Wharton-Smith v Birbal
| Jurisdiction | Trinidad & Tobago |
| Judge | Rajkumar, J. |
| Judgment Date | 09 June 2008 |
| Neutral Citation | TT 2008 HC 142 |
| Docket Number | 840 of 2001 |
| Court | High Court (Trinidad and Tobago) |
| Date | 09 June 2008 |
High Court
Rajkumar, J.
840 of 2001
Mr. Anthony Manwah and Mr. Keith Scotland for the plaintiff.
Mr. Kelvin Ramkissoon for the defendant.
Real property - Adverse possession — Whether disputed portion occupied with consent of defendant — Plaintiff's conduct in commissioning a survey indicated that she had encroached on defendant's land and occupied a portion of it only by consent — Application for title dismissed — Injunction against defendant allowing water to enter plaintiff's land granted.
The plaintiff claims a declaration that the defendant's title in a portion of land comprising 122.4 square metres is extinguished and a declaration that she is entitled to occupation and possession of that disputed portion of land. She also claims an order that the defendant demolish the foundation wall constructed by the defendant on the disputed portion of land. The plaintiff also claims an injunction restraining the defendant whether by herself, her servants or agents from allowing water to escape from the defendant's lands onto the disputed portion of land and the plaintiff's land.
The writ of summons was filed on 2nd April 2001. Attached thereto is a plan by Albert Haynes dated 23rd September 2000 commissioned by the plaintiff. She claimed to have been in continuous and uninterrupted occupation and possession.
It is not disputed that from 1977 to 2000 that the plaintiff's chain link fence enclosed the disputed portion of land. The issue therefore is whether that fence, which is admitted on the pleadings to be on the defendant's land enclosed that portion of land with permission of the defendant and her husband or whether there was no such permission and it is therefore effectively adverse possession of the disputed portion.
If the disputed portion was occupied by virtue of a licence from the defendant then it is trite law that such occupation would not be adverse to the defendant's title so as to be capable of extinguishing it. This is almost entirely a question of fact and depends upon whether the plaintiff's or defendant's version of events is accepted.
I consider the inherent probability of each version, the demeanour of the witnesses under cross-examination and my assessment of their frankness with the Court, as well as the consistency of their evidence with the documentation before the Court.
I find the issues to be as follows:
-
(1) Whether there was an oral agreement between the plaintiff and her husband and the defendant and her husband for the occupation of the disputed portion of land by the erection of a fence thereon enclosing the disputed area.
-
(2) Whether the plaintiff's property has been damaged by the flow of water thereon from the defendant's land.
-
(3) Whether the defendant's property has been damaged by the flow of water from the plaintiff's land.
I make the following orders:
-
(a) The plaintiff's claim for a declaration that the defendant's title to the disputed portion of land [as described in the plan attached to the Writ of Summons and marked A filed herein April 2nd 2001] is dismissed.
-
(b) I grant the injunction sought in the Statement of Claim restraining the defendant whether by herself, her servants or agents from allowing water to escape from the defendant's lands onto the disputed portion of land and the plaintiff's lands.
-
(c) A declaration that the defendant is the owner of the disputed portion of land [as described in the plan attached to the Writ of Summons and marked A filed herein April 2nd 2001.
-
(d) A declaration that the defendant is entitled to occupation and possession of the disputed portion of land.
-
(e) As each party has been partially successful I make no order as to costs.
-
(f) Liberty to apply.
Her claim arises out of allegations that on 11th May 2000 the defendant wrongfully entered the disputed portion of land, wrongfully took possession of same and trespassed thereon. Specifically she claims that:
-
(1) On 11th May 2000, the defendant laid a foundation on the disputed portion of land and removed the chain link fence and two iron posts constructed thereon by the plaintiff. The defendant constructed a wall on the said foundation which contained a number of weep holes made of PVC.
-
(2) On 30th June 2000, the defendant caused a tractor to encroach on the disputed lands, removing parts of and damaging the remainder of the chain link fence.
-
(3) On 27th August 2000, the defendant entered on the disputed portion of land and brush cut a portion thereof.
