groves, a cousin of the applicant, Stephen Groves, purchased what is now the respondent Wayne Onda s lot at the same time. David Groves sold his lot to Wayne Onda in [3] There is no dispute as to the original surveyed location of the boundary between the parties. The parties agree it is the location as set out in the survey prepared by Stephen Forbes, which is Exhibit A to the affidavit of Wayne Onda. [4] There is also no dispute that a portion of the original surveyed lot of the respondent, Onda, has been occupied by the Groves. The Groves had a lawn installed east of a birch tree planted to mark the boundary line between the two lots and have maintained this lawn since [5] In final submissions, counsel for Mr. Onda admitted that the applicants, Mr. and Mrs. Groves, had proved a possessory title to the lot running from the birch tree back, a short distance to behind the Groves garage. Despite this admission, counsel for Mr. Onda takes the position, on the basis of alleged assurances provided by the Groves, that they agreed not to claim the respondent s property and that they are now estopped from doing so. [6] Another issue that arose is whether a conventional line had been established by David Groves (Mr. Onda s predecessor in title) and the applicants, Stephen and Janice Groves. [7] Before considering these two issues, it is worthwhile to review the evidence of possession by the parties in order to give context to the issues in dispute. [8] The following is the relevant evidence of Stephen Groves contained in his June 10, 2015 affidavit as to the occupation of the disputed land: 5. In 1990 I built a house on our lot, together with a driveway, put in a lawn, which involved bringing fill from the back of the lot to the front and then

5 seeding the area that had been filled. In 1991 I then built a garage behind my house. My cousin David Groves, who is a bulldozer operator, assisted in the construction of the foundation for the garage. 7. Since establishing my lawn on the area now in dispute with the Respondent I have tended it, mowed it and kept it up so as to enhance the visual attractiveness of our house and grounds. I have done so for a period well in excess of twenty years without any objection by anyone. 8. In 2003 my cousin David Groves sold his lot to the Respondent. A true copy of the deed conveying the lot is attached as Exhibit 6 to this my affidavit. 9. Over the years since then I have had discussions with the Respondent about the location of the common boundary line between our lots. I explained to him that I have not been able to locate any survey marker, but believed, as did my cousin David Groves, that the marker should have been directly in front of the spot where I planted my birch tree. I told him that even though my lawn extended to east beyond the birch tree, I was not claiming ownership interest in that portion of the lawn. The Respondent in fact planted a row of small evergreen trees Attached as Exhibit 7 to this my affidavit is a photograph obtained from Google Maps taken in August 2012 showing my birch tree, my lawn extending to the east beyond the birch tree and, in the distance, the line of small evergreens planted by the Respondent. [9] Wayne Onda filed an affidavit on August 31, 2015, in which the relevant paragraphs concerning occupation are as follows: 20. In 2010 the Applicant built an addition onto the back of his garage. This addition had a noticeable setback from the original building. The applicant put a garage door on the east side of the addition facing my lot. He put in a culvert and a gravel ramp to access the door. In order to drive in to or out the addition, the Applicant would be forced to drive onto my land. When I asked the Applicant why he had done it in that way, he said that there is a pool on the other side of the garage and so this was the easiest way. 21. On another occasion, my wife and I were driving past the lot when we noticed the Applicant in his yard. We stopped to speak with Applicant. During this conversation I mentioned again that I found it odd that he had put the door to the addition on my side of the property. I said again that I would like to find the pins and the Applicant then said that he had found the front pin and pushed it down so as not to hit it with his lawnmower. Page 3

