IN THE SUPREME COURT OF NOVA SCOTIA

Citation: Frank Georges Island Investments v. Nova Scotia (Attorney General), 2004 NSSC136

Date: 2004 07 08 Docket: S.H. 211959 Registry: Halifax Between: Frank Georges Island Investments Plaintiff v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in the Right of the Province of Nova Scotia Defendant

DECISION

Judge:

The Honourable Justice Gerald R. P. Moir

Date Heard:

4 May 2004, written submissions received until 31 May 2004

Counsel and Spokesperson:

John A. Keith, Counsel for the Plaintiff Alexander Cameron, Counsel for the Defendant Richard Hattin in speaking for the applicants Dinah Grace, Robert Jones, Patricia Lindley, Alex Rettie, Edward Rettie, Clayton Coveyduck, Peter Stout, Lonsdale Holland, Patricia Webb and Joan McGee

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Moir, J.:

[1]

Introduction - Ten individuals seek to be joined as defendants in this

quieting of titles action. The plaintiff opposes intervention. Most often in quieting of titles actions, the provincial government is a neutral, though not merely nominal, defendant. In this case, however, the government asserts title. It also supports the applications of the ten individuals to intervene. I must allow such applications unless it is clear that the person has no interest that may be affected by the proceedings: Quieting of Titles Act, RSNS 1989, c. 382, s. 10(2).

[2]

Proceedings - Frank Georges Island Investments Limited claims a certificate

of title to a sixty acre island in St. Margarets Bay named Frank Georges Island. The statement of claim asserts title deriving from a 1756 grant from Governor Lawrence to a member of his Executive Council, John Rous. Alternatively, the plaintiff claims ownership through its adverse possession since a conveyance in 1999 and through the acts of possession of parties to previous conveyances alleged to be in the plaintiffs line.

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[3]

As the statute requires, the provincial government is the sole initial

defendant. The Crown chose to defend. It alleges that the island was never granted. It also says that trespasses over the centuries have been occasional and do not support a finding of adverse possession. The defence includes in paragraph 13:

The Attorney General says that from time out of mind the Island has been regarded as, and used by the public as a pleasure island and has been freely trespassed upon by members of the public who have used the Island in a manner consistent with public enjoyment of Crown lands generally and in a manner not inconsistent with Crown ownership of the Island, but inconsistent with any asserted private ownership of the Island.

A similar allegation is made by the ten private parties who seek to intervene and be joined as defendants.

[4]

Section 10 of the statute provides for intervention by private persons.

Justice Cacchione ordered newspaper advertisements giving the public notice of the plaintiffs claim. Nearly four dozen people filed statements indicating they wished to be added as defendants. However, after Justice LeBlanc ordered these to file affidavits and to appear at a specified time to apply to be joined, the number reduced to nine. I heard the nine applications and I granted leave for a tenth applicant to make his application on testimony rather than affidavit.

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[5]

The plaintiff opposed the applications. The Crown supported them. None

of the applicants have counsel. Mr. Richard Hattin was permitted to speak on their behalf and I found his participation to be helpful.

[6]

Evidence from Recent Times - As I said, I was provided with nine affidavits

and I allowed a tenth application on testimony. There was some crossexamination.

[7]

Ms. Dinah Graces home property is the southern most point of a peninsula

that extends out into St. Margarets Bay at the Village of Seabright towards the head of the Bay on the east side. Ms. Grace bought this property in 1973. Her view of the Bay to the south is dominated by Frank Georges Island. She swore I have walked this island end to end, paddled around it, sailed to it, camped on it, and plain watched over it for thirty years. No one lived on the island during these thirty years. However, Ms. Graces family and guests have used it for recreation, as have youth groups and other community organizations.

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[8]

Among Ms. Graces neighbours on the side of the peninsula with a view of

Frank Georges Island are Robert Jones, Patricia Lindley, Alex Rettie, Edward Rettie, and Clayton Coveyduck, who seek to be joined as defendants.

