Citation: Roche v. Roche
2002 PESCTD 33
Date: 20020531
Docket: S1-GS-19081
Registry: Charlottetown
PROVINCE OF PRINCE EDWARD ISLAND
IN THE SUPREME COURT - TRIAL DIVISION
BETWEEN:
LEONARD ROCHE and CLARENCE ROCHE of Iona, Queens County,
Prince Edward Island, in their own capacities and in their capacities
as Executors of the ESTATE OF IVAN ROCHE formerly of Iona,
Queens County, Prince Edward Island
APPLICANTS
AND:
MERVIN ROCHE and MARY H. ROCHE
RESPONDENTS
Before: The Honourable Chief Justice J. Armand DesRoches
Maria MacDonald
Allen MacPhee, Q.C.
Solicitor on behalf of the Applicants
Solicitor on behalf of the Respondents
Place and Date of Hearing
Charlottetown, Prince Edward Island
May 21, 2002
Place and Date of Decision
Charlottetown, Prince Edward Island
May 31, 2002
Citation: Roche v. Roche
2002 PESCTD 33
S-1-GS-19081
BETWEEN:
LEONARD ROCHE and CLARENCE ROCHE of Iona, Queens County,
Prince Edward Island, in their own capacities and in their capacities
as Executors of the ESTATE OF IVAN ROCHE formerly of Iona,
Queens County, Prince Edward Island
APPLICANTS
AND:
MERVIN ROCHE and MARY H. ROCHE
RESPONDENTS
Prince Edward Island Supreme Court - Trial Division
Before: DesRoches, C.J.
(In Chambers)
Date of Hearing: May 21, 2002
Date of Decision: May 31, 2002
[5 Pages]
REAL PROPERTY - Adverse Possession - Possessory Title - Extinguishment of title of
true owner.
Cases Considered: MacIsaac v. MacEachern (1977), 13 Nfld. & P.E.I.R. 375
(P.E.I.S.C.A.D.); Johnson et al. v. Squires et al., [1999] 2 P.E.I.R. 113 (P.E.I.S.C.A.D.)
Maria MacDonald, solicitor on behalf of applicants
Allen MacPhee, Q.C., solicitor on behalf of respondents
DesRoches C.J.:
[1]
The applicants seek a declaration that they have an interest in approximately 62
acres of land located in Iona. The respondents are the registered owners of the land.
[2]
By deed dated December 6, 1947 and registered on December 9, 1947 Willard
Roche and Kenneth M. Martin conveyed approximately 71 acres of land, including the
land in question, to Mary H. Roche who, in turn, conveyed it to her son, Mervin Joseph
Roche by deed dated April 9, 1992 and registered on April 28, 1992, reserving a life
interest to herself. Willard Roche had obtained the land in question from Walter
Roche in 1939.
[3]
The applicants claim that their father, Ivan Roche, purchased the 62 acres in
dispute from Willard and his wife Mary Roche in about 1963. They also claim to be
the beneficial owners of the property by way of adverse possession for a period in
excess of twenty years.
[4]
The 62-acre parcel lies adjacent to land owned by Ivan Roche and now in the
possession of his sons Leonard and Clarence Roche. According to the applicants, their
father mentioned to them that he had purchased the land from Willard Roche. At his
death, Ivan Roche left 70% of his real property to Clarence Roche and 30% to Leonard
Roche.
[5]
Clarence Roche filed an affidavit and also testified at the hearing. He stated his
father had been in possession of the land from 1963 until his death on April 1, 1996
following which he and his brother Leonard have been in possession of it in their
capacities as Executors of their late father’s estate, and as beneficiaries under his Will.
[6]
While the applicants acknowledge that no deed conveying the land to their
father was ever registered, nor could they produce a signed deed to that effect, they
rely on a statement of account issued to their father by Wm. A. Reddin, a lawyer, now
deceased, who had a practice during the time in question in Montague. This account
dated February 1, 1996 purports to be for legal services performed by Reddin for Ivan
Roche during the period June 4, 1963 to December 23, 1965. The entries include the
following:
1963
Legal Services
June 21 To:
Long and difficult consultation re agreement,
insurance, and Walter Roche property (1 hr.)