6 He said that it must be somewhere between the birch tree and his driveway and reiterated that he would never try to take someone s land from them. 22. The year the County was putting new culverts into the approaches/driveways in the Onslow area I had the County move the approach to my lot and put in a driveway further east as it was very wet at the entrance to the previous approach. 23. I later planted trees on the west side of my lot. The Applicant and I had a conversation as I was doing this and I mentioned that I was planting trees far enough away from the line to allow for an additional row to be put in when we located the line. I said that two rows of trees both look and do better than one. 24. Shortly after I planted the evergreens, I met the Applicant downtown. He told me that he had planted three maple trees in front of his parking spot. Though these trees do run parallel with the property line, they are located on my property. 25. I noticed that the Applicant was again mowing more of my lot. He had now increased the triangle piece to cover the area where I had planted the evergreens. However, at no point has the Applicant mown the lawn beyond the approximate halfway point of our properties depth. 26. The Applicant occasionally used my driveway to access his garage. One day in the spring of 2014, I saw a pile of firewood sitting in the wet, low spot where the old approach to my lot had been. The wood delivery person had come in on my new approach, veered into the wet spot, and had gotten stuck Page 4 [10] Kenda Onda filed an affidavit on August 31, 2015, similar to that of Wayne Onda. Issues [11] The two issues to be determined in this proceeding are: 1. Should the doctrine of conventional lines be applied in this case? 2. Are the Groves estopped from asserting a claim for legal title by acts of possession over the contested property? Issue # 1 - Should the doctrine of conventional lines be applied in this case? [12] At its most basic, the conventional lines doctrine states that if adjoining owners agree on a boundary line between their existing properties, then it is

7 Page 5 binding on their successors in title, even though it is not the true line according to a survey or a deed. [13] The Groves position is that the line between their property and the present property of Mr. Onda was agreed to by Mr. Groves and his brother, David Groves, in [14] Mr. Onda objects to the introduction of the issue of a conventional line, arguing that it was not pleaded and that it is prejudicial to him for the Groves to raise this issue at this time. In the alternative, Mr. Onda says the Groves have not met their burden to establish the application of the doctrine. [15] As to prejudice and the introduction of a new issue, there is reference in the pleadings to the factual basis underpinning this doctrine. For example, the following allegation is found in the Notice of Application in Court: Grounds for the order The applicant is applying for the order on the following grounds: The boundary line claimed by the applicants was accepted by them and the two successive owners of the adjoining lot for a period beginning in 1989 until December of 2014, when the Respondent suddenly repudiated the accepted boundary. He subsequently damaged portions of the lands in dispute in what appears to be a deliberate and ill conceived effort to assert his ownership. [16] Mr. Onda replied in his Notice of Contest: 2. The Respondent denies a mutual acceptance of the boundary. [17] The issue of the mutual agreement as to the boundary was pleaded by the Groves and responded to by Mr. Onda. After this matter was raised by the court Mr. Onda s counsel was given an opportunity to respond and did so by way of post-trial submission. Mr. Onda has not provided any case law to support his position that the issue should not be dealt with, nor did his counsel make any request to file further evidence or submissions. The Notice of Application in Court having contained the factual underpinnings of the doctrine, and given the response in the Notice of Contest from Mr. Onda, I am not persuaded there is any prejudice as alleged. [18] The conventional lines doctrine was defined in Robichaud v. Ellis, 2011 NSSC 86, as follows:

8 27 The doctrine of conventional lines is described in the following terms by Norman Siebrasse in "The Doctrine of Conventional Lines," 44 U.N.B.L.J. 229, at 229: The doctrine of conventional lines may be concisely stated as follows: if neighbouring parties intend to settle the boundary between them, then any boundary line agreed to by them is binding on the parties and their successors in title notwithstanding that it is not the true line according to the deeds or Crown grant 36 Citing Prof. Siebrasse's definition of conventional lines -- "if neighbouring parties intend to settle the boundary between them, then any boundary line agreed to by them is binding on the parties and their successors in title notwithstanding that it is not the true line according to the deeds" -- the respondents say the doctrine requires clear proof of an agreement as to the precise location of the boundary line. They refer to Re Munn, 2001 NBCA 116, 2001 CarswellNB 446, where the New Brunswick Court of Appeal said, at para. 3: As this Court noted in Parlee v. McFarlane (1999), 210 N.B.R. (2d) 284 (N.B.C.A.), at para. 32, the courts of this Province "have long recognized and given effect to agreements, whether express or implied, that settle the boundary between adjoining lots, even though the agreed upon location may be inconsistent with the line dictated by the pertinent deeds or Crown grant." The Court went on to summarize as follows the principles that govern the application of the conventional boundary line doctrine, at paragraph [40]: First, there must be satisfactory evidence that an agreement was reached between the owners of adjoining lands to settle their boundary. See The Doctrine of Conventional Lines [ (1995) 44 U.N.B.L.J. 229]. The burden of proving such an agreement lies with the party asserting it. See Murray et al. v. McNairn (1952), 30 M.P.R. 200 (N.B.C.A.). Second, clear proof of such an agreement and the precise location of the line is required. See Miller (Lewis) & Co. v. Clow (1918), 52 N.S.R. 1 (C.A.). Third, such an agreement may be inferred from the conduct or declarations of the owners of the contiguous lots, if, and only if, such an inference is a logical consequence from proven or admitted facts. [Underlining in original] [19] The following evidence is relevant to the issue of whether there was an agreement between Stephen and David Groves as to the location of the property line between their adjoining properties. [20] David Groves states in his affidavit, at paras. 2 to 4: Page 6

