Décision

Mc Whirter c. Cochrane						2008 QCCS 5643
JL2100    SUPERIOR COURT
Canada
PROVINCE OF QUEBEC
DISTRICT			OF BONAVENTURE
N° :		105-17-000071-036
DATE :	October 17th, 2008
______________________________________________________________________
PRESENT:				THE HONORABLE	ROBERT LEGRIS S.C.J.
______________________________________________________________________
RONALD MC WHIRTER,
plaintiff,
v.
LAWRENCE COCHRANE, defendant and THE PERSONAL AND MOVABLE REAL RIGHTS REGISTRAR FOR THE REGISTRATION DIVISION OF BONAVENTURE I, Impleaded party,
______________________________________________________________________
JUDGMENT
______________________________________________________________________

The Fishing Rights

[1]           The first question raised by the plaintiff is of the nature of a declaratory application related to fishing rights on the Little Cascapedia River.  This river crosses lot 615 in the Fourth Range in New Richmond, County of Bonaventure.   Lot 615 belongs mostly to the defendant.  This river, rich in salmon, is privately owned by the defendant being a non-navigable river.  Plaintiff conducts an outfitter business on part of lot 614.  The question is whether the plaintiff’s contractual fishing rights are still enforceable or were extinguished by Robert Hardy’s death in 1950.  If extinguished, were these fishing rights gained by the plaintiff by prescription since 1950?

The Story

[2]           The whole story starts in March 1883.  At that time, Robert Hardy bought, from West to East, lots 613A, 614 and 615 in the 4^th Range in New Richmond.  This land is in the woods and is approximately 7,000 ft. long and 1,140 ft. wide.  The Little Cascapedia River snakes through lot 615 and one of its curves goes close to lot 614 by some 20 ft.

[3]           In July 1896, Robert Hardy, a predecessor of the plaintiff, sold to Eubelus Hardy, a defendant’s predecessor,  the eastern part of lot 615.  Part of the deed reads :

“Reserving the said vendor for himself the right and privi­le­ge of the waters and fishing privileges belonging and appertaining to the said lot on the said Little Cascapedia River, which river the said … lot … crosses.”  

 

[4]           In August 1949, Robert Hardy sold to Harry Mc Lean the northwestern part of lot 615, measuring, according to the deed, 1,410 ft. in length and 157 ft. in width, containing in surface area four and three-quarter acres more or less and bounded on the East by the Little Cascapedia River.  By the same deed, Robert Hardy sold Mc Lean “the water rights he now holds in the Little Cascapedia River in front of lot 615… which means all water rights belonging to the said lot 615”.

 

[5]           After a few other transfers of ownership the plaintiff is now the owner of what Mc Lean bought.  The defendant possesses as an owner the eastern part of the same lot 615, formerly Eubelus Hardy’s piece of land.  Actually, there is no translatory title bet­ween two of his predecessors, namely Eubelus Hardy and Edouard Hardy and this gap  is before 1939. 

 

[6]           The plaintiff argues that he has the exclusive right to fishing on the Little Cascapedia River within the boundaries of Lot 615 from the reserve stated in the deed of July 1896.  The defendant contends that the fishing rights reserved by Robert Hardy in 1896 for himself could not be assigned and were wiped out at Robert Hardy’s death in 1950.  He could now fish in the river which is part of lot 615.

 

The Interpretation of the 1896 Deed.

 

[7]           There are different ways to interpret a deed when necessary. 

 

The First Method: the Deed by Itself.

 

[8]           In a first step, the Tribunal will analyse the wording of the right of fishing reserved in the 1896 deed in light of the relevant jurisprudence.

 

[9]           Some judgments have already addressed the questions of the nature and the dura­tion of fishing rights in Quebec.  In Matamajaw Salmon Club v. Duchaine, [1921] 59 D.L.R. 391, the Privy Council dealt with the fishing rights that had been given to Sir Stephen in exchange for a piece of land.  Viscount Haldane copied the fishing rights involved in this way :  “… all the rights of fishing in the River Mata­pe­dia vis a vis the lot of the cedant … with the right to the said George Stephen to pass over the said lot … for the exercise of the right of fishing” and “ the parties desseised themselves res­pectively of what was above ceded by them in ex­change and counter exchange, and took seisin of it respecti­vely”.  And he adds: “ It will be observed that the language of the deed itself is un­res­trained, so far as the duration of the rights granted under it is concer­ned, not less completely in the case of the cession of the fishing rights to Sir George Stephen than in that of the cession of land by way of exchange to Blais.”  Sir Ste­phen’s right to fishing was then decided to be permanent.

