Brammer v Volney

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Illes J.A.,Persaud, J.A.
• Judgment Date: 28 November 1986
• Neutral Citation: TT 1986 CA 39
• Docket Number: No. 84A of 1985
• Date: 28 November 1986

Court of Appeal

Gerard des Iles, J.A.; Narine, J.A.; Persaud, J.A.

No. 84A of 1985

Brammer

and

Volney

Appearances

Mr. Christopher Hamel-Smith for the appellant.

Mr. Stanley Marcus for the respondent.

Real property - Boundary — Whether drain constituted western boundary of respondent's property — Evidence that drain was not in existence at time survey for subdivision of land was made — Appeal allowed.

Illes J.A.

1 This appeal arises out of a boundary dispute between the owners and occupiers of two adjacent parcels of and situate at Fairview Development Moka Estate off the Moka Road, in the ward of Diego Martin known as lots 44 and 45 respectively. The Appellant is the owner of lot 45 and the Respondent the owner of lot 44 which is to the East of lot 45 and both lots lie to the north east of a street known as Street A on the Farrell plan off the Moka Road facing the St. Andrews Golf Course, Moka, in a south easterly direction. The Farrell Plan is a General Plan of the development prepared by Mr. Fred C. Farrell, a licensed land surveyor, and showing lots 44 and 45 (“the said lots”).

2 By his Statement of Claim the appellant pleaded inter alia that lot 45 consisted of 9188 superficial feet and was abutted on the north partly upon lot 46 and partly upon lot 42 and on the south partly upon lot 44 and partly upon Street “A” 33 feet wide on the East partly upon lot 42 and partly upon lot 43 and on the West partly upon lot 46 and partly upon the said Street “A” 33 feet wide and which was delineated and coloured pink on a plan and described in a Deed registered as No. 2198/82 a Deed of Conveyance from Fairington Limited formerly Fairview Limited a company registered in Trinidad and Tobago as vendor and Rupert Aqui and Annie Aqui as purchasers, the predecessors in title of the appellant.

3 The respondent in his defence pleaded that by deed registered as No. 18114/81 executed on 5th August 1981 one Lionel Bridgeman the father-in-law of the respondent purchased from the said Fairington Limited (formerly Fairview Limited) “all and singular that parcel of land situate in the Ward of Diego Martin in Trinidad comprising seven thousand, nine hundred and ten (7,910) square feet (being portion of the lands described in the First Part above) and bounded on the North partly by Lots 42, 43 and 45 and on the South by road reserve 33 feet wide and partly by a road reserve 25 feet wide on the East partly by Lot 43 and partly by a road reserve 25 feet wide and on the West partly by a Lot No. 45 and partly by a road reserve 33 feet wide which said parcel is shown coloured pink and numbered 44 on the plan hereto annexed and marked “A”.

4 The respondent then pleaded that on 16th September, 1981 the said Lionel Bridgeman went into possession of the said Lot 44 comprising 7,910 superficial feet and remained in continuous and undisturbed possession thereof until the month of October 1982 when pursuant to an agreement of sale he let the Respondent into possession thereof and he has since acquired title thereto. Further around September 1983 the Respondent constructed a concrete fence or wall around the said lot 44 upon which he had constructed a dwelling house in which he and his family reside, That section of the said wall along what he calls the boundary common to lots 44 and 45 was built at a distance of “12 feet from the interlot drain and not on the plaintiff's (Appellant's) land as alleged in the Statement of Claim”. The respondent further states that the appellant claims that the interlot drain was built on his land and the Respondent disputes that, and contends that because the drain was destroyed by the Appellant he has suffered loan and damage and he counter-claimed against the Appellant in trespass and nuisance and for an injunction to replace the drain and to restore the free flow of water into and out of the said lot 44.

5 The appellant's main complaint in his Statement of Claim was that on or about 27th September, 1983 the respondent had constructed a concrete wall on his the appellant's land about 3t from the boundary with the defendant's land despite protestations by the appellant and in spite of a letter dated the said 27th September 1983 from the appellant's solicitors asking that the wall be removed within seven days thereof or legal proceedings would be instituted to enforce its removal.

6 The letter was ignored by the respondent and the wall was completed on or about the 10th October 1983 and is 100’ long 6’ in height. It is significant to note in my respectful view, that the Respondent dues not plead that the drain was the boundary between his lot 44 and that of the appellant's lot 45 nor that the ground under the said drain was not conveyed to either party.

