Romain et Al v Homesites Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Stollmeyer, J.
• Judgment Date: 29 March 2001
• Neutral Citation: TT 2001 HC 58
• Docket Number: H.C.A. No. Cv. 2133 of 1985
• Court: High Court (Trinidad and Tobago)
• Date: 29 March 2001

High Court

Stollmeyer, J.

H.C.A. No. Cv. 2133 of 1985

Romain et al

and

Homesites Limited

Appearances:

Mr. A. Alexander S.C., Mr. M. Campbell, Mr. D. Alexander for the plaintiffs.

Mr. R. Nelson S.C. for the defendant

Real property - Right of way — Obstruction — Plaintiffs claimed ownership of parcel of land and right of way over defendant's land — Further claimed damage for trespass to property and blockage of right of way — Whether defendant crossed boundary on to plaintiff's land — Whether there was common intention to create easement of way over defendant's land — Route of right of way — Judgment for plaintiffs — Measure of damages payable — Restoration of right of way could not be accomplished — Tortious measure of damages — Damages awarded in sum of $17,500.00.

Stollmeyer, J.

1 The plaintiffs claim to be owners of a parcel of land comprising 29 acres described in the schedule to deed registered as No. 10121 of 1964, together with the benefit of a right of way providing access to and egress from this parcel of land from and to the Arima Old Road. Further, the plaintiffs claim that the defendant entered their land and bulldozed, excavated, and graded the same, destroying the trees shrubs, grass and undergrowth thereon, as well as removing a large quantity of top soil which resulted in erosion of and damage to the nature and usefulness of the lands. Finally, the plaintiffs claim that the right of way was blocked up and/or destroyed as a result of these activities.

2 The defendant does not admit the ownership of the lands claimed by the plaintiffs and denies any act of trespass thereon. It also either does not admit or denies the existence of a right of way, and in any event denies that it was blocked up or and destroyed.

3 The issues for determination of the trial can be summarised as being first, are the plaintiffs the owners in fee simple of the parcel of land they claim and, if so, did the defendant trespass thereon; second, do the plaintiffs have a right of way over the defendant's land for the purpose of coming from and/or going to the Arima Old Road and, if so, did the defendant block up and or destroy this right of way; third, what is the measure of damages payable to the plaintiffs if such trespass and blocking up and/or destruction are proved.

The Background

4 The plaintiffs purchased a parcel of land comprising 29 acres 0 roods 00 perches from Charles Maing by deed of conveyance registered as No. 10121 of 1964 (“the 29 Acre Parcel”). The root of title to this parcel of land is found in deed registered as No. 4558 of 1932 which is a conveyance from Lionel Alexander Le Blanc to George Francis Le Blanc. There is no dispute that this conveyance was for good and valuable consideration.

5 The 29 Acre Parcel is part of a larger parcel comprising 196 acres 0 roods 00 perches known as “Mon Plaisir” Estate (“The Parent Parcel”) which was vested in Lionel Alexander Le Blanc by deed of gift registered as No. 694 of 1928. The boundaries of the Parent Parcel are given as:

North - lands of Natividad Alfonso (now deceased).

South - Old Road leading to the town of Arima.

East - lands of Charles Cleaver (now deceased).

West - lands of Robert White, now occupied by Rafael Machardoo.