 

[10]      In Procureur Général du Québec c. Club Appalaches inc., [1998] Rimouski 100-05-000435-963, Landry J. of this Court was facing the following reserve:

 

“It is specially understood and agreed that all fishing and Hunting rights appertaining to the hereby sold properties are not included in the present sale and are specially reserved by the vendor for himself, his heirs and assigns forever”

 

[11]      Justice Landry reached the conclusion that the rights so reserved were perma­nent.

 

[12]      In O’Brien c. Ross, [1984] C.A. 78 , the wording of the hunting rights at issue was :

 

« Le vendeur (Ross) donne audit acquéreur le droit exclusif et sans réserve pour par lui, l’acquéreur, ses héritiers ou ayant cause, à l’exclusion de tous autres, de chasser, mais sans droit de propriété sur le fonds, qui reste la pro­prié­té du vendeur donnant de ce fait seulement un droit de chas­se à perpétuité pour le dit Sieur L.P. Brown et ses hé­ri­tiers tous les gibiers… sur tous les marais pouvant ap­par­tenir au vendeur Monsieur Alcide Ross … et connus sous les lots numéros … du cadastre de la paroisse de Maskinon­gé. »

 

[13]      The Court of Appeal agreed with the trial judge that the rights granted to Louis P. Brown were personal rights in his favour and in favour of his heirs and that these rights were not transferable to others.

 

[14]      In light of these judgments, let us go back to  the 1896 deed by which Robert Hardy reserved fishing rights on lot 615 for himself.  It must be noted that this deed also deals with the lot 615 purchaser’s rights of ownership: “accepting for himself, his heirs and assignees forever.”  And again: “ to have and behold the said piece of land and premises as sold or intended so to be onto the said Eubulus Kerr Hardy, his heirs and assignees for ever.”

 

[15]      From that, we can see that the notary who drafted the deed did not use the same expression for Robert Hardy’s fishing rights as the one he used for the purcha­ser’s ownership right.  Moreover the words “for himself” sounds closer to a right tied to an individual than to a right that can be conveyed to third parties or left to one’s heirs.

 

[16]      We can also tell that Club Appalaches  doesn’t apply here since the rights involved in that case were reserved by the vendor for himself, his heirs and assigns forever. 

 

[17]      In Matamajaw Salmon Club, Viscount Haldane seemed to be concer­ned with the fact that there was an exchange between two parties and that this exchange should involve two balanced considerations, that is, of comparable nature and advantage: one is the ownership of land, which is permanent by nature; the other is fishing rights, which  should also relate in some way to ownership and be permanent.  There remained only the question of whether such an ownership break up was acceptable in Quebec law.  And this is basically what the Privy Council judgment is about.

 

[18]      Moreover Lord Haldane pointed out some expressions found in the deed in  Matamajaw: “ the parties desseised themselves respectively of what was above ceded by them in exchange and counter exchange and took seisin of it reciprocally”.  Accor­ding to his Lordship, these expressions point to an intention to convey in perpetuity.  We have no such expressions in our case, nor any expression that would suggest perpetuity or something that could be longer lasting than the vendor’s lifetime.  Ownership cut-offs are to be construed restrictively.

 

[19]      While fishing rights can be seen as a right of ownership, they can also be seen as a personal right or a right in re of some kind, as a right of use would be.  The nature of this right is a matter of interpretation of the deed itself and in a freedom of contract system of law, the intention of the parties has to be looked at as it is in the deed itself. 

 

[20]      This interpretation of the 1896 fishing rights does not lead to a perfect certainty because it is based on an a contrario argument, which can be stated as  “the text doesn’t apply to unmentioned subjects” (heirs and assignees).  According to the authorities, this argument is dangerous.  It could be useful to look elsewhere. 