9 2. I can confirm that I sold my lot at Onslow to the Respondent in 2003 for $25, At that time I never discussed with him the location of the boundary between my lot and that of my cousin. 3. Like my cousin Stephen, I never saw the survey marker placed by Ray Fulton at the northwest corner of my lot and I agree with my cousin that our mutual boundary line ran from the birch tree which he planted back to the common marker at the back of our lots. 4. As a bulldozer operator I assisted my cousin Stephen in grading his lot and in creating the foundation for his garage. I agreed with him that the garage was well within the boundaries of his lot, approximately fifteen feet from my lot. [21] As to his alleged agreement with David Groves as to the boundary line, Stephen Groves states as para. 6 of his affidavit: 6. While I was constructing my house and garage, my cousin David Groves and I attempted to locate the survey marker indicating the starting point at the Onslow Road for our mutual boundary line so that I would know how far to extend my lawn and exactly where I should locate my garage. We could not locate any marker as shown on the Fulton plan but do recall finding what I though was a marker at the road some fifteen feet more or less from where I now know that Fulton placed his marker, although I have never since been able to find this possible marker again. My cousin David Groves and I agreed that this was the correct starting point from our boundary and I marked it by planting a birch tree directly in line with where the marker would have been at the edge of the road. I assumed that the line would extend from this tree straight back to the common corner at the ends of our lots, which was marked by a visible survey marker. I then extended my lawn somewhat beyond that birch tree to the east, knowing that this portion of my lawn was on my cousin s lot and without any intent to claim ownership of it Page 7 [22] Clearly, David Groves and Stephen Groves as owners of adjoining properties at the time agreed on the boundary between their respective properties. This agreement is consistent with Stephen Groves having planted a birch tree to mark the spot where the parties had agreed the boundary line was located. [23] Equally consistent with such an agreement is the acts of occupation thereafter by Stephen Groves. He constructed a lawn and thereafter cut and maintained it up to the agreed line. As well, he filed Municipal building permit forms to obtain a building permit and based his lot line on the agreed boundary.

10 Page 8 [24] At the time Mr. Onda purchased the property in 2003, this agreed upon boundary would have been evident. The birch tree was visible, as was the mowed lawn running west from the birch tree. [25] I am satisfied David and Wayne Groves agreed to their mutual boundary, even though as it turned out they were mistaken about the starting point on the road, according to the original survey plan. As a result, pursuant to the doctrine of conventional lines, Mr. Onda is bound by the agreed-upon line between his predecessor in title (David Groves) and Stephen Groves. An order will issue for a declaration of ownership and title to Mr. and Mrs. Groves over that parcel of landing running from the birch tree to the common boundary at the rear of the lot. I direct the Groves to have this line surveyed, and a declaration will issue confirming this line as the common boundary between the parties. [26] Having so found, this determines the matter and it is not necessary to consider Mr. Onda s estoppel argument. However, I will provide some comments on estoppel, in the event I am wrong in my conclusion that the doctrine of conventional lines apply. As I will explain, I am satisfied that the estoppel argument must fail and, therefore, the Groves have acquired the lands to the west of the birch tree by possessory title. Issue # 2 - Are the Groves estopped from asserting a claim for legal title by acts of possession over the contested property? [27] The respondent Onda says the conduct of Stephen Groves amounts to promissory estoppel and, therefore, the Groves are prevented from asserting a claim to extinguish his title by way of a claim for possessory title. He admits that they have proved possessory title, but argues that they are estopped from advancing the claim. [28] Mr. Onda makes reference to the following paras. from Ford v. Kennie, 2002 NSCA 140: 41 Promissory estoppel is distinguished from estoppel by representation in that it encompasses representations of intention or promises, not simply of fact. Hanbury and Maudsley: Modern Equity, supra, describe promissory estoppel at p. 892: The doctrine expanded in equity, so as to include, not only representations of fact, but also representations of intention; or promises...where, by words or conduct, a person makes an unambiguous representation as to his

