Cowie et Al v Endeavour et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Myers, J.
• Judgment Date: 15 October 2008
• Neutral Citation: TT 2008 HC 251
• Docket Number: T. 107 of 2003
• Court: High Court (Trinidad and Tobago)
• Date: 15 October 2008

High Court

Myers, J. (Ag.)

T. 107 of 2003

Cowie et al

and

Endeavour et al

Appearances:

Mr. Cecil Pope for the plaintiffs

Mr. Vitti Furlonge-Kelly for the defendants

Real property - Easement — Right of way — Whether plaintiffs were entitled to a right of way over the defendants' lands.

I. INTRODUCTION

Myers, J.

1 The Cowies are the owners of a piece of land located off Belmont Road, Mason Hall, Parish of St George in Tobago. The Endeavours and their predecessors in title, occupy lands (Deed of Conveyance No. 1923 of 1967.) to the North of the Cowies. The Cowies claim that for at least 60 years, they have enjoyed a right of way (by foot, with cattle, carriage and vehicles) through the Endeavours' land which allows them access to Belmont Road. The Endeavours deny this.

2 On or about 10th July 2003, the Endeavours placed debris and obstructed the route through which the Cowies had accessed Belmont Road. As a result, the Cowies filed a Writ of Summons (Filed 20th October 2003), and a Statement of Claim (Filed 23rd April 2004, amended 15th May 2006)

3 The Endeavours, for their part, claim that the Cowies or their servant or agents by driving tractors, trucks and other vehicles through the Endeavours' land have damaged crops planted by the Endeavours. The Endeavours filed a Defence and Counterclaim. (Filed 6th May 2004) The Cowies filed a Reply and Defence to Counterclaim on December 29th 2004.

II. The claim and counterclaim

4 The plaintiffs seek the following relief: (Statement of Claim, Filed 23rd April 2004)

1

A declaration that they are entitled to a right of way along the roadway between their lands through adjoining lands and across the defendants' lands and back over that way for themselves, their servants and licensees on foot and with or without horses, carriages, motor vehicles, and other conveyances at all times and for all purposes. 2. An injunction restraining the defendants, their servants or agents or otherwise howsoever from the repetition or continuance of the acts above complained of or acts similar thereto.(This is the prayer as pleaded, which refers back to the matters complained of in paragraph 3 of the Statement of Claim.) 3. Damages. 4. Interest. 5. Costs.

5 The defendants counterclaim (Defence filed 6th May 2004 and amended 15 ^th May 2006.) for damages for trespass, which they particularise as follows:

Particulars of Special Damages

1

Cassava trees destroyed: $500.00 2. Damage to said lands: $2,000.00 3. Loss of net profit from sales for 2004: $50,000.00 4. Loss of net profit from sales for 2005: $50,000.00 5. Net profit of $50,000.00 per year from 2006 and continuing. 2. Costs 3. Further or other relief.

III. EVIDENCE

6 The trial went on for a substantial period of time and several witnesses testified. In addition, the following documents were before me.

A. Plaintiffs

Survey Plan of parcel of land by Doyle for plaintiffs dated 9th July 2003 (FC1) 2. Copy of Warden's Assessment Roll for parcel of land situate at Belmont in Parish of St George Assessed as No. 2121 in the name of Stephan Samuel Dick. (F.C.2) 3. Copies of Deeds referred to in F.C.2 No. 11652 of 1957, No. 6415 of 1947, No. 8208 of 1954 and No. 8926 of 1957 (C,D,E,F,) 4. Deed of Conveyance dated 27th June 1973 registered as No 9012 of 1973 between Rupert Blake and Stephen Dick (F.C.3) 5. Bundle of Photographs tendered 28/10/05 6. Survey Plan done by Goodridge dated 14/8/04 (P.G. 1 formerly “A”) 7. Copy of Survey done by Fahey dated 5/12/47 (P.G.2)

1 B. Defendants

8

Copy of Survey plan of Coker dated 25/11/03 (P.G.3) 9. Survey Done by Antoine dated 3/11/03 (L.A. 1) 10. Survey done by Antoine dated 16/9/05 (L.A. 2) 11. By product of bananas, used as fowl feed. (A.M.E.1) 12. Fountain of Youth Powder (A.M.E. 2)

C. By Consent

13

Copy of Warden's Extract dated 24/8/05 (A) 14. Bundle of Documents numbered 5, 7, 8, 9, 10, 11, &12 (B).

IV. ISSUES

7 I have identified three issues.

1

Was there a legal easement existing? 2. If not, how long had the pathway been used by other landowners? 3. Was there any other access to the interior lands?

