Supreme Court

Civil Practice and Procedure

Limitation of actions

Real property

Claimant could not establish uninterrupted adverse possession over disputed lot

In 1930, disputed area escheated to Crown. Appellants, M family, commenced action seeking declaration that provincial Crown did not own land and could not transfer it to city, and petitioned for declaration of ownership of land in fee simple in possession. M family claimed that C family lived on disputed area starting in 1909 and G family moved into C home and lived there until 1922. Municipality brought summary trial application seeking dismissal of related action. Trial judge found there was approximate four-year period between last evidence of C arguably living on disputed area and first evidence of G family as residents in area. In second hearing, M family produced further evidence pursuant to s. 11 of Land Title Inquiry Act. Municipality’s motion for summary judgment was granted. M family successfully appealed. Municipality appealed. Appeal allowed. Decisions of chamber­s judge was restored. Given chambers judge’s finding — untainted by palpable and overriding error — that M family had not established uninterrupted adverse possession over disputed lot from 1916 through 1920, it was unnecessary to address submissions of municipality and of Attorney General of British Columbia regarding whether M family’s claim was defeated for lack of registration. GM held no interest in disputed lot and therefore no interest therein passed to M family.

Nelson (City) v. Mowatt (2017), 2017 CarswellBC 400, 2017 CarswellBC 401, 2017 SCC 8, 2017 CSC 8, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellBC 611, 2016 BCCA 113, Saunders J.A., Chiasson J.A., and Harris J.A. (B.C. C.A.).

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