Planting of trees formed visual barrier but did not exclude city from land

Applicant property owner made claim to strip of disputed land that bordered owner's property and was legally owned by respondent city. Owner claimed that he had had possession through his predecessors in title, since mid-1970's, and city claimed test had not been met, as predecessors did not intend to take possession of city land. City claimed policy was against taking adverse possession of land, intended to benefit public. Owner brought unsuccessful application for adverse possession. Applications judge found that predecessor planted trees to form clear visual barrier, but that planting of trees did not exclude city from land. Applications judge found that owner failed to provide sufficient evidence to meet third branch of adverse evidence test of proving that city had been excluded from possession of disputed land in 10 years immediately prior to when land was first registered in Land Titles system. Owner appealed. Appeal dismissed. Application judge made no palpable and overriding error. There was no error in application judge’s conclusion that owner did not satisfy third branch of test for adverse possession. Application judge’s finding that tree line did not form insurmountable obstacle was factual determination and did not constitute elevated standard in considering third element.

Richard v. Niagara Falls (City) (2019), 2019 CarswellOnt 10629, 2019 ONCA 531, R.G. Juriansz J.A., K. van Rensburg J.A., and David M. Paciocco J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 22302, 2018 ONSC 7389, J.R. Henderson J. (Ont. S.C.J.).

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