-
(4) During the month of August 2000 and whenever it rained, water from the defendant's land poured through weep holes in the wall and entered onto the plaintiff's land causing erosion of the land below the wall.
-
(5) On 30th November 2000, the defendant by her son, sprayed the disputed portion of lands, as well as portions of the plaintiff's Lots 6 and 7, with weedicide.
-
(6) On 4th November 2000, the plaintiff allegedly caused one part of the fence which had been removed and left open by the defendant to be replaced. On 2nd December 2000, she observed that a hole had been made in the fence through which access could be gained from the defendant's property to the plaintiff's property.
Despite all these allegations, no injunction was sought at the time of these events which spanned a period from 11th May 2000 to 2nd December 2000. The writ was actually filed on 2nd April 2001. The explanation for this is that the plaintiff was awaiting the Surveyor's report. That Surveyor's report as previously mentioned was dated 23rd September 2000.
The defendant, however, contends that the plaintiff and her husband erected a fence which ran in a north to south direction in or about 1977 and that, after the erection of the said fence, it was discovered that the fence wrongly encroached on the defendant's property. After discussions between the plaintiff's husband (deceased), the defendant and her deceased husband agreed not to insist that the plaintiff and/or her husband remove their fence. It was permitted to remain after the acknowledgement by the plaintiff and her deceased husband that they had encroached on land belonging to the defendant. The defendant contends that because of the position of the plaintiff's property in relation to hers and the plaintiff's improper drainage, this caused water to flow toward the defendant's land undermining the foundation to the defendant's house and causing and occasioning repair work of various types.
Due to continuous damage because of the plaintiff's improper drainage, the defendant decided to construct a retaining wall to minimise such damage. The defendant asserts that she discussed with the plaintiff the damage to her property. It was agreed that the plaintiff would build a drain to the back of her home and direct water from the property. The defendant reminded the plaintiff that her fence was on the defendant's land and that the defendant was now going to build the retaining wall and that the fence would have to be moved. She contends that the plaintiff said she would have a survey done to establish how far back her fence would have to be moved. That survey was conducted by Mr. Haynes who pointed out the boundary markers to the plaintiff and the defendant and, in the presence of the defendant and Mr. Haynes, the plaintiff and her son indicated that they would re-fence along the boundary as pointed out by Mr. Haynes.
The defendant counterclaimed the cost of repairs to her premises in the sum of $150,000.00, but provided no evidence at trial of expenditure of this amount. She also counterclaimed a declaration that she was entitled to occupation and possession of the disputed portion of land, possession of the disputed portion of land, an injunction restraining the plaintiff whether by herself, her servants or agents from allowing water to escape from the plaintiff's lands onto the disputed portion of lands and into the defendant's land and an order that the plaintiff do demolish the existing offending fence on the disputed portion of land, in addition to the sum of $150,000.00 for damage done to her property.
The plaintiff in reply denied that she or her husband entered into the alleged oral agreement with the defendant or her husband.
Both parties gave evidence and one additional witness was called on behalf of the defendant, whose testimony I accord no weight as I found it unhelpful to the issues to be decided in this matter.
Numerous photographs were tendered into evidence, as well as an agreed bundle of documents and a photocopy of a receipt (Exhibit SB.4) dated 8th September 1970. The photographs clearly show weep holes in the defendant's wall through which water was, at the time that they were taken, flowing onto the plaintiff's property.
Cynthia Wharton Smith, in her witness statement filed on 27th June 2007, attested to the fact that she was the owner of various parcels of land including an area described as an open space which is to the back of the defendant's land and plaintiff's property on which her house stands. The defendant's property is to the west of the plaintiff's property, on which her house stands. The plaintiff claimed that when she bought the open space, there was an access road about 8 metres wide running along her western boundary to the open space.
In 1977, the plaintiff and her husband decided to construct a fence on the western boundary. A Land Surveyor was retained to establish the boundary line between the two properties. He did so and they built a chain link fence with iron posts on this boundary line. This fence was on the western side of the disputed area and on the western side of the access road. (It would therefore have enclosed it within...
To continue reading
Request your trial