 

A Second Method:  The Surrounding Circumstances

 

[21]      A second way of detecting the intent of the parties to a deed is to look at the circumstances surrounding the signature of such an 1896 deed.  The evidence on this point is short but it shows that a Little Cascapedia River Fishing Club was established around 1870.  The members of this private club were people from Montreal and elsewhere who used to spend part of the summer fishing from the head of the river down to its mouth in the Baie des Chaleurs.  Along this river there are a certain number of interesting fishing pools.  One of these pools is on lot 615.  At this point in the evidence, it is not clear whether Robert  Hardy kept the fishing rights in order to fish by himself or in order to take financial advantage of these fishing expeditions planned by the fishing club.  But there is nothing in these facts that suggests that the fishing right was permanent.

 

The Third Method: The way the parties enforced it.

 

[22]      Another way of looking into the meaning of the 1896 deed is to examine the way the parties enforced it before the disagreement arose in 2000 or 2002.  We know that in 1912 or so, Robert Hardy had a camp, built by the plaintiff’s father and uncle, on part of lot 614.  This camp has been known as Camp Brûlé.  In front of the camp there is a “pool”, which is a spot in the river deep enough to make the salmon stop and rest in quiet water, a nice place for fishing.  This pool and the whole river in front of the camp are within the defendant’s lot 615 lines.  Some old registered documents show that Robert Hardy leased his fishing rights to third parties, including a fishing club, for 4 years in 1917, 2 years in 1922, 4 years in 1930 and 4 years in 1936.

 

[23]      After the dissolution of the fishing club around 1942, the camp was turned into a commercial outfitter each year from June to August.  The owners of the business were Mc Dougal, Mc Lean, Grandville, Lanctôt etc.  Clients used to stay there for days or weeks, fishing, eating and sleeping.  There was a manager, the plaintiff’s father, a cook, the plaintiff’s mother, a shore boy, guides, wardens, among them, the defendant’s father.  There were a one level chalet, a shed, a boat shed, a cook house, a ramp and an ice house for the catches.  The fishing run was 10 miles long, starting 3 miles north of the camp and ending in the Baie des Chaleurs.  Along the river, similar camps were built with different names and next to different pools. 

 

[24]      In 1949, Mc Lean bought the camp and the fishing rights from Robert Hardy :

 

“The vendor hereby sell

s to the purchaser, the water rights he now holds in the Little Cascapedia River on front of Lot cadastral number 615 on the official plan and book of reference of the aforesaid township of New Richmond which means all water rights belonging to the said lot 615.”

 

[25]      Robert Hardy passed away in 1950.  The year after,  Mc Lean gave the plaintiff’s mother the camp and the fishing rights he had, as a tip drafted on a one-dollar bill.  He never went back there.  Years later, in 1957, an official gift deed was registered.  The defen­dant’s father, Leslie Cochrane, was an employee (guide and warden) of the camp until 1957-58 and his wife, the defendant’s mother, Alice Hardy, owned the balance of lot 615 that now belongs to the defendant.    In those years, there were 6 to 8 clients at the camp at once.  The camp was advertised and brochures were distributed from 1953 on. 

 

[26]      The Hardy, Cochrane and Mc Whirter families were close to each other.  They had been neighbours, they worked together, they took afternoon tea together, they have crossed each other’s land, they married each other, they gave land to each other, etc.  There is no evidence that Eubelus Hardy (d.1901), Edward Hardy (up to 1939), Alice Hardy (up to 1977) challenged the lease agreements that Robert Hardy had entered into with third parties starting in 1917 or earlier.  According to the plaintiff, Alice Hardy and the Cochrane family had no reactions although they knew that Robert Hardy had passed the camp on to Mc Lean in 1949.     

 

[27]      From these facts, we can say that the 1896 fishing rights were not enforced as a right of fishing restricted to an individual only for his own pleasure and benefit.  This right was enforced as leasable and assignable. 