[9]

Robert Jones swore an affidavit. He says he bought his property forty-five

years ago and has used Frank Georges Island since he was seventeen. He travelled there in his skiff and he enjoyed the island. He observed the wildlife, including a rookery of blue herons. Between 1970 and 1985 Mr. Jones frequently took his two children to Frank Georges Island. Permission was never sought and no one seemed to lay claim to the island. Mr. Jones made reference in his affidavit to a fishing shack and an aquaculture operation on the island from 1990 until about 1996. Mr. Jones was not in court and available for cross-examination. The plaintiff was content to produce an order of this Court granted to Frank Georges Island Investments Limited on consent of Ocean Farmers Limited, by which the latter was evicted from the island as an over-holding tenant.

[10] Ms. Patricia Lindley and her husband bought land on the peninsula in 1984 and finished building their home there in 1986. Her two sons were very young then and, as they were growing up, the family visited Frank Georges Island by boat

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or kayak to swim, collect shells and explore the beaches and woods. Every summer, sailors took shelter on the northeast side of island facing the peninsula. In some winters, the family observed seals with pups on the opposite side of the island. Permission was not sought and no one attempted to exercise control. Ms. Lindleys affidavit closes with a statement expressing her interest in this action:

I am extremely concerned that what Mr. Viehbeck [a principal of the plaintiff] intends to do on the island is to develop this property in such a manner that it will have a huge negative impact upon our neighbourhood and on the Island itself. I am not opposed to properly managed development. However when we purchased our property on Umlah point, we believed that the extent of development would be limited by the lands situated on the point itself. Over the years we have participated in meetings of those who share common right-of-way along the private road. It has always been unanimously agreed that we would not seek to turn our road over to the County to have it upgraded to a public road. We have jointly contributed to the maintenance of the road, paying into a common fund, and participating in road mending parties. We have felt that the privacy and peace afforded by a private road were worth the effort and expense. Should Frank Georges Investment Ltd. undertake a subdivision of the island into numerous properties, as appears to be the intent, both our local environment and our personal enjoyment of our own properties will be affected in a very negative manner.

[11] Edward Rettie and his son, Alex Rettie, were summer visitors to the Seabright area in the 1960's. The younger Rettie recalls travelling to Frank Georges Island for picnics and fishing with his uncle and others. He swore, the community used the island for various social events or practical purposes like farming, getting wood. The elder Rettie bought his home property on the

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peninsula in 1974. He enjoys the beauty and serenity of Frank Georges Island and says the island provides safe harbour overnight for countless sailboats. The younger Rettie moved into his fathers home eight years ago. They are concerned that If the island becomes private property, it would no longer be accessible for the enjoyment or practical use of the community. and The development of the said island would adversely affect the public use thereof.

[12] Mr. Clayton Coveyduck testified he had a vacation home in the area for about twelve years, then he built his residence next to Ms. Grace. He has witnessed sailboats harboured near Frank Georges Island and sailors going ashore. He said his interest in this proceeding is simply that there is not enough recreational Crown land in Nova Scotia and the island should be available for the wider public.

[13] Mr. Peter Stout lives at the Head of St. Margarets Bay. He knows Frank Georges Island as a place for recreation and as a safe haven on the east side, away from open sea. He says the island is the only overnight island anchorage in St. Margarets Bay. Many recreational boats stop there between May and November each year. He, himself, has anchored overnight near the island at least fifty times

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in the last ten years. Mr. Stout has also witnessed the island itself being used. Boaters come ashore there. Birds, including terns and eagles, and wild mushrooms attract people. Mr. Stout has personally enjoyed the island for seventeen years, including with his children in earlier years.

[14] Mr. Lonsdale Holland lives in Halifax. He says his wifes family used the island since the 1920's. He and his wife and his children travelled to the island by motor boat or sailboat frequently between 1965 and 1980 to swim, picnic, barbecue and pick mushrooms.