July 15 To:
Search at Registry Office, Deed to Michael Joseph
Roche and Deed to Walter Roche and extracting
same
Sept. 18 To:
Long consultation with you, receiving from you
Page: 2
Deed from your father, consultation re Willard
Roche, bank, etc.; Taking execution of Mortgage by
you and your wife and Warrant of Attorney by you
[7]
Sept. 27 To:
Drawing Deeds to your father to you and Willard
Roche to you
Dec. 23 To:
Consultation instructions to pay Bank in full,
balance to K.M. Martin and drawing cheque to you
and Willard Roche ($900)
Under the title “Disbursements” is the entry:
Dec. 23 To:
Cheque to you and Willard Roche
$900.00
[8]
Clarence Roche testified his mother told him she and her husband Ivan had
taken Willard and Mary Roche to Reddin’s office where they had signed a deed
conveying the 62-acre parcel to Ivan Roche. There is, in fact, an unsigned deed in
existence dated June 6, 1963 drawn between Willard Roche as grantor and Ivan Peter
Roche as grantee. This deed, however, relates to the whole of Willard and Mary’s farm
consisting of some 71 acres including their home and buildings. The 62 acres in
dispute does not include the home and surrounding nine acres.
[9]
The only person who allegedly attended this deed signing at Reddin’s office in
1963 who is still alive is Mary Roche. She testified at the hearing and provided an
affidavit. Mary is in her 89th year. She experiences some short-term memory loss, but
her affidavit evidence and her testimony both are very clear concerning the 62-acre
parcel: she was never asked to sell any land or to sign a deed to Ivan Roche; she was
never asked by anyone to go to Montague to sign a deed; she never heard of Willard
ever going to Montague to see a lawyer about preparing a deed to Ivan Roche; and she
does not believe she would ever have signed such a deed. The evidence of Mary
Roche in this respect is supported by the lack of any reference in Reddin’s account to
Mary Roche, or to any meeting at his office with Willard and/or Mary Roche and Ivan
Roche to sign such a deed.
[10] Clearly, the applicant’s claim based on a purported transfer of the parcel in
dispute from Willard, or Willard and Mary, to Ivan Roche, has not been made out. If
they are to succeed in their application the applicants must do so on the basis of
adverse possession.
[11] In MacIsaac v. MacEachern (1977), 13 Nfld. & P.E.I.R. 375, the Appeal Division
of the Supreme Court of Prince Edward Island set out the elements necessary to
extinguish the title of the true registered owner as:
Page: 3
...actual, constant, open, visible and notorious occupation excluding the true
owner.
[12] More recently, in Johnson et al. v. Squires et al., [1999] 2 P.E.I.R. 113 the same
Court considered again the issue of adverse possession and concluded in that case that
the true paper owner’s title had not been extinguished because he had never been
dispossessed by the person who had farmed the property in question for many years.
Mitchell J.A. (as he then was) writing for the Court stated at paragraph [3]:
[3]
I would allow the appeal because the trial judge erred at law in
holding that the title of Simmons had been extinguished under the Statute of
Limitations by the time he purported to convey the land to the appellants.
The law is clear that one of the conditions that must exist in order to
extinguish the title of a true paper owner is that the possessor must have
occupied the property in question in a way that is inconsistent with the true
owner's intended use for at least twenty uninterrupted years. For the Statute of
Limitations to run, possession must be without the permission of and to the
exclusion of the paper title owner. That condition was not present in this
case.
[13] The evidence in Johnson et al. had established there was a caretaking
arrangement that allowed Squires to farm the land on a year-to-year basis and keep the
profits. Squires never possessed the land in a way that was inconsistent with the
owner’s intended use.
[14] Clarence Roche testified that in 1963 he helped his father clear some of the 62
acres. He stated they took in heavy farm equipment and cleared land for farming. He
said his father had soil samples tested and it was found the land was “not the best”, so
they did not clear any more land. Clarence testified they improved the land and,
basically, did everything to it they did to all their other land; cultivated, fertilized and
planted crops. He said his father had fenced the 62-acre parcel and, in 1974, his father
extended an existing barn on his farm which extension crossed the boundary line onto
the 62-acre parcel. He recalls that Willard had helped his father to measure the
foundation for the extension.