 

[28]      Now let’s have a look at the way the parties enforced the 1896 fishing rights in respect of their duration.  For that, we already saw that the wording of the fishing reserve makes it closer to a lifetime right.  The commercial context in which the fishing right reserve was drafted doesn’t help here. And the wording of the 1896 deed looks stronger than the silence of defendants predeces­sors after Robert Hardy’s death in May 1950.  The evidence shows in a general way that before and after 1950 nobody talked about that question.  On one hand, Mc Lean gave away the camp after Robert Hardy’s death; on the other hand, the plaintiff’s prede­ces­sors continued to carry on the outfitter business until today.  In the absence of consistent evidence, the Tribunal can hardly set aside the wording of the 1896 deed.  In civil law, however, this aspect of titles is also ruled by prescription.  This is the second question raised by the plaintiff.

 

The Prescription of the Fishing Rights.

 

[29]      According to the plaintiff, Mc Lean in 1949 and after him, Mrs Fairservice (plaintiff’s mother) in 1957 had an ownership title to this right of fishing and this title allows them to acquire this right through short prescription.  Section 2206 C.C.L.C. reads :

 

Subsequent purchasers in good faith, under a translatory title derived either from a precarious or subordinate possessor, or from any other person, may prescribe by ten years against the proprietor during such subordinate or precarious holding. 

 

Third parties may also, during a subordinate or precarious holding, prescribe against the proprietor by thirty years with or without title.  

 

[30]      Robert Hardy had temporary fishing rights and as such, he was a precarious holder.  According to s. 2203 C.C.L.C., he could never acquire permanent fishing rights by prescription.  Therefore, the plaintiff cannot rely on Robert Hardy’s possession for that same purpose.  However, Mc Lean in 1949 and the plaintiff’s mother in 1957 had translatory titles to fishing rights that could lead to prescription under s. 2206 C.C.L.C.

 

[31]      The question now is whether Mc Lean and his successors were in good faith at the time they got title to their fishing rights.  If so, the acquisitive prescription delay would be 10 years; otherwise, it would be 30 years.  While every­body is deemed to be in a good faith (s. 2202 C.C.L.C.), this presumption is reversed when, as it is here, Robert Hardy’s actual right of fishing was registe­red :

 

« Un troisième courant jurisprudentiel, amorcé par la Cour d’appel et suivi par la Cour supérieure, soutient que la mention au bureau d’enregistrement comporte pour l’acqué­reur une présomption de connaissance qui renverse celle de la bonne foi de l’article 2202 C.c. »  Pierre-Claude Lafond Thémis, 1991, page 694 see also page 165. 

 

[32]      The new Civil Code went beyond this trend turning that assumption into a irrefragable one ( 2943 C.C.Q).  Robert Hardy’s title to fishing rights was registered and Mc Lean and the plaintiff’s mother are deemed to have known their title limitation.  There is no clear evidence whe­ther or not Mr.  Mc Lean and Mrs. Fairservice were actually aware of the “for himself” pitfall.  The prescription delay would thus be 30 years ( 2242 C.C.B.C.), that is, from 1949 to 1979. 

 

[33]      The possession that leads to acquisition needs to comply with five conditions.  It has to be “continuous, peaceable, public, unequivocal and as a proprietor.”  2193 C.C.L.C.  There is no question about continuity, publicity, peace, nor about the as-a-proprietor condition.  But there is a question whether the possession was equivocal or not.  What is an equivocal possession?  Two possible sets of circums­tan­ces can be weighted.  The one pointed to by the second and third of the following paragraphs is at issue here and is related to the “corpus” of the possession.

 

« Il est indispensable que la possession soit certaine et ex­clu­sive.  L’interpré­ta­tion du comportement du possesseur doit tendre uniquement vers la titularité du droit.  Elle devient équivoque lorsque les actes du possesseur ne révè­lent pas suffisamment son animus et peuvent s’interpréter de diverses façons.  C’est le cas lorsqu’ils ne supposent pas nécessairement chez lui la prétention à un droit exclu­sif.  Tel est le cas de la personne qui passe régulièrement sur une lisière de terrain d’autrui et qui entretient minu­tieu­sement ce passage.  Pareil geste est susceptible de deux explications : cette personne entend se prétendre ti­tu­laire d’une servitude de passage acquise d’un proprié­tai­re antérieur ou elle se croit véritablement propriétaire de cette partie du terrain… 

 

La possession souffre d’un vice d’équivoque lorsque deux personnes ou plus jouissent d’un même bien sans qu’il soit possible de distinguer le possesseur du propriétaire.  En ce cas, l’exigence d’exclusivité fait défaut.  Il en va de même de celui qui s’immisce dans la jouissance d’un immeu­ble qu’un autre continue de posséder en vertu d’un titre lui en attribuant la propriété exclusive.

