Court of Appeal of Quebec

Petosa c. Aoun

Marcotte, Hamilton, Beaupré

Appeal from a judgment of the Superior Court dismissing a motion for the judicial recognition of a right of ownership through acquisitive prescription and claiming compensatory and punitive damages. Dismissed.

The parties own contiguous lots. The trial judge concluded that the appellants and their predecessors in title had not exercised effective possession of the strip of land located beyond the dividing line and on the lot belonging to the respondents and therefore that they could not claim to have acquired this strip of land and the hedge planted there by acquisitive prescription.

Contrary to the trial judge’s assertion, establishing the right to prescribe does not depend on an indication of encroachment in the certificate of location. This misunderstanding on the part of the judge may have influenced his finding of fact with respect to the belief that the respondents' predecessors in title had about the ownership of the hedge. However, since that belief was not determinative in establishing the animus of the appellants or of their predecessors in title, it is not a decisive error that taints his conclusion that effective possession of the parcel of land or of the hedge had not been established.

It is of course clear that effective possession must be public, but its public character is nonetheless assessed according to the nature of the object. The possessor is required to perform the same acts as though he or she were the owner, but nothing more.  In the case of the maintenance of a hedge or the simple "use" of the hedge as a fence or living fence, it is not singular or unusual for a surveyor to find no apparent encroachment. This also explains why certificates of location do not make it possible to deny public possession.

In this case, in light of the whole of the evidence, the judge observed conflicting elements that led him to reject the argument of effective possession of the hedge, including its location on the respondents' lot. On this subject, he stated that even if it were accepted that the appellants’ predecessor in title planted the hedge, which in his view had not been established, the owners of the neighbouring lot would nevertheless have acquired it by accession. To rebut the presumption of ownership by accession under art. 415 of the Civil Code of Lower Canada the appellants could have shown that they had a surface right established by agreement or by prescription. The judge found, however, that they had not proved that they had been given a surface right in the parcel of land and the hedge.

On the other hand, it is generally recognized that, where the owner in title performs possessory acts, those acts interfere with a third party's effective possession even if they are less characteristic than the possessory acts of the third party. Conversely, it was purely optional for the appellants and their predecessors in title to cut the hedge branches and foliage growing beyond the dividing line towards their lot and they were certainly entitled to do so, but it does not constitute an encroachment on the property of another that can be the basis for the effective possession required for acquisition by prescription. The judge therefore did not commit a reviewable error in finding that the fact that the parties each trimmed the hedge – which had originally been planted on the respondents' lot and of which some of the branches and foliage had reached the dividing line between the lots over the years and then crossed it – was discordant with effective possession.

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