[15] Ms. Patricia Webb Hollands home is in Seabright and the property runs from the main highway to the north shore of a small cove. The cove opens onto St. Margarets Bay at a point where the view is dominated by the eastern shore of Frank Georges Island. Her father built the home in 1949 and she has been familiar with Frank Georges Island for fifty eight years. Her parents, her brothers and she enjoyed unrestricted access. They used the island for recreation including picnics, swimming, digging clams and exploring. In the late 1950's and early 1960's, Ms. Webb Holland and her teenage friends often made use of the island during the summers. It was a very popular spot.... In the late 1960's and early 1970's, Ms.

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Webb Holland used the island with her family of three children and she now hopes to go there with her grandchildren. Also, she knows the island to be a safe haven for yachtsmen or sailors on afternoons or overnight.

[16] Ms. Joan Elizabeth McGees property is in the Village of Seabright. It is on the next cove north of Ms. Webb Hollands. Ms. McGees parents bought the property in 1943 and she came there during summertimes. She lived in Ontario off and on in the 1970's, 1980's and 1990's, full time from 1989 until 1999. She has lived at the property in Seabright as her home since 1999. Her parents brought her and her brothers to the island for recreation, she brought her children there and she looks forward to bringing her grandchildren there. She swore We have always been able to come here without hassle from anyone.

[17] Historical Evidence - Ms. McGee provided, in her affidavit and in crossexamination, some historical information concerning the use of the island. She understood that Robert and Jane Boutilier used the island for farming in the late 1800's. They moved from the island to Ms. McGees property on the mainland in the 1890's. Mrs. Boutilier visited the McGee family in the 1940's. Her grandson, Lester Boutilier, can confirm his grandparents lived on the island.

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[18] As Mr. Keith for the plaintiff pointed out, this information is consistent with the plaintiffs abstract of title. There is a 1810 deed conveying Rouse Island and two smaller nearby islands in St. Margarets Bay to a George Boutilier. These were conveyed by George and Elizabeth Boutilier to Francis Boutilier in 1821, the larger island now being referred to as Jolimores. Trustees of the estate of a deceased Francis George Boutilier conveyed thirty-three acres on Frank Georges Island to James J. F. Boutilier. The conveyance was supported by a 1861 subdivision plan showing the thirty-three acres and the remaining reserved or not sold portion of Big Island or Frank Georges Island, the apostrophe being included and the origin of the name becoming clear. This plan shows a wharf and a store on the eastern shore of the island. The description in the conveyance makes reference to a road and a house as well as the wharf and the store. Probate documents show that James J. F. Boutilier and his wife, Mary Elizabeth, drowned just before Christmas 1865 while attempting to cross in a boat from the Mainland to the Island where they resided. The inventory includes share of Frank Georges Island (Homestead) $800.00". Chattels listed in the inventory show the family was engaged in farming and fishing. Mary and James Boutilier left behind six children, all under twenty-one. Title to the thirty-three acres would have

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passed undivided to them. Various conveyances were made between the children or their spouses in the 1890's. In the first half of the twentieth century, heirs of one of the children purported to convey a whole interest in the thirty-three acres to the widow of one of the children and she conveyed the property to a Simeon Boutilier in 1923, but she reserved the home on the homestead for the remainder of her natural life.

[19] What became of the reserved part of the island? The trustees of the Francis George Boutiliers estate obtained a licence from the court to sell the remainder and the two smaller islands at public auction. However, it appears there were no bidders at either of the two sales the trustees organized. Thus, the remainder would have stayed in the heirs of Francis George Boutilier, his nine children. Some of the interests or claims of these nine children were acquired by the same Simeon Boutilier.