 

Lorsque plusieurs personnes concourent sur le même lieu pour le posséder et qu’elles se livrent à des actes pos­ses­soires de part et d’autre, la jurisprudence et la doctrine nient l’existence de toute possession utile.  La cohabi­ta­tion et le concubinage prêtent souvent flanc à ce genre de situation. » Lafond Pierre-Claude « Précis du droit des biens », Thémis 1999 page 224

 

[34]      Beaulieu states that

 

“Notre jurisprudence sur le vice d’équivoque parle plutôt de possession exclusive, et quand elle dit qu’une possession est équivoque, la plupart du temps, elle écrit que la pos­ses­sion n’est pas exclusive.  Elle considère comme équivo­que une possession exercée par un tiers concurremment avec le propriétaire;… »  Marie-Louis Beaulieu op. cit. page 323.

 

[35]      The best evidence of exclusive possession would be a witness who had been sitting on the river bank for thirty years watching who fished and who did not.  Such direct evidence is obviously impossible and that is why the plaintiff must rely on a presumption of facts evidence. It is the induction of an unknown fact through the evidence of other proven facts.  These presumptions must be serious, precise and concordant (2849 C.C.Q.)

 

Dans l’arrêt Longpré c. Thériault, le juge Lamer a fait siennes les définitions de l’auteur français Larombière sur le sujet.  Il déclare :

… Les présomptions sont graves lorsque les rapports du fait connu au fait inconnu sont telles que l’existence de l’un établit, par une induction puissante, l’existence de l’autre.

Les présomptions sont précises, lorsque les inductions qui résultent du fait connu tendent à établir  directement et particulièrement le fait inconnu et contesté.  S’il était également possible d’en tirer les conséquences différentes et même contraires, d’en inférer l’existence de faits divers et contradictoires, les présomptions n’auraient aucun caractère de précision et ne feraient naître que le doute et l’incertitude.

Elles sont enfin concordantes, lorsque, ayant toute une origine commune ou différente, elles tendent, par leur ensemble et leur accord, à établir le fait qu’il s’agit de prouver… Si … elles se contredisent… et se neutralisent, elles ne sont plus concordantes, et le doute seul peut entrer dans l’esprit du magistrat.  Jean-Claude Royer, « La preuve civile », Éditions Yvon Blais 1987 page 299.

 

[36]      The defendant was the plaintiff’s first witness.   Starting in 1970, the defen­dant used the river, wherever he wanted to go, he fished on both the upper and the lower part of it.  He used to moor his boat at the same place where the camp’s canoes were moored.  He fished everywhere he wanted to including in front of the Brûlé Camp in 1978-79.  At that time, plaintiff’s sister told him that she didn’t like him fishing there.  Defendant’s mother also leased a lower pool and both pools to the Canada Council.  This plaintiff’s evidence also shows that he started to tell the defendant’s son to get off the river as the plaintiff wanted to sell the camp in 2002.  The evidence of a non-equivocal possession has to be at least consistent.

 

[37]      The plaintiff’s parents became the owners of the camp in 1957 (gifts had to be signed before a notary).  The plaintiff started then working there as a guide, a guardian, etc. He was born in 1936 and at the hearing, he was 70.  He spent most of his summers at Camp Brûlé, at first with his parents and later when his work allowed him to do so.  He was a power engineer and from 1960 to 1993 he sometimes worked outside this area (Port Cartier, 1960-65; Pickering 1970-76; Alberta 1976-78; Saudi Arabia 1978-84) although he used to come back in the summer holidays and do maintenance jobs.  The clients, six or eight at once, accessed the river in front of the camp and also from the head of the river.  In 1972, there were 40 client-days and in 1993, 270 clients-days.  They fished either in a canoe or walking in the river with rubber boots. In July, there was a ramp preventing canoes from being scratched. 

 

[38]      In 1974 the plaintiff’s parents died.  His sisters ran the business from 1976 to 1993.  At that time, the camp activities extended to Nouvelle River, Carleton, Grand Cascapedia River and Bonaventure River. 