7 The learned trial judge in his judgment of the 29th April, 1985 held in favour of the Respondent, as follows:

• “1. The common boundary between the parties that was established by their common vendor, the land developers, was the drain that the developers caused to be laid done between the lots.

• 2. The wall which the defendant built lies along land near to that boundary line and within the cartilage of the defendant's own land.

• 3. The plaintiff by his removal of the drain, unlawfully interfered with the defendant's right of user of that drain, which by the deeds of both parties was dedicated to their common use, Both deeds are shown to contain the following clause in identical terms:

  ‘all persons purchasing or owning land forming part of the said building estate are and will be entitled to the right to use the said roads and drains constructed by the vendor over the said Building Estate and the said lands but subject to the covenants on the part of each such purchaser to observe the stipulations set out in the Third Schedule hereto.’”

“There will therefore be judgment for the defendant on the claim with costs”.

8 The respondent also succeeded substantially on the counterclaim and even though the trial judge found that no claim had been made “specifically for the interference of his right to use the drain” he found that the respondent's land became flooded during the rainy season and awarded $480,00 special damages and $1,000.00 general damages for nuisance.

9 The learned trial judge found that the central issue between the parties in the case was “where the boundary line between the two properties should be drawn” and he proceeded to quote from the evidence of the appellant as follows:

“I went on the land fox the purpose of clearing the lands. In October 19829 I brought in a bulldozer and cleared and raised the level of the land by 1 foot. When I cleared the land I discovered a drain running North to South. There were points on the western boundary but none on the East. At that point I could not discover whether the drain was the boundary or not. I consulted an unlicensed surveyor. He did the necessary searches and placed two wooden pickets on the eastern boundary …

I communicated with the defendant about February 1983. The first thing that I noticed was that the pickets had. been removed. The defendant indicated to me that these pickets had been wrongly placed”.

10 The trial judge found that the Appellant then consulted a licensed land surveyor in the person of Arnold Fan Fortune who carried out a survey of the boundaries of tot 45 on behalf of the appellant using as the basis thereof” the General Layout Plan of the 62 parcels comprising the Fairview Development Estate which was prepared as I have already said by Mr. Fred C. Farrell a licensed land surveyor for the Estate at the developers’ request and from which Mr. Fortune made an enlargement of the appellant's lot. In examination in chief Mr. Fortune said that for the purpose of the survey he “got a deed from Mr. Bramrner. (It had a plan attached to it. ….) The documents I had were a copy of the general plan - the ‘blown up’ plane and Mr. Brammer's deed. I had no other document”. The copy of the deed that was tendered in evidence had no plan attached however.

11 The judgment quotes further from the evidence of Ramon Fortune as follows:

“When I went on the site I found no marks on Lot 45 (the plaintiff's lot). I had to place boundary marks. The marks I put and the marks found for 41, 46 and 47 are shown on the plan. These marks agreed with what was on the original plan A.B.1. Irons found on lots 41, 46 and 47 were original marks. These marks conformed to the distances and bearings as shown on Mr. Farrell's plan …

Once a surveyor finds two marks agreeing in bearing and distance with the previous survey he assumes that he is on the right track in the footsteps of the previous surveyor. I went on to find four marks. That makes me certain that I was in the footsteps of the previous surveyor … I wanted to prove conclusively that I was correct, so I made a tie to the Moka Estate boundaries.

I tied my survey on to these marks so as to show that my job is correct”.

12 The judgment continues

“Having satisfied himself of the correctness of his measurements, Mr. Fortune placed iron marks to denote the boundary between the plaintiff's and the defendant's lots. There was not then in existence the wall complained of by the plaintiff which was constructed cone time after the survey and it is not in issue that this well was constructed some 3’ West of those marks, so that this area is now encompassed within the area enclosed by the walls built by the defendant. So far as concerns the defendant's lot (lot 44) the witness said

‘I measured the distance that his lot was supposed to have … The northern boundary of lot 44 is supposed to be 80’. That distance from my point would fall on a point on the road (to the East of the respondent's lot) outside of what Mr. Volney fenced as his property. That is why I came to the conclusion that part of the defendant's property fell on the road. I recommended to Mr. Volney that he should gain the...