[20] It is the position of the plaintiff that Simeon Boutilier acquired all unextinguished interests in Frank Georges Island to the extent that Francis George Boutilier had any title to the island. The plaintiff says that unconveyed interests of some of the six children of James and Mary Boutilier and some of the nine children

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of Francis George Boutilier were extinguished by operation of s. 4 of the Marketable Titles Act and the interests of the remaining children eventually passed to Simeon Boutilier. Whether this is so, whether title passed from the Crown to Francis George Boutilier and whether Simeon Boutiliers title passed to the plaintiff are issues for trial and they are not important to the decision I have to make. What is important is that the record tends to show that from 1821 until 1861 Francis George Boutilier used Frank Georges Island under cover of deed and either he or his predecessors built a wharf, a store, a house and roads on the island. Further, the record tends to show that, under cover of deed, James and Mary Boutilier and their children occupied a large portion of the island as their home and they also used it for fishing and farming. Furthermore, as late as 1923 a descendant by marriage of James and Mary Boutilier was referring to at least a portion of the island as her homestead and reserved a life interest in the home on the island.

[21] The Meaning of Interest in Subsection 10(2) - Section 10 of the Quieting of Titles Act provides for intervention in a quieting of titles action. A person who thinks he may be affected by the claim for a certificate may apply: s. 10(1). Subsection 10(2) empowers the judge. The language is mandatory and the

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threshold is low: ...the judge shall permit the person to intervene as a defendant unless it is clear that the person has no interest that may be affected by the proceedings.

[22] For the applicants, Mr. Hattin drew my attention to Comox-Strathcona v. Hansen, [2003] B.C.J. 1498 (SC). However, that was a planning law case. The defendants built an airstrip on their land. The local zoning laws prohibited various uses for this land, including as an airport. The municipality sued for a declaration and an injunction. Owners adjacent to the airstrip were allowed to intervene. In contrast, the present case does not seek to enforce any planning law. It seeks to settle ownership. The first question is whether interest in s. 10(2) is broad enough to cover people who might be affected in some way if the plaintiff is found to be the owner. If not, the applicants must demonstrate a possibility of some legal interest in the property or seek to enforce planning law if a proposed use is unlawful. Mr. Hattin also referred to Bedford v. Guernsey Development Group, [1986] N.S.J. 286 (SC). In that case, the Town of Bedford obtained a determination of the Towns title interests in lands owned, subject to those interests, by the defendant. Residents applied under the Civil Procedure Rules to intervene. Mr. Hattin referred me to this passage at para. 5:

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As the corridor and the Eagle Rock area it leads to were originally intended for the benefit of the people of the area, and because of the specific interest of some of the intervenors, I have granted an order allowing these residents to be parties to this action.

In that case, the applicants asserted a legal interest by way of public dedication and acceptance. In any case, their participation in the action did not turn on s. 10(2) of the Quieting of Titles Act or a similar provision. Again, the first question is the meaning of interest in subsection 10(2).

[23] The main argument for the applicants takes interest to have the sense of The relation of being concerned or affected in respect of advantage or detriment or The feeling of one who is concerned or has a personal concern in anything: interest, Oxford English Dictionary 2nd ed. (Oxford, 1991), v. VII, p. 1099, senses I 2a and I 7a. The question is whether, in subsection 10(2), interest has that kind of meaning or its primary meaning, The relation of being objectively concerned in something, by having a right or title to, a claim upon, or a share in. including legal concern in a thing; esp. right or title to property...: OED, sense I 1, I 1a.

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[24] I must construe the operative words of s. 10(2) in their full context including the surrounding text, the statutory scheme of which they are part and the statutory purposes which they are to serve.

[25] The relevant textual references include the long title, An Act to Provide for the Judicial Ascertainment of Rights in Real Property. The word interest is used in the primary sense for the definition of property right, any estate, interest, power or other right in or with respect to land: s. 2(h). Section 9 concerns references by the Court to the Attorney General where a judge is not satisfied that materials filed by the plaintiff disclose all the persons and interests likely to be affected: s. 9(1). The referee must investigate in the interest of all adverse claimants: s. 9(1) and must report all interests and circumstances that appear to be reasonably possible: s. 9(4). Then follow the provisions most pertinent to the present question. Subsection 10(1) provides:

Any person, who thinks that he may be affected by the claim for the certificate, may be heard on the application for directions and may be permitted to intervene as a defendant at any time, by the court or a judge, but shall not be permitted to contest the claim unless the person is added as a defendant.

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Subsection 10(2) provides:

The person shall apply to a judge in chambers to be made a defendant after giving two clear days notice of application to the plaintiff, and the judge shall permit the person to intervene as a defendant unless it is clear that the person has no interest that may be affected by the proceedings.

The word interest also appears in s. 12(2), which allows the court to order a special remedy. Where a person who has not been in possession in the past twenty years has or may have an interest in the lands the Court may order that the interest of such person vest in the plaintiff subject to a provision for compensation under s. 12(3) for the value of that interest. The usual remedy under the statute is a certificate of title and the essential finding to support a certificate of title is made by the Court summarily under s. 11(4) or after trial under s. 12(1). In either case the finding must be that a claimant is entitled to a property right.

[26] The word interest in s. 10 is used in association with textual references to property rights. Further, the same word is used in s. 2(b), s. 12(2) and s. 12(3) in its primary sense. Furthermore, the use of the plural of the same word in s. 9(1) and s. 9(4) is at least as consistent with the primary sense of a legal right in

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something as it is with the secondary sense of a concern for or curiosity in something. The surrounding text suggests the primary meaning.

[27] The scheme and purpose of the statute can be understood in its historical context. This statute was one of those resulting from the work of the uniformity commissioners late in the nineteenth century. It responded to the situation, well familiar to Nova Scotians, where the conventional land titles system had broken down in respect of some pieces of land. Owners or locations or both could not be ascertained with certainty. The scheme allows a person claiming property to sue the Crown and prove entitlement. Ultimately, the scheme provides a remedy to successful claimants by way of an order for a certificate of title, which extinguishes most potential or actual competing claims and gives the plaintiff clear title. As already stated, this may be achieved summarily or, in cases like the present where the Crown or others defend, upon trial. The scheme includes provisions, of which s. 10 is a part, by which those with potential competing claims are, as much as possible, notified of the proceedings and given an opportunity to contest the plaintiffs claim and, even, to advance their own claim for a certificate.

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[28] This scheme has all to do with determining property interests and nothing to do with the interest of the general public in land use. The later is the subject of planning law under the Municipal Government Act and under the laws of the various municipalities. The scheme of the Quieting of Titles Act indicates that interest in s. 10 refers to the primary sense of that word, as in a legally enforceable interest.

[29] With these contexts in mind, one turns to the purpose of the statute and there can then be no doubt about the meaning of interest in s. 10(2). I adopt the following from Mr. Keiths pre-hearing brief:

Proceedings under the Act relate entirely to the determination of title issues. The case law is clear that the purpose of the Act is to provide a mechanism to quiet titles (Bowater Mersey Paper Co. Ltd. v. Nova Scotia and Peck (1988), 83 N.S.R. (2d) 162 (N.S.C.A.)) or , put another way, deal with title problems (Baker v. Nova Scotia (Attorney General), [1992] N.S.J. No. 222 (N.S.C.A.)). Similar statements of purpose have been expressed in other jurisdiction when discussing corresponding legislation. In Pawlett et al v. Newfoundland (1983), 41 Nfld. & PEIR 349 (Nfld. C.A.), Gushue, J. A. said:

The purpose of the Quieting of Titles Act is to confirm title to land in a person (or persons) who is able to prove to a judges satisfaction that his claim to the land is valid. That title would have to be shown to stem from a legal basis or, in the alternative, be based on possession. As section 2 of the Act states, it is an investigation of a claimed title to land. Thus, the sufficiency of that title, legal or otherwise, must be demonstrated to satisfy the

Page: 19 Court that a certificate should issue declaring the claimant to be legal and beneficial owner in fee simple of the land.

Having regard to this overall purpose, persons with an interest in these proceedings involve only those individuals whose legal interests might bear upon or affect the determination of any title issues raised in the proceeding. Obviously, this does not preclude a person from providing evidence as a witness. However, it does preclude adding as actual parties (with all the rights and obligations attached thereto) those individuals who cannot claim a legal interest which might bear upon the title issues but simply have a general interest in the outcome.