 

[39]      The plaintiff testifies that the defendant’s father, who died in 1965, never contested his fishing rights.  It must be noted that the close relationship between the parties’ predecessors naturally results in tolerance.  Nobody talked about it.  In 1994, the plaintiff retired and moved into the camp, borrowed  $100,000 and rebuilt the camp to its present size. 

 

[40]      The plaintiff also testifies that the defendant always fished on lots 613 and 614, which belong to the defendant and a neighbour, respectively, with his permission.  The plaintiff did not see the defendant fishing on lot 615 until 2000.  People of the camp used to watch the river from a veranda at the top of the hill or from the cook’s house where they could see the Brûlé Pool.  According to the plaintiff, it’s hard not to see anybody in the pools.  He never saw the defen­dant fishing on lot 615.  Things started to heat up in 1999 when he was walking in the woods with a land surveyor.  And in 2002, he caught the defendant’s son fishing in the Brûlé Pool.

 

[41]      The plaintiff’s sister, who ran the camp between 1976 and 1993, although she didn’t spend much time watching the river, saw the defendant fishing the pools on lot 615 around 1990.  There were three confrontations.  And she never saw the defen­dant fishing 40 or 60 times a year as the defendant says.

 

[42]      The plaintiff’s son, born in 1968, never saw the defendant fishing on lot 615 until 2002.  He was then shocked at the sight of the defendant and his son fishing in the Brûlé pool, which is “inviolable” .  Nobody had the right to fish there except the clients.  According to him, the defendant had fished on lot 615 “zero times” a year.  However, he saw the defendant fishing on lot 614, where there is another pool.  In 1997-98, he saw the defendant's son fishing trout on lot 615.  He didn’t mind.

 

[43]      From the defendant’s evidence, we know that defendant’s mother had the fishing rights deed with her before he bought his part of lot 615 in 1977.  In early 1970, at the age of 22, the defendant built a boat for himself, made of plywood, which was moored at Camp Brûlé.  He couldn’t afford a canoe and the plaintiff’s father told him that his boat was not safe.  He went fishing at a jam on lot 615 south of Camp Brûlé where there is salmon.  The plaintiff’s father came and never said anything.  Up to 1980, there was a public camp on lot 616 close to lot 615 and anybody could fish there for free.  In 1987 he built a cottage, presumably on lot 615, and he also fished four or five times a week with his son on a sand bar on lot 615.  In 1990 or 1991 he fished with the  plaintiff’s clients.

 

[44]      The defendant’s son, Tod, was born in 1967.  He started fishing in 1976 or 1978.  He used to fish 50 to 70 times a year, mostly in the evening.  He seldom saw anyone else fishing at these places.  The plaintiff’s clients were fishing other pools.  He was once asked by the plaintiff’s sister to stop fishing and once, in August 2002, by the plaintiff and he had an argument with him.

 

[45]      In these circumstances, the Tribunal cannot reach the conclusion that the plaintiff and his predecessors are sole and exclusive possessors of fishing rights, whatever their nature, that they claim under the law of prescription.  The plaintiff’s evidence is not consis­tent.  For the relevant period, the defendant says that he always fished on lot 615, others say that the defendant fished only once or twice, another says that the defendant never fished lot 615.  All these witnesses were called by the plaintiff. 

 

[46]      It is hard to set aside some of this testimony because it is not all incompatible.  The sight line that people from the camp have over the river is limited and there is a section of the river on lot 615 that cannot be seen from the chalet.   And even in front of the camp, there are many trees veiling the waters.  Moreover, until 1993, nobody went to Camp Brûlé in fall, winter or spring.

 

[47]      Our jurisprudence is that possession leading to acquisition of ownership has to be considered according to the nature of the right possessed.  However, on land, possession that leads to acquisition is always marked with relative precision by old fences, buildings, plants, tree rows or other signs of activity.  These marks make possession easier to prove.  Exclusive possession is not a mere abstract concept.  It is a fact.  In most cases, hurdles prevent the actual owner from using his land or part of it.  The reason for that is that an owner has no duty to use his land every day and every where.  In other cases, these signs are clear indications of the intent of the possessor.    In the present case, there is nothing on the river that prevents any­body from fishing or that tells anyone that only Camp Brûlé’s clients can fish. 