A. Plaintiffs

8 Mr. Fitz Cowie testified that he became owner of his property in February 2000, when he purchased the land from Mr Emmanuel Dick. When he purchased the land, he was shown the means of access to the land by Mr Dick. The means of access was a dirt road or perhaps, more accurately, a trace. Because of a depression which made driving difficult, he dumped approximately two truckloads of rotten rock to smoothen the road. It was in 2003 that he had a conversation with Hollis Endeavour who told him that the he should not use that route but instead pass around Mr. Endeavour's land. However the route suggested by Mr. Endeavour led into a precipice and so was unfeasible. Later on, the Endeavours placed debris and blocked access to the road.

9 Sometime in January 2003, Mr. Jeff Novoa had dealings with Mr. Cowie concerning purchasing his land. Mr. Novoa gave evidence both of being a farmer and wanting the property for farming and of being a land developer.

10 Joseph Philip is Mr. Cowie's neighbour to the South West. Mr. Phillip insists that there is no access to Mr. Cowie's property other than through the Endeavours' land. He says that the access route to the West of Mr. Cowie's land does not connect to Hope Farm Road but is a dead end. He also says he used the dirt road through the Endeavours' land from 1972 to 2003. Mr. Novoa has been using his lands to access the Cowie land, but with permission.

11 Peter Goodridge, surveyor, gave evidence of the existence of a used roadway or track on the Endeavours' land.

12 Samuel Alfred is a former neighbour who testified that people had been using the dirt road since the 1940's to gain access to the lands in the interior. He testified people used it on foot and with donkeys. The first motor vehicles were used sometime in the 1970's. He also denied the existence of any access routes towards Belmont Farm Road and Southwards toward the WASA pump.

13 Lusandra Roberts Duncan, retiree testified that her grandfather was Claxton John, another neighbour of Mr. Cowie's land, and she visited often. She testified that the only entrance was through the Endeavours' land and no entrance existed to Hope Farm Road or to the WASA pump. She also testified that this had been the situation since she was a child maybe sixty years ago. She also testified that access was by foot or donkey.

B. Defendants

14 Anthony Endeavour testified that there was no dirt road and that ten feet from Belmont Road, the land would be impassable because of trees. He says that Mr Novoa was aware there were three other entrances to Cowie's land. He also said that Mr. Cowie and Mr. Novoa by placing “hardcore” on his land had damaged his crops. The real damage was not physical dumping of the rotten rocks but that the rocks soaked up water and thus reduced the water for his crops. He estimated his loss at $100,000 dollars or so.

15 Venra Williams lives with Anthony Endeavour. Her evidence was of limited value. It was concerned largely with the product Mr. Endeavour produces from the bananas.

16 Gerard Lewis lives in the village. His evidence was of limited value. It was concerned largely with the product Mr. Endeavour produces from the bananas.

17 Valerie Endeavour supported Anthony's claim that there was no right of way or easement dating from at least 1969.

18 Leroy Johnson, 67 was previous owner of the Endeavours' land and is a relative of the Endeavours. He said that there was no right of way and only one person, Claxton John was allowed to pass through but with permission. He also says no vehicles could have passed prior to the embankment being removed sometime around 2000.

19 Hollis Endeavour added nothing new to the previous testimony given by the other witnesses.

20 Lyndon Antoine, a leading surveyor, testified. His testimony added nothing definitive about access routes.

21 Elsa Endeavour stated that from 1966 to 1991 she knew nobody to be passing through the land because that part was overgrown.

C. Findings of fact

22 From the evidence given, I find there was no legal easement existing at the current time. No documentation or grant has been presented to show such. I also find the land was used by other landowners for decades to access the interior properties. Mr. Cowie was able to bring independent witnesses with little to gain, people who were neighbours and lived in the area, to prove that the path through the Endeavours' land was used as the primary if not only route to access his lands. Conversely the bulk of the Endeavours' relevant evidence came from family members and was self serving. They were unable to bring anyone who could be described as properly independent to give evidence to support their assertions.

23 Mr. Cowie's witnesses were united in that there was no other access to his land. Mr. Endeavour's witnesses were also united but lacking one important element. They could not give evidence of anyone actually personally using an alternative route to get to Cowie's land.

V. SUBMISSIONS

A. Plaintiffs

24 The bulk of the plaintiffs' submissions consisted of citing, en bloc and en masse, the requirements for an easement to be formed. A summary of those requirements will suffice here.

25 An easement is a right that is attached to land. There is a dominant tenement and a servient tenement. The easement usually means the owner of the dominant tenement has some right over the servient tenement. In this case, what is being sought is a right of way which would allow the owner of the Cowie's land to access the land via a path that runs through the Endeavours' land. This right is enforceable over all successors in title to the dominant tenement against all successors in title to the servient tenement. The tenements need not be adjacent but must be sufficiently...