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Supreme Court of Canada

Civil law—Prescription beyond limits of title—Ten-year and thirty-year prescription—Code of Civil Procedure, art. 806.

This case concerned a motion in accordance with art. 806 C.C.P., for judicial recognition of respondent’s right of ownership based on ten-year prescription with title and good faith. Respondent occupied a parcel of land from 1961 to 1973, believing he was its owner under a contract of sale concluded with appellant. Both the Superior Court and the Court of Appeal were of the opinion that the conditions necessary for acquisitive prescription of ten years had been met, and they recognized respondent’s right of ownership.

Held: The appeal should be allowed.

The measurements indicated in the deed of sale gave a surface area less than that claimed by respondent, with the result that the latter was claiming to prescribe beyond the limits of his title. Such prescription, as to the part beyond the limits of his title, was by not ten but thirty years.

Chalifour v. Parent (1901), 31 S.C.R. 224; Croisetiere v. Gélinas, [1977] C.A. 183; Warren Ross et al. v. Côme Boisvert and Antonio Bibeau et al., [1978] C.S. 290; Dame Dubreuil v. Lepore, [1957] C.S. 293, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec upholding a judgment of the Superior Court. Appeal allowed.

Robert Eidinger, for the appellant.

Réal Collin, for the respondent.

English version of the judgment of the Court delivered by

CHOUINARD J.—This action was brought by respondent by means of a motion in accordance with art. 806 C.C.P., for judicial recognition of his

[Page 446]

right of ownership based on ten-year prescription with title and good faith.

On September 9, 1961 respondent bought from appellant a piece of land described in the deed as follows:

[TRANSLATION] A site located at Val-Morin, in the sixth range of Morin township, forming part of the lot of land appearing in the official register of the parish of Sainte‑Adèle as No. 7 (p. 7), measuring one hundred and fifty feet (150′) wide on its northeast and southwest boundaries and two hundred and twenty-five feet (225′) deep, English measure.

The northeast boundary of this land is parallel to the dividing line of lots six and seven and is one hundred and fifty feet (150′) distant from it. The southeast boundary of this land, extending to the northeast, cuts across the dividing line of lots six and seven at a point one thousand two hundred and ninety-two feet (1,292′) from the junction of the said dividing line of lots six and seven with the dividing line of ranges six and seven of Morin township. This land is bordered on the northeast by a road fifty feet (50′) wide; on the southeast by Lavoie Lake, on the southeast and northwest by other parts of the same lot seven owned by the seller.

Dubé J.A., speaking for the Court of Appeal, related the following facts which are not in dispute:

[TRANSLATION] Between 1961 and 1973 respondent, Fernand Michaud, occupied the land in question from Lavoie Lake to the “50′ road mentioned in the description”; but in 1973, appellant gave a right of way to another buyer over the parcel of land along Lavoie Lake in front of the Michaud property.

Michaud then investigated and learned that appellant had caused the lands in question to be registered and that, according to the plans of the new register, his land stopped some fifty feet away from Lavoie Lake, not on the bank of the lake as he had thought.

Fernand Michaud then brought a motion for judicial recognition of his right of ownership pursuant to art. 806 C.C.P.

The argument in the Superior Court and the Court of Appeal dealt with the fact of possession of this parcel of land by respondent and the nature of that possession.

Both courts concluded that the conditions necessary for acquisitive prescription of ten years had

[Page 447]

been met, and they recognized respondent’s right of ownership.

Dubé J.A. stated:

[TRANSLATION] After noting the requirements of art. 2193 of the Civil Code, the trial judge concluded that respondent’s possession had the characteristics required for prescription, namely that it was “continuous and uninterrupted, peaceable, public, unequivocal, and as proprietor”.

He also clearly concluded that this possession had lasted more than ten (10) years with translatory title (art. 2251 C.C.).

I think it is clear from the evidence in the record that the respondent has fully complied with the conditions necessary for him to benefit from the ten-year prescription, if his testimony is accepted as true and preferred to appellant’s testimony: this is precisely what the trial judge held, and appellant was not able on appeal to show any manifest error in this conclusion on the facts, which the trial judge was in the best position to make.

In this Court, however, appellant put forward the argument that the ten-year prescription does not assist respondent’s case, as the argument of the latter involves claiming to prescribe beyond the limits of his title. Thus, the measurements of one hundred and fifty feet (150′) by two hundred and twenty-five feet (225′) indicated in the deed give a surface area of thirty‑three thousand seven hundred and fifty square feet (33,750 square feet), whereas respondent is claiming an area of forty-five thousand eight hundred and thirty square feet (45,830 square feet) or an additional area of twelve thousand and eighty square feet (12,080 square feet).

Appellant wrote in his factum:

[TRANSLATION] Respondent is claiming a greater area than is given to him by his title: he lacked a title for the excess portion, namely the parcel of land at issue, and could only rely on the legal prescription, that is by thirty years, as to this excess.

In my opinion appellant is correct, and if respondent is entitled to the ownership of all of the piece of land between Lavoie Lake and the 50′ Road, as to which I express no opinion, it cannot be as a result of the ten-year prescription which is the sole basis of his action.

[Page 448]

Mignault, in his treatise Le droit civil canadien, vol. 9, at p. 499, wrote:

[TRANSLATION] I have already said that possession must be in accordance with title. If the possessor has possessed a larger area than his title gives him, he will have no title for the excess portion, and cannot rely on the ten-year prescription as to that portion.

Rodys, Traité de droit civil du Québec, vol. 15, wrote at p. 126:

[TRANSLATION]The holder possesses without title anything that is beyond the limits of the title;

…it is the legal prescription that will be applied to anything beyond the limits of the title (as for example, a larger piece of land), and this is the logical consequence of the general principles: the ten-year prescription is only an exception to the rule, a benefit conferred by the law on persons holding in good faith with translatory title; it is of necessity limited by the extent of the title. This rule has been consistently followed in our courts.

This principle was affirmed by this Court in Chalifour v. Parent[1] in which Taