Corporation of the City of Nelson v. Mary Geraldine Mowatt, et al.

(British Columbia) (Civil) (By Leave)




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Property - Real property - Acquisition of title by way of adverse possession - Does s. 20 of the Land Title Act, R.S.B.C. 1996 c. 250 preclude de Mowatts from asserting title to the Disputed Area? - Is the doctrine of inconsistent use fatal to the Mowatts’ historical adverse possession argument? - Did the Court of Appeal err in substituting its view of whether there was continuous adverse possession for that of Kelleher J.?

Mrs. Mary Geraldine Mowatt and Mr. Earl Wayne Mowatt, the respondents, live at properties bearing the civil addresses 1112 and 1114 Beatty St. in the City of Nelson, Province of British Columbia. They claim to have purchased both lots at the same time in 1992 from the former owner, Ms. Marquis. The Appellant, the City of Nelson, however, took the view that the lot bearing the civil address 1114 Beatty St. is a municipal road allowance and contends that it was escheated to the Crown after the dissolution of the land company that had owned it pursuant s. 3A of the Escheat Act, R.S.B.C. 1924, c. 81, as amended by S.B.C. 1929, c. 23, s. 2 in 1930-31. In the past, the City had directed Mrs. and Mr. Mowatt, and the former owner, to remove their buildings from the lot because it was City land. In order to clarify their title to the land, Mrs. and Mr. Mowatt took a petition seeking a judicial investigation of the disputed lot under the Land Title Inquiry Act, R.S.B.C. 1996, c. 251, a declaration that they were the owners of the lot in fee simple in possession and an order that they had established good, safe-holding and marketable title in fee simple.

Lower Court Rulings

November 27, 2014
Supreme Court of British Columbia

S067531, 2014 BCSC 2219
Petition seeking a declaration of title dismissed; Summary trial application granted.
March 10, 2016
Court of Appeal for British Columbia (Vancouver)

2016 BCCA 113, CA42449, CA42450
Appeal on petition granted; Appeal on summary trial application granted.