[15] A number of relatives, neighbors and former employees of Ivan Roche signed
affidavits which confirm that Ivan Roche was a very honest, hard-working man. They
believe Ivan had purchased the land in question.
[16] Mervin Roche filed an affidavit in which he said his father, Willard, was a
school teacher who also operated a mixed farm. He had helped his father clear some
of the land in question before moving away from home. He recalls his father often
mentioned to him that Ivan Roche, who owned the adjoining farm, had the use of the
farm land because his father could no longer farm it. According to Mervin Roche’s
affidavit, his father stated Ivan was to have the use of the land “for the taxes”, and that
Page: 4
he (Ivan) was not entitled to cut and/or remove wood or lumber from the property.
Mervin Roche stated it was not until a few years ago he discovered that Ivan had cut
trees and had caused “a major mess with a bulldozed road up through part of it”.
[17] Mary Roche stated in her affidavit that when her husband could no longer farm
he allowed Ivan to use the land. She recalls when Ivan extended his barn on to their
property. She said both Willard and she were “cross and upset about Ivan going over
the line with the building by a few feet”, but neither wanted to “make a fuss”. Mary
stated she had a problem with the tax bill after Willard died. She consulted Delores
Crane, a Charlottetown lawyer. Ms. Crane’s affidavit establishes she had a full property
search conducted which confirmed Mary Roche’s ownership of 71 acres, including
the 62-acre parcel. At that time, however, Mary was being assessed for 9 acres only.
Ivan Roche had been assessed on the basis of 124 acres, which included the 62 acreparcel. In 1988, subsequent to Ms. Crane’s intervention, these assessments were
changed to reduce Ivan Roche’s assessment to 62 acres and to increase Mary Roche’s
assessment to 71 acres. It appears Ivan Roche had been paying the taxes on the 62acre parcel of Mary’s 71 acre farm. This supports the respondent’s submission that
Ivan Roche was permitted to use the land but was to pay the taxes on the 62-acre
parcel.
[18] Ursula Stewart is the daughter of Mary and Willard Roche. She filed an affidavit
in support of the respondent’s position and she testified at the hearing. She was not
cross-examined on the following matters which she confirmed in her affidavit:
a.
I remember my father telling me that he had given Ivan
Roche permission to use (farm the land).
b.
From my discussions with my father, I always understood
that Ivan was to pay the taxes, instead of rent. There was to
be a “split on taxes” with my father paying taxes on the
house and nine (9) acres.
c.
Ivan Roche was not required to pay any rent - just the taxes
on what he was using.
d.
In the early 1960's, my father was not able to continue
working around the dairy herd because he had problems
breathing which I understand was some kind of bronchitis.
It was my understanding that my father knew that Ivan
Roche could use more land and was looking for more land
to farm when my father gave up farming.
e.
The way my father told it to me, the arrangement with Ivan
Roche was a Gentlemen’s Agreement. Ivan could use it for
the “paying of the taxes”.
Page: 5
f.
Regarding the building being over the line, my father told
me that sometime after the barn was under construction,
Ivan came over and told my father “we misjudged when we
built the barn, we are in on you a couple of feet”.
g.
My father was an easy going man and from the discussions
that I recall with him over the years, it is my understanding
that he did not do anything about that problem because he
did not want to make a fuss with his neighbor.
[19] The evidence convinces me that Ivan Roche did not occupy the 62-acre parcel
in a way that was inconsistent with the true owner’s intended use. Indeed, there is
evidence to support the conclusion that both Willard and Mary Roche and now
Mervin Roche were not only aware of but also consented to the use of the 62-acre
parcel by Ivan Roche, and more recently by his sons.
[20] Based upon all the evidence presented on this application, I am of the opinion
the applicants have not established their entitlement to a declaration of an interest in
the 62-acre parcel of which the registered owners are Mervin Roche and Mary Roche
who has a life interest. Therefore, the application is denied.
[21] The respondents shall have their costs which I would fix at $1000 plus
applicable taxes and disbursements. I am not aware of any efforts to settle this matter
before the hearing. If any such efforts have cost consequences, counsel may file brief
written arguments in that respect by June 14, 2002.
May 31, 2002
C.J.