Bernard and Bernard v Jennings and Hilaire

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Wooding, C.J.,Phillips, J.A.,Fraser, J.A
• Judgment Date: 11 December 1968
• Neutral Citation: TT 1968 CA 104
• Docket Number: Civ. App., No. 22 of 1966
• Date: 11 December 1968

Court of Appeal

Wooding, C.J.; Phillips, J.A.; Fraser, J.A

Civ. App., No. 22 of 1966

Bernard and Bernard

and

Jennings and Hilaire

Appearances:

Stephen Norman - for the appellants.

Mrs. V.O. Alcala - for the respondents.

Real Property - Land — Right of way.

JUDGMENT OF THE COURT:

1 Virginia and Louisa Bernard, hereafter referred to are the appellants, are the children of the late Theodore Bernard who purchased a parcel of land in the ward of Diego Martin in 1910. Together they lived there until his death in August 1947. The appellants inherited the property and have continued to reside in the dwelling house; but in January 1962 they conveyed a part of the land to Elma Chin Aleong (the grand-daughter of the first appellant) and her husband, Michael, who some time between 1962 and 1963 built a house on their portion of the land. The Chin Aleongs gained access to their property by using a track which extended westward from Edward Street over the property of Victoria Jennings and Alice Hilaire, hereafter referred to as the respondents; but on four occasions between June 8 and July 23rd, 1963, that is, almost immediately after the house was completed, the respondents blocked the pathway by erecting a barbed wire fence and placing logs across the track in order to prevent cars from using the way. Insisting that they, and consequently the Chin Aleongs, had an unlimited easement over the respondents' land, the appellants caused the barricades to be removed; but being equally insistent that no such right existed the respondents had them restored. It is in these circumstances that the action from which this appeal arises was brought by the appellants.

2 They claimed a declaration that they are entitled to a right of way on foot and with horses, carriages and vehicles at times for all purposes over a strip of land owned by the respondents which measured, according to a land surveyor, 73 feet in length and 15 feet in width. Actually, this strip of land if properly metalled could form the western extension of Edward Street which debouches into the Diego Martin Main Road; and, being hopeful that this might results Michael Chin Aleong in Julys 1963 asked the St. George County Council to acquire the strip of land for construction as a highway in extension of Edward street which was itself acquired from the respondents in 1932 for construction as a road. In August 1963 the County Council refused Chin Aleong's request; but the appellants had already retained the services of L. Hamilton Murray, a Land Surveyor, whose instructions were to prepare a plan of the properties involved and to provide thereon a road for the Chin Aleongs to gain unrestricted access to their property. Murray advised caution. His suggestion that the appellants provide a way of necessity over their own land for the Chin Aleongs was brushed aside. Upon their insistence he carried out his instructions. His plan was registered on January 17th, 1964 and the appellants filed their action on January 28, 1964 seeking the declaration already mentioned with an injunction and damages.

3 Evidently, the appellant constructed a concrete drain along the strip of land after the Chin Aleongs' house was completed. They claim to have done so on the instructions of a sanitary inspector. At the trial the respondents relying upon sec. 20 of the Supreme Court of Judicature Act, 1962, sought leave to amend their defence by adding a counterclaim for damages for trespass occasioned by the construction of the concrete drain in or about 1963. This application was refused. Kelsick, J. who heard the action granted a declaration in favour of the appellants of a limited right of way restricted to a strip of land considerably smaller than that claimed by them. He made no order of injunction but awarded $50 damages and directed that there be no order as to costs. Both parties appealed.

4 Contending that the judgment is against the weight of the evidence the appellants seek a declaration in terms of their claim. They submit also that the learned trial judge misdirected himself as to whether or not they had partially abandoned their right of way and they appeal specifically against his order as to costs.

5 The respondents in their cross appeal contend that the learned trial judge erred firstly, in granting a right of way other than that claimed by the appellants; and secondly, in awarding damages. They question also the discretion exercised by the learned trial judge in refusing their application for leave to counterclaim.

6 Having regard to the findings of fact by the learned trial judge I think the issues are narrow. I think also that where competing claims arise from the same subject matter, a Court ought to respond favourably to the provisions of sec. 20 of the Supreme Court of Judicature Act, 1962, unless doing so may prejudice the rights of the opposite party; so that, for example, a party will not be allowed to amend his pleadings by setting up fresh claims in respect of causes of action, which, since the issue of the writ have become barred by the Limitation of Actions Ordinance, Ch. 5 No. 6.

7 The evidence accepted by the learned trial judge disclosed that Theodore Bernard and his agents between 1910 and 1947 regularly conveyed cocoa and copra from his estate by donkey and mule drawn cart to his property where it was stored before transportation to the city; and in the process he used a strip of land, part of the respondents' property, for graining access to his property on foot, and also by donkey and mule drawn cart, The precise point to which the user extended westward was held to be located 5 to 6 feet west of Bernard's dwelling house and thence it extended eastward to the western end of what is now Edward Street. Evidently, the transportation of produce did not continua after the death of Bernard in 1947 but it was accepted that the way continued to be used unabatedly by pedestrians, presumably by the appellants and their agents. In the light at' that evidence the learned trial judge held that a right of way on foot had been established by virtue of ss. 2 and 4 of the Prescription Ordinance, Ch. 5 No. 8, but the enjoyment of the way for animals and animal drawn vehicles not having been exercised for mare than 16 years up to the time of action the claim to such a right under the statute should be presumed to have been abandoned. It is to be observed that the right of way as claimed was wholly devoid of precise definition. Consequently, the learned trial judge concluded –

“that a right to a footway had been established under the Prescription Ordinance over the servient tenement from Edward Street but only as far as the western side of the kitchen and for access only to the dominant tenement”.

8 Holding however that the obstruction of the way was largely justified “inasmuch as wheeled traffic was not entitled to travel along...