Planting of trees formed visual barrier but did not exclude city from land

Civil Practice and Procedure - Limitation of Actions Real Property

Applicant property owner made claim to strip of disputed land that bordered owner's property and was legally owned by respondent city. Owner claimed that he had had possession through his predecessors in title, since mid-1970's, and city claimed test had not been met, as predecessors did not intend to take possession of city land. City claimed policy was against taking adverse possession of land, intended to benefit public. Owner brought unsuccessful application for adverse possession. Applications judge found that predecessor planted trees to form clear visual barrier, but that planting of trees did not exclude city from land. Applications judge found that owner failed to provide sufficient evidence to meet third branch of adverse evidence test of proving that city had been excluded from possession of disputed land in 10 years immediately prior to when land was first registered in Land Titles system. Owner appealed. Appeal dismissed. Application judge made no palpable and overriding error. There was no error in application judge’s conclusion that owner did not satisfy third branch of test for adverse possession. Application judge’s finding that tree line did not form insurmountable obstacle was factual determination and did not constitute elevated standard in considering third element.

Richard v. Niagara Falls (City) (2019), 2019 CarswellOnt 10629, 2019 ONCA 531, R.G. Juriansz J.A., K. van Rensburg J.A., and David M. Paciocco J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 22302, 2018 ONSC 7389, J.R. Henderson J. (Ont. S.C.J.).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit store.thomsonreuters.ca

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

Ontario Court of Appeal upholds TTC's liability in personal injury case of woman struck by bus

Ontario Superior Court dismisses former wife's claims against late husband's estate

Law Commission of Ontario report calls for modernizing consumer protection for digital marketplace

New judicial appointments announced for Ontario courts

Spirit of Schlifer Award recipients honoured as clinic's clients face mounting challenges

Proposed settlement denied children compensation for loss of care: Ontario Superior Court

Most Read Articles

New judicial appointments announced for Ontario courts

Psychiatrist’s ‘careless’ expert evidence leads to new sentencing for dangerous offender: Ont. CA

Ontario Superior Court sets aside deemed admissions in motor vehicle accident case

Law Commission of Ontario report calls for modernizing consumer protection for digital marketplace