Harding v Hazell et Al

• Jurisdiction: Anguilla
• Judge: Roberts, J.
• Judgment Date: 29 July 2013
• Neutral Citation: AI 2013 HC 3
• Docket Number: AXAHCV 40 of 2012
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 29 July 2013

High Court

Roberts, J. (Ag.)

AXAHCV 40 of 2012

Harding

and

Hazell et al

Appearances:

Mr. Horace Fraser for the appellant

Mrs. Cora Richardson Hodge and Ms. Shameka Hodge for the respondents

Real Property - Boundary — Title — Easement — Interference with right of way — Determination of position of boundary.

1 Roberts, J. (Ag); This is an appeal from the decision of the Registrar of Lands of Anguilla determining the position of the boundary between two parcels of land, one being a right of way. The appeal was brought by virtue of section 147 of the Registered Land Act of Anguilla RSA c. R30. The procedure governing the appeal was that set out in Part 60 of Eastern Caribbean Supreme Court Civil Procedure Rules, 2000. Under the CPR the appeal to the High Court is by way of rehearing ( CPR 60.8 (1)).

2 The appellant sought the following relief, which I will construe to be the grounds of appeal since the grounds of appeal appear not to have been annexed to the Fixed Date Claim form in accordance with the Rules (Rule 60.2 (1))

• 1. A declaration that the Registrar erred in her Decision when she found as a matter of fact and law at Paragraph 46 (h) and (i) of the decision, that the appellant's/claimant's application was statute barred pursuant to section 3 (1) (a) of the Limitation Act.

• 2. A Declaration that the Registrar erred in her finding of abandonment of the easement. The Registrar's finding that the encroached portion of the easement has been abandoned by the appellant/claimant is deeply flawed.

• 3. A Declaration that the Registrar erred in finding Maintenance of Boundary features. This finding of the Registrar is also flawed for the reasons already stated at Grounds 1 and 2.

• 4. An order that the appellant's/claimant's title to the property for which she is registered in the Anguilla Land Registry continues without any or such rectification as is purported by the Registrar.

• 5. An Order that the disputed common bound is fixed in accordance and pursuant to the registration of Registration South Central Block 38512B Parcel 107.

• 6. A Declaration that the appellant/claimant as a bona fide purchaser for value and the registered proprietor of Parcel 155 is entitled to the 20ft right of way as property and correctly registered by the Anguilla Land Registry.

• 7. A Declaration that the Registrar went beyond the powers vested in her pursuant to the Registered Land Act when she ordered that a new position of the common boundary of Parcels 107 and 136 be noted on the Registry Map contrary to that which was correctly registered.

• 8. A Declaration that the Registrar's finding that the bound was always in the same location is against the weight of the evidence and so perverse a finding that it ought to be struck down as being biased, unreasonable, unfair, irrational and unreliable.

• 9. An order that the respondents/defendants demolish and remove their wall from encroaching on the road and the costs of such work, if any, be exclusively borne by themselves and thereafter the respondents/defendants are to maintain their eastern boundary in accordance with the entries in common as registered by the Anguilla Land Registry in respect of Parcels 107, 136 and 155.

• 10. An Order that the Decision of the Registrar is stayed until the outcome of the appeal.

• 11. Costs

• 12. Such further or other relief as the Honourable Court shall deem fit.

3 The appellant filed a fixed date Claim form on June 1st, 2012 and amended it on June 15th, 2012. The appellant's affidavits in support of her appeal were filed July 15 2012 and July 30 2012 and the respondents filed their response in an affidavit by Cyril Mitchell Hazell filed July 16th, 2012.

4 In her affidavit the appellant deposed that she was the registered proprietor of Registration Section South Central Block 38512B Parcel 155. She “bought [the land] from my previous proprietor who had not been living in Anguilla and who had acted through a power of attorney granted to Mr. Cecil Niles”. She swore that the respondents/defendants were her neighbours and the registered proprietors of parcel 136 and that the two properties were separated by the registered 20ft easement. The respondents formerly had a wire fence on their eastern flank and in August 2008 they replaced the wire fence with a wall. “The wall is now built upon the right of way and particularly affects the access to, and ultimately impacts on the value of my property”. In a report by Mr Douglas Sterling, land surveyor, he advised that the respondents “had encroached into the right of way from 2.1ft to 3.8ft along my entrance.”