6 Lionel Alexander Le Blanc then conveyed various areas of the Parent Parcel as follows:

1

By deed registered as No. 4556 of 1932, 30 acres were conveyed to Butler Lucius LeBlanc. An examination of the boundaries places this parcel at the extreme South and extreme East of the Parent Parcel, these boundaries being “Arima Old Road” and “lands of Charles Cleaver” respectively. Significantly, the northern boundary is “other lands of the Mon Plaisir Estate sold to Dennis William Le Blanc by deed bearing even date herewith”. Also, the habendum of this conveyance contains the following reservation. “Reserving nevertheless unto the Vendor, his heirs and assigns owners for the time being of all or any other part of the said “Mon Plaisir “Estate and all persons going to or from any part of the said estate a perpetual right of way TEN links wide intersecting the said lands hereby conveyed from the extremity of the northern boundary to the Arima Old Road in common with the Purchaser his heirs and assigns at all times and for that purpose with or without vehicles and animals from and to the said Arima Old Road”. There is also a reservation to the vendor of all timber, which is not relevant to these proceedings. 2. By deed registered as No. 4457 of 1932, 29 acres were conveyed to Rawlins Andrew Le Blanc. An examination of the boundaries places this parcel at the extreme north and west of the Parent Parcel, these boundaries being “lands of Natividad Alfonso” and “lands of Machardo” respectively. The southern and eastern boundaries are “portion of the said “Mon Plaisir” Estate sold by deed bearing even date herewith to George Francis Le Blanc and “other lands of “Mon Plaisir” Estate and by that portion of said “Mon Plaisir” Estate sold by deed bearing even date herewith to Michael Lewis Le Blanc.” Reservations of a right of way and of timber in terms identical to those set out in deed No. 4556 of 1932 are set out in the habendum. 3. By deed 4558 of 1932, 29 acres were conveyed to George Francis Le Blanc. An examination of the boundaries places this parcel at the extreme west of the Parent Parcel, the western boundary being “lands of one Rafael Machardo.” All the other boundaries are other lands of Mon Plaisir Estate, the northern boundary being “another portion” of Mon Plaisir Estate “sold by deed bearing even date herewith to Rawlins Andrew Le Blanc”. This places this parcel on the western side of the Parent Parcel at a point somewhere between its northern extremity and its southern extremity. Again, reservations of a right of way and of timber on terms identical to those indeed registered as No. 4556 of 1932 are set out in the habendum. 4. By deed registered as No. 4559 of 1932, 29 acres were conveyed to Michael Lewis Le Blanc. An examination of the boundaries places this parcel at the extreme north and extreme east of the Parent Parcel, those boundaries being “lands of Natividad Alfonso” and “lands of Charles Cleaver” respectively. Again, reservations of a right of way and of timber in terms identical to those indeed registered as No. 4556 of 1932 are set out in the habendum. 5. By deed No. 4017 of 1933, 29 acres were conveyed to Dennis William Le Blanc. An examination of the boundaries places this parcel at the extreme east of the Parent Parcel, south of the parcel sold to Michael Lewis Le Blanc by deed 4559 of 1932 and north of the parcel sold to Buller Lucius Le Blanc by deed 4556 of 1932. The east, north and south boundaries of this parcel are described respectively as “lands of Charles Cleaver”, “portion of the said “Mon Plaisir” Estate sold ‘to Michael Lewis Le Blanc by deed bearing even date herewith”, and “other lands of the said “Mon Plaisir” Estate sold by deed bearing even date herewith to Buller Lucius Le Blanc”.

7 An examination of this deed shows that it was originally dated 7th November 1932, as are the four previous conveyances referred to, but that it was subsequently redated 10th October, 1933 and stamped and registered on that date.

8 Again, reservations of a right of way and of timber in terms identical to those indeed registered as No. 4556 of 1932 are set out in the habendum.

9 It is to be noted that none of these conveyances are executed by the purchasers. It is clear from the reservations set out in them, however, that the intention of Lionel Alexander Le Blanc, and each of the purchasers, was the creation of the right of way in favour of himself and all the various purchasers from him of a right of way over all lands of Mon Plaisir Estate sold and conveyed by these deeds, and that the right of way was to enable access to the subject parcels of land from the Arima Old Road and vice versa.

10 The juxtapositioning of the six parcels of land concerned can be seen on the survey plan annexed to the deed of conveyance registered as No. 2718 of 1936 and to which I will refer shortly.

The Plaintiffs' title

1

George Francis Le Blanc sold and conveyed the 29 Acre Parcel to Ethel Ana Bagoo by deed registered as No. 16949 of 1959. The boundaries are described in the same terms as they are in deed registered as No. 4558 of 1932. There is also a conveyance of a right of way which is described in the second Schedule of this deed as follows: “Full and free right and liberty for [Bagoo] her heirs and assigns and her tenants, servants, visitors and licencees in common with all others having the like right at all times hereafter by day or night with or without vehicles and animals of any description for all purposes connected with the use and enjoyment of the [29 Acre Parcel] or for whatever purpose the said lands may from time to time be lawfully cased and enjoyed to pass and repass over and along a perpetual right of way ten links wide intersecting the said lands hereby conveyed.” 2. Ethel Ana Bagoo then sold and conveyed the 29 Acre Parcel and the right of way to Charles Maing by deed registered as 10638 of 1960. The boundaries in this conveyance are described in the same terms as they are in deeds registered as 4558 of 1932 and 10649 of 1959, except that the 29 Acre Parcel is said to be “delineated on the plan marked “A” annexed to deed registered as No. 8834 of 1946 and shown thereon as comprising Twenty-nine acres in the name of George Le Blanc”. That deed is in evidence as in exhibit P12 and is a conveyance from Leonard Howard Dalton to Eric Eyre Murray of a parcel of land comprising 115 acres 1 rood 22 perches known as “Lynton” Estate. This conveyance to Maing describes the right of way in the same terms as it is described in deed registered as No. 10649 of 1959 except that it is additionally described as being “referred to as in Deeds registered as...