11 future conduct, intending the representation to be relied on, and to affect the legal relations between the parties, and the representee alters his position in reliance on it, the representor will be unable to act inconsistently with the representation if by so doing the representee would be prejudiced. 42 Unlike estoppel by representation, which requires representation of a present existing fact, promissory estoppel may arise from a representation of intention. The authorities are not clear whether promissory estoppel can create a cause of action. See Waddams, The Law of Contracts, 3rd Edition (Toronto: Canada Law Book Company) p , Turner, The Law Relating to Estoppel by Representation, (London: Butterworths, 1977) at p Page 9 [29] Mr. Onda also made reference to Adelaide Capital Corp. v. Offshore Leasing Inc. (1996), 149 N.S.R. (2d) 281, [1996] N.S.J. No. 98 (C.A.), at para. 52, where the court noted the five essential features of promissory estoppel: 52 The trial judge listed the five essential features of promissory estoppel as outlined by Fridman in The Law of Contracts, Third Edition, (pages ), which are as follows: (1) There must have been an existing legal relationship between the parties at the time the statement on which the estoppel is founded was made... (2) There must be a clear promise or representation made by the party against whom the estoppel is raised, establishing his intent to be bound by what he has said... (3) There must have been reliance, by the party raising the estoppel, upon the statement or conduct of the party against whom the estoppel is raised (4) The party to whom the representation was made must have acted upon it to his detriment... (5) The promisee must have acted equitably [30] Mr Onda submits, as it relates to the issue of the location of the boundary, the applicants and the respondent were in a legal relationship; the applicant Stephen Groves did make an unequivocal representation that he would not rely on the use of the property of the contested land to assert a claim of title; the respondent relied on that representation and altered his conduct by not exploring the survey of the boundary lines until 2014; and, had the applicants advised they claimed possession of the contested land the respondent would have taken steps to clarify the boundary line.

12 Page 10 [31] In conclusion, counsel for Mr. Onda says that all the elements of promissory estoppel are met. [32] Does the evidence support the respondent Onda s position? [33] Turning to the essential elements, I am satisfied the parties were in a legal relationship. [34] The next question is whether Stephen Groves made an unequivocal representation that he would not rely on the possessory use of the occupied property to assert a claim. The representation relied on by Mr. Onda is described at paras of his affidavit: 12. While looking at my subdivision plan, I became uncomfortable with the Applicant s explanation of the pin s location. My wife, Kenda, and I then used a 100 foot measuring tape in an attempt to locate the pin. We measured from the existing pin at the front of the cemetery, working our way back west toward my lot and using the measurements from the plan. This demonstrated that the birch tree was not located where the pin ought to be. 13. Kenda and I then measured the lot from the west to the east, beginning at the west side of the Applicant s lot. This again indicated that the birch tree was not located where the pin ought to be. 14. At that point I took a rake and attempted to remove old grass from the location at which I believed the pin to be. I hoped to hook the top of the pin with the rake. 15. The Applicant was present in his yard during for these measurements. We had a discussion during this and indicated at that time that he planted the birch tree near the location of the pin, but that it may not be directly on top of the pin as he had been unable to find it. 16. At this point, I suggested that I could have someone come in to find the pins. The Applicant stated I was free to do as I liked, but suggested it was an unnecessary expense as we both had legal surveyed lot plans and that he would never use any legal action to claim land that was not his. He said that he would not do something like that. 17. In all conversations, the Applicant always seemed friendly and sincere in what he said and I felt there was no reason to distrust him. I was assured by his comments. [35] Counsel for Mr. Onda suggests that Mr. Groves s reply affidavit does not respond to this allegation and, therefore, this alleged representation is not