5 The appellant stated further that the respondents/defendants have refused to remove their wall and that they continue the nuisance each day. Their wall is causing access difficulties for my entrance in that “larger commercial vehicles, such as a water truck or a stretch limousine (on the occasion of a family funeral in February 2012) were unable to pass”. She stated further that larger vehicles approaching from the north cannot swing left into her entrance nor those coming from south turning right. The wall juts across the road. She therefore applied to the Registrar to determine and indicate the position of the uncertain disputed common boundary to Parcel 107 and 136 situate in Registration Section South Central Block 38512B.

6 The respondent Cyril Mitchell Hazell in his affidavit in response stated that he and his wife were the registered proprietors of Registration South Central Block 38512B Parcel 136 since 1998. When he purchased parcel 136, he relied on the bounds placed by Mr Cecil Niles as the licensed Land Surveyor.

7 The respondents' evidence was that a wire fence was placed in accordance with the measurements and bounds placed by Mr Niles and that at all times they relied on those measurements and bounds. The wire fence was replaced by a wall in August 2008.

8 Mr Hazell denied that the wall was built upon the right of way. He also denied that the wall affected the access to and the value of the appellant's property. He stated that “several trucks and even ambulances make regular use of Parcel 107 in order to access the Complainant's property”.

THE REGISTRAR'S DECISION

9 The Registrar after hearing the evidence including a site visit decided as follows

• (i) I determine that the position of the common boundary is located where the fence was and wall now is located.

• (ii) I order that the new position of the common boundary of parcel 136 and 107 be noted on the Registry Map.

• (iii) No order as to costs.

10 The appellant challenged the decision of the Registrar on 5 grounds, namely –

• 1. That the Registrar erred when she found that as a matter of fact and law the appellant's application was statute barred pursuant to section 3 (1) (a) of the Limitation Act.

• 2. On the Question of the Registrar's finding on abandonment of easement or rather partial abandonment of easement.

• 3. That the “Registrar erred in finding Maintenance of Boundary features.”

• 4. That the Registrar went beyond the powers vested in her pursuant to the Registered Land Act when she ordered that a new position of the common boundary of Parcels 107 and 136 be noted on the Registry Map contrary to that which was correctly registered.

• 5. That the “Registrar's finding that the bound was always in the same location is against the weight of the evidence and so perverse a finding that it ought to be struck down as being biased, unreasonable, unfair irrational and unreliable'

FINDING OF FACTS

11 From all the evidence before me I have made the following main findings of facts.

• (1) Parcel 107 is registered as a 20ft right of way. Parcel 136 was registered to the respondents as joint proprietors August 25 1998. Mr Cecil Niles, a licensed land surveyor, was responsible for placing the bounds to the Parcel 136. The respondents erected a fence along the eastern boundary of their property in 1998 relying on the bounds placed by the land surveyor.

• (2) The applicant purchased parcel 155 from Mr Cecil Niles who was acting under a power of attorney from the proprietors who lived abroad.

• (3) Both parcel 136 and 155 derived a benefit from Parcel 107, the 20ft right of way.

• (4) At some time in 2008 the respondents replaced the fence with a wall. Part of the wall runs parallel to the entrance of parcel 155, applicant's property.

• (5) In a report dated August 13th, 2010 Mr Douglas Sterling, Land Surveyor with the Government of Anguilla at the time, determined that the southern section of the wall is encroaching parcel 107 Block 38512B as registered by 3.8 feet and the mid-section of the wall by 2.1 feet.

• (6) The bounds are and always have been in the same location as where the surveyor originally placed them. The respondents erected the fence in line with the bounds that were placed there by the surveyor.

• (7) The respondents are deemed to have notice that the registered width of the right of way was 20ft.

THE LAW

12 The legal issues raised in this appeal involve indefeasibility of title, nuisance, interference with right of way, partial abandonment of easement and limitation of action.

INDEFEASIBILITY OF TITLE

13 The appellant sought a declaration in this appeal that “as a bona fide purchaser for value and the registered proprietor of Parcel 155 she is entitled to the 20ft right of way as properly and correctly registered by the Anguilla Land Registry”. In support the appellant referred to the Privy Council case from the British Virgin Islands, Racoon Limited v. Harris Turnbull Executor of James Turnbull (deceased) and Harris Turnbull (PC appeal No. 33 of 1995 p. 85). In that case the following observations of Lord Wilberforce delivering the judgment of the Board in Frazer v. Walker (1967) AC 569 were referred to the Board. “…at page 580 Lord Wilberforce referred to the phrase “indefeasibility of title” and continued:–

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