 

The registration of the plaintiff’s ownership of part of lot 615. 

 

[48]      By his application, the plaintiff also asks for a title of ownership on part of Lot 615.  He claims that the deeds by which he and his predecessors bought lot 614 and a remaining part of lot 615 referred inadvertently only to lot 614, that since 1949 and before, he and his predecessors have possessed this part of lot 615 so that he is now its owner.

 

[49]      Lot 615 is more or less 524 feet wide.  In 1896, Eubelus Hardy bought from Robert Hardy a strip of land some 414 feet wide being the eastern part of lot 615.  This strip of land now belongs to the defendant.  Thus, it seems that Robert Hardy kept for himself the western part of lot 615 some 110 feet wide.

 

[50]      In 1909, Robert Hardy sold lots 613A and 614, including Camp Brûlé, to George Hardy.  In 1941, George Hardy sold these two lots to Albert Hardy.  In 1949, Harry McLean bought from Albert Hardy part of lot 614 surrounding the chalet of Camp Brûlé and also, from Robert Hardy the following pieces of land :

 

a.      A  certain piece of land situated… in the fourth range… known as being a part of lot 614 measuring 1410 feet in depth by 157 feet in width containing 4.75 acres in superficies more or less and bounded as follow:  on the West by Albert Hardy, on the East by Little Cascapedia River, on the North by the fifth range and on the South by the remaining portion of same lot, circumstances and dependences.

 

b.     A certain piece of land situated in… the fourth range known as being part of lot 614 and bounded as follow: on the North by the property belonging to the purchaser, on the South by the third range, on the East by Alice Cochrane and on the west by Albert Hardy.

 

[51]      As we already know, in 1909, Robert Hardy had sold all he owned on lot 614.  On the other hand, up to 1949, he was still the owner of the western side of lot 615, some 110 ft wide.  This is why the plaintiff asks for title to lot 615.  He claims prescription. 

 

[52]      The following sketch should help:

			Third Range

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[53]      There is no dispute between the parties about the pieces of land marked A and B on the sketch.  Therefore, the plaintiff will be declared the owner of these parts of lot 615.

 

[54]      The plaintiff argues that he should also be declared the owner of the triangle marked H-C-G by prescription.  This piece of land, part of Lot 615, was first sold by Robert Hardy in 1896 to Eubelus Hardy,  the defendant predecessor. The eviden­ce shows that the plaintiff, his predecessors, their employees and clients have always used this part of land to go to the river, for storing canoes in a shed now taken down, laying and storing ramps, keeping there some decorations (a totem pole, a wood snake)  etc.  At this place, they also built a rock crib to prevent the river in spate from eroding the bank.  All this activity was held in the presence of the defendant, his prede­ces­­sors who were there sometimes as neighbour, sometimes as emplo­yees, some­times as visitors and members of the family.  Again, nobody talked about it.

 

[55]      Actually there is a  fence (F-G)  built circa 1950 that goes from Mercier Road down to the river.  This fence is located some 1,390 ft. south of the Fifth Range and should stand at some 20 ft. of the theoretic southern limit of the piece of land “A”.  According to the defendant, it was built for keeping the cattle away from the camp.  At some 15 or 20 ft. from the river, this fence is interrupted for about 15 ft.  This opening is the only access the defendant has to part of his woodland on lot 615.  Until 2001 there was a road  (R-S) from Chemin Mercier, between the two chalets,  down to the river bank and then turning south and leading to the defendant’s woodland through the H-C-G triangle.  This road was moved in 2001 by the plaintiff so that  it starts at Chemin Mercier a couple of feet north of the fence and follows it down to the opening (T-S).  

 

[56]      The evidence is also that the defendant and his predecessors crossed the triangle H-C-G many times a year, cut branches there, put gravel on the road and maintained it.  The defendant also says that at one time his father prevented the plaintiff’s father from retrieving a fallen tree and dragged it out of the river for himself. 

 

[57]      In these circumstances,  the Court cannot say that the plaintiff’s possession of the triangle H-C-G has been exclusive.  Over the years, both parties have been using this triangle for their own purposes.  This case is similar to the first example given by Lafond in the quotation pointed out in paragraph 33. 