In short, interest in s. 10(2) means having a right or title to, a claim upon or a share in the land in question.

[30] Is s. 10(2) to be Supplemented by Rule 8.01? - Rule 8.01 concerns applications by parties who wish to intervene in an existing proceeding. Rule 8.01(3) directs the Court to consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the parties. Mr. Keith argues that Rule 8.01 applies to the present application in addition to s. 10(2) of the Quieting of Titles Act, such that if I determine under s. 10(2) that an applicant might have an interest that could be affected by the proceedings, I must go on to consider any delay or other prejudice the intervention would cause to Mr. Keiths client, the plaintiff.

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[31] This argument rest largely upon s. 3(3) of the Quieting of Titles Act: Except where it is expressly otherwise provided, the Judicature Act and the Civil Procedure Rules apply to such actions.

[32] I do not accept this argument. Usually Rule 8.01 applies to proceedings where only the parties and their privies are bound by the findings and the order for relief. The jurisdiction of a superior court is such that non-parties can be made subject to orders, even final orders granting relief. However, that power is used exceptionally and justice usually demands that a person either be made a party or not be bound. Put another way, a plaintiff would be hard-pressed in making an argument that a person should be bound by the judgment but refused status.

[33] The Quieting of Titles Act follows the unusual course of binding persons although they may not be parties. It implements procedures for identifying and notifying persons with possible interests so they may have the opportunity to apply to be joined under s. 10. However, absent fraud, the final order extinguishes the interests of anyone who fails to intervene and any unidentified persons who never get the opportunity to intervene.

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[34] In this light, s. 10(2) is not surprising for using the mandatory shall instead of creating a judicial discretion. These words in s. 10(2), the judge shall permit the person to intervene, contrast with the judicial discretion in Rule 8.01(1), any person may, with leave of the court, intervene in a proceeding.... In my assessment, these provisions cannot stand together. Intervention is expressly otherwise provided in s. 10 of the statute and Rule 8.01 is thusly excepted under s. 3(3) of the Quieting of Titles Act.

[35] Accordingly, the only question to be answered in determining whether an application for intervention under the Quieting of Titles Act should be allowed or disallowed is whether it is clear that the person has no interest that may be affected by the proceedings, it being understood that interest has the primary sense involving a right, title, claim or legally protected share in something.

[36] It is Clear that the Applicants Have No Legal Interest in Frank Georges Island? - There is no suggestion that any applicant has any claim to the island or any part of it under any grant. Further, the evidence of the applicants is preclusive of any claim through adverse possession because none assert any act of ownership. They and their predecessors have been visitors and are opposed to the very notion

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that anyone possessed Frank Georges Island exclusively. Furthermore, prescriptive rights of way are not a possibility. The applicants lands are separated from the island by a body of water. The only avenue for inquiry is privately enforceable, public rights in land. While maintaining the Crowns primary position that the island was never granted and the unfettered title remains in the provincial government, Mr. Cameron pointed out that the applicants may have claims as members of the amorphous public, distinct from and, indeed, contrary to the governments claim to absolute title. I have to consider whether there is a possibility of a claim that the island was dedicated to the public and the dedication was accepted by the public, or of a claim that members of the Seabright community have customary rights in respect of the island, or of a claim that the island is a local commons.

[37] The branch of property law known as dedication and acceptance developed in reference to roadways passing over private lands. If the owner dedicated the roadway to the amorphous public and the public accepted the dedication, say by many of the members of a community making use of the roadway, then a public right of way could be privately enforced. The application of this law extended beyond roadways. In Carpenter v. Smith, [1951] O.R. 241 (Co. Ct.) a beach was

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found to have been dedicated to the public. Wright v. Long Branch, [1959] S.C.R. 418 concerned the dedication of a war memorial. It is at least arguable that an island could be dedicated to the public for recreational use.