13 challenged. With respect, this submission is not supported by the evidence. Paragraph 3 of Mr. Groves s reply affidavit states: 3. With regard to the statement of events contained in paragraphs 11 through 15, I did indicate an interest in purchasing his lot, but I was not present at all when he was making the measurements referred to therein. [36] The implication of the statement being that since he was not present, the representation was not made. [37] This implication was further confirmed by Mr. Groves during crossexamination. Mr. James: So when Mr. Onda raised these issues about where the boundary lines were, and he raised to you that maybe they should get the pins located, you dissuaded him from doing that correct? Mr. Groves: No. Mr. James: You put to him that he need not incur that expense because you would only rely on your own survey. Do you recall making those statements to him? Mr. Groves: No. Page 11 [38] Mr. Groves was consistent in his view as to location of the boundary line. During cross-examination he further confirmed his understanding: Mr. Groves: At the time there was a I believed a marker at the birch tree. Mr. James: And do you recall telling Mr. Onda that he need not worry about confirming exactly where the survey pin was because you would never use acts of possession by mowing the lawn as a basis for legal title? Mr. Groves: By mowing the lawn past the birch tree? Mr. James: And you made that distinction for him? Mr. Groves: From the that I was mowing I told him that I was mowing past the birch tree which I knew was his land. [39] Here Mr. Groves confirms that any assurances given to Mr. Onda were for the property east of the birch tree. [40] Further, in cross-examination :

14 Mr. James: Did you ever make the distinction when you made these assurances to him that your acts of possession that it was only in relation to the lands past the birch tree? Mr. Groves: Yes. Mr. James: Did you ever say that as clearly as what you re testifying before His Lordship? Mr. Groves: Yes. Mr. James: And so you re suggesting that he should have understood your position is that any mowing up into the birch tree was in your view consistent with an of a belief that you owned those lands? Mr. Groves: Correct. Page 12 [41] It defies common sense to suggest that Mr. Groves, who occupied the lands up to the birch tree for twelve to thirteen years with the agreement of David Groves, including building a garage and putting in a lawn, would then tell Mr. Onda in 2004 that he would not claim any lands west of the birch tree. A more logical conclusion is provided by Mr. Groves that when he was asking permission to cut the adjoining lot it was in the context of lands to the east of the birch tree. [42] I am not persuaded that the discussion alleged by Mr. Onda (as set out in paras of Mr. Onda s affidavit) with Mr. Groves took place. [43] I accept the evidence of Mr. Groves that he was not present when the measurements were made and, therefore, I find that no so such discussion took place. He has said so in his affidavit and on cross-examination, and I find his evidence persuasive. [44] Moreover, to make such a statement would be inconsistent with the understanding of the location of his lot line, being west of the birch tree, an area which had been occupied by him and his wife since They had a lawn installed, maintained it and even built a garage almost on the surveyed line, but when they had applied for a building permit it was indicated that the garage would be fifteen feet from the Onda line. This is all consistent with his ownership of the lands from the birch tree west. [45] I am satisfied that any statement made by Mr. Groves was in reference to the unmaintained lands east of the birch tree. I accept his evidence on these critical issues. His testimony was logical, credible, responsive and believable.

15 Page 13 [46] Mr. Onda has not met his burden of proving promissory estoppel as I find that no representation was given in respect to the lands west of the birch tree. [47] Therefore, the Groves in the alternative would be entitled to these lands by possession. This possession has been admitted by Mr. Onda. The occupied lands would need to be defined. However, the extent of the occupied lands need not be determined at this point as I grant judgment on the basis of the conventional lines doctrine. [48] In summary, I am satisfied that the Groves have met their burden of proving a conventional line and an order shall issue in their favour. The line shall begin at the birch tree and run to the common back boundary of the Groves and Onda properties. [49] The applicants have also claimed damages. No evidence was provided as to the quantum of damages, nor was any argument on damages made in the final submission. I decline to award any damages to the applicants. [50] I will hear the parties as to costs. Pickup, J.