 

[58]      The plaintiff argues that the defendant crossed this triangle as a passerby and not as an owner.  In the absence of evidence on the contrary (“Nobody talked about that”), the defendant and his predecessors who have a title of ownership on the triangle were deemed to have  possessed for themselves (s. 2194 C.C.L.C.) and still they are (921 par. 2 C.C.Q.).

 

[59]      The plaintiff argues that his title on part of lot 615 should prevail because its description states that it is bounded “on the East by the little Cascapedia River” which is a defined limit.  The rule stating prevalence of defined limits over measures can only clear up a divergence in a single title.  It cannot be used in order to corner a piece of land already sold to a neighbour (Eubelus Hardy) by a common predecessor (Robert Hardy).

 

Remedies searched by the defendant.

 

[60]      Since there is a gap in his abstract of title,  the defendant asks for title of ownership of part of lot 615 under 805 C.C.P.  Except for the triangle already mentioned and discussed, there is no actual dispute between the parties on this question.  He also asks for a declaration that he is the holder of fishing rights on lot 615.

 

FOR THESE REASONS THE COURT

 

[61]      DECLARES that the defendant is the holder of fishing rights in the Little Cascapedia River on lot 615 in the Fourth Range of the township of New Richmond, Québec;

 

[62]      DECLARES that the plaintiff is the sole owner of the following lands:

 

A certain piece or portion of land situated at New Richmond, County of Bonaventure, in the fourth range of the township of New Richmond , known and designated as being a part  of the original lot number SIX HUNDRED AND FIFTEEN (PT 615) on the official Plan and Book of reference for the township of New Richmond, first registration division of Bonaventure, measuring ONE THOUSAND FOUR HUNDRED AND TEN FEET in depth by ONE HUNDRED AND FIFTY SEVEN FEET in width (1410’ X 157’), containing 4.75 acres  in superficies, more or less, and bounded as follow: on the West by Albert Hardy or representatives, on the East by Lawrence Cochrane, on the North by the fifth range and on the south, by the remaining portion of same lot, circumstances and dependences.

 

A certain piece of land situated at New Richmond, County of Bonaventure, in the fourth range of the township of New Richmond, known as being part of the original lot number SIX HUNDRED AND FIFTEEN (Pt 615) on the official Plan and Book of reference for the township of New Richmond, first registration division of Bonaventure, and bounded as follow: on the North by the property belonging to Lorne Cochrane or representatives, on the South by the third range, on the East by the property belonging to Lawrence Cochrane and on the West by the property belonging to Albert Hardy or representatives.

 

[63]      DECLARES that the defendant is the sole owner of the following land:

 

A certain piece of land lying situated at New-Richmond, County of Bonaventure, in the fourth range of the township of New-Richmond, known as being part of the original lot number SIX HUNDRED AND FIFTEEN (Pt 615) on the official plan and book of reference for the township of New-Richmond, first registration division of Bonaventure, measuring, two acres in width by THIRTY THREE acres and one third of an acre in depth  (2 a.  X 33 1/3 a.) and bounded as follows: to the North by the fifth range, to the south by the third range, to the East by Romuald Querry or his representatives, and to the West by the property belonging to Albert Hardy or his representatives, save and except:

 

A certain piece of land lying situated at New-Richmond, County of Bonaventure, in the fourth range of the township of New-Richmond, known as being part of the original lot number SIX HUNDRED AND FIFTEEN (Pt 615) on the official plan and book of reference for the township of New-Richmond, first registration division of Bonaventure in a shape of a triangle bounded as follows: to the East by the Little Cascapedia River, to the West by Ronald McWirther or representatives and to the South by Lawrence Cochrane.

 

[64]      ORDERS the Personal and Movable Real Rights Registrar for the Registration Division of Bonaventure I to register the present judgment and the ownership title of the parties on presentation of an application according to the law;

 

[65]      The whole, without costs.

 

		__________________________________ ROBERT LEGRIS
Me François Bérubé
Cain, Lamarre, Casgrain, Wells
Attorney for the plaintiff
Me Andrée Rioux
Attorney for the defendant.
Date of hearing :	June 19, 20, 21, 22, 2007