[38] According to Duff, J. as he then was, writing for the majority in Bailey v. City of Victoria (1920), 60 S.C.R. 38 at p. 53, land may be dedicated to the public if two conditions are satisfied: first, there must be on the part of the owner the actual intention to dedicate ... and second, it must appear that the intention was carried out by the [road]way being thrown open to the public and that the way has been accepted by the public. He followed (p. 55) Lord MacNaghten in Simpson v. Attorney General, [1904] A.C. 477 at p. 493: that the mere acting so as to lead persons into the supposition that a way is dedicated to the public does not in itself amount to dedication. However, it is also said that Open and unobstructed use by the public for a substantial period of time is, as a rule, the evidence from which a trier of fact may infer both dedication and acceptance. Brooke, J. A. in Gibbs v. Grand Bend, (1995), 26 O.R. (3d) 644 (OCA) at p. 680. Mr. Keith points out that public use is merely evidence going towards proof of the two conditions. So, in Attorney-General v. Esher Linoleum Co. Limited, [1901] 2 Ch. 647 at p. 650 the Court stressed that user is but the evidence to prove dedication and what always

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has to be investigated is whether the owner of the soil did or did not dedicate certain land to the use of the public. With roadways, there needs to be proof of an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as a public highway: Reed v. Lincoln (1974), 6 O.R. (2nd) 391 (CA) at p. 396.

[39] Hence, a claim by the applicants that Frank Georges Island has been dedicated to the public would involve their offering evidence of use by the public of a kind that could prove that a predecessor of the plaintiff dedicated the island for public use as a park. In my assessment, the evidence for dedication is so weak that such a claim would clearly fail.

[40] The record shows that the island was inhabited from the mid-eighteenth century until the first quarter of the last century. The men referred to in deeds are said to have been fishermen. The record indicates the island was inhabited by a fishing family who kept a substance farm and also operated a store with a wharf on the leeward side of the island. It is clear that the island ceased to be inhabited in the early twentieth century. The applicants describe two kinds of use: by recreational sailors who take protection from the sea, such as for sleeping

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overnight, and by local residents or summer visitors who use the island for recreation, such as swimming. Sailing is very common along the south and eastern shores of this province. Sailors wanting a break or an overnight rest sometimes anchor in coves or to the protected side of an island. For the most part, they are using the water, which belongs to the government, or the foreshore, which also belongs to the government. If sailors who take advantage of protection afforded to sailboats by the leeward side of an island come on shore occasionally, that can say nothing of an intention by the owner to make a public dedication of his land. Tolerating occasional visits by sailors to an uninhabited island is not the least like tolerating the public using part of ones land as a roadway. The former use is expected, the latter use is unusual. Because it is unusual, it is stuff for an inference about the owners intents. Because use by sailors of the leeward side of an island is expected, this use can offer nothing for an inference about the owners intents.

[41] Secondly, some residents of or summer visitors to the Seabright area travel by boat to the island to enjoy the many pleasures that accessible, uninhabited islands offer. On all shores of this province, uninhabited islands near populated areas frequently entertain visitors. Similarly, the uses of Frank Georges Island made by residents and summer visitors in the Seabright area are occasional visits to

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an interesting and accessible island near a populated area. Such a commonplace activity only shows that the island is uninhabited, and not that the island is being thrown open to the public. The situation is not at all like that in Gibbs v. Grand Bend, where a beach was at a public pier near the main street of a village making a well known and popular resort area (p. 681). In that case, there was evidence of the beach having been thrown open to the public. The recreational uses of Frank Georges Island described in the evidence offered by the applicants could not found an inference of dedication to the public.

[42] I am obliged to assess the evidence for dedication to the public to see if it meets the very low threshold of clear that the person has no interest as provided in s. 10(2). I am satisfied that there is clearly no case to be made for dedication to the public.

[43] In England, the essentials of a customary title are (1) immemorial existence, (2) reasonableness, (3) certainly as to terms, locality and persons and (4) continuity as of right without interruption since its immemorial establishment: Halsburys Laws of England, 4th ed. reissue, v. 12(1) (Butterworths, London, 1998) para. 406. Some doubt that customary title is a part of Canadian law: A. H. Oosterhoff and W.

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B. Rayner, Anger and Honsberger Law of Real Property, 2ed. (Canada Law Book, Aurora, 1985), p. 1006. However, in Ogilvie v. Crowell (1904), 40 N.S. R. 501 (SC), Graham E. J. entertained the possibility that people in Lawrencetown, West Chezzetcook and Porters Lake had a customary right to gather seaweed from a beach and a point owned by the plaintiff. The Equity Judge was of the opinion that seaweed could not be the subject of a custom because it was a profit a prendre and, in any case the proof fails to make out a custom in respect of the inhabitants of the districts named in the pleadings (p. 503). See also Hynes v. Hynes (1989), 79 Nfld. and P.E.I R. 86 (N.C.A.), [1989] N.J. 77.

[44] For reasons similar to those respecting dedication to the public, a customary right to use Frank Georges Island as a park would have to be found to be unreasonable. The island having been visited occasionally by sailors and local residents after it became uninhabited is so commonplace that this use clearly must have resulted by accident or indulgence, and not from any right conferred in ancient times: Halsburys,para. 409. Further, the use is clearly neither immemorial nor continuous. No Canadian court has decided what might constitute time immemorial in the Canadian context. (In England, it is the year 1189 when Richard the First became king.) However, it has to be earlier than the period to

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which the applicants refer. Frank Georges Island was inhabited under at the least a colour of title in the nineteenth century and the early twentieth century. Clearly, it was not being used as a park by the local public in those days.

[45] It is clear that a case for use of Frank Georges Island under a customary title would fail.

[46] The English law respecting commons arose out of the peculiarity of feudal arrangements and it never applied in Nova Scotia: Beamish Murdoch, Epitome of the Laws of Nova Scotia, v. 2 (Joseph Howe, Halifax, 1832), p. 62 - 63.

The right of common is a profit which a man hath in the land of another, as to feed his beasts, to catch fish, to dig turf, to cut wood or the like. These rights forming an extensive head of English law, arise chiefly from the custom of manors or other prescriptive rights in the old country. But none such exist here, yet we have commons regulated by Provincial Statute, none of which appear to come within this definition, as the persons entitled to the use of these commons are in some cases also owners of the soil of the common under grant from the crown, or the common has been granted by the crown to some trustees or corporation for the benefit of the inhabitants of some township, who are entitled as well to the property of the soil as to the use of it under such grants.... But common may in this country be created by deed as an incorporeal hereditament, as one man may grant such rights in his lands to a number of others, and in that case the rights arising to the commoners under such an instrument, would be construed by the language and intention of the deed, and not by the laws respecting commons in England, which arose out of the peculiarity of feudal arrangements.

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See also, Halsburys, v. 6, para. 501. According to Murdoch, the only commons here are those created by deed or statute. We could add dedication and acceptance in light of some decisions that use the word commons interchangeably with park: eg. Wright v. Long Branch, [1959] S.C.R. 418 at p. 423. That takes us back to my comments on dedication and acceptance.

[47] Conclusion - The applicants advanced their case for intervention on the basis that being concerned for Frank Georges Island or being affected by the way it is used would constitute a sufficient interest to give rise to status under the Quieting of Titles Act. I have decided that the word interest in s. 10(2) of that statute has its original or primary sense akin to legal interest or property interest. That did not determine the applications because Mr. Cameron raised the possibility that the evidence provided by the applicants might give rise to a case for a public right enforceable privately by the applicants. Consequently, I have discussed the laws of public dedication, customary title and commons. I have concluded that the evidence offered by the applicants, assessed in light of the abstract of title, so clearly fails to establish any possibility of public dedication or customary title that it is clear that the person has no interest that may be affected by the proceedings, the words of subsection 10(2). Further, it is clear that the English law referable to

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commons is inapplicable in Nova Scotia and Frank Georges Island could only be a commons by way of statute, deed or dedication, all of which are clearly excluded in this case. Therefore, I will dismiss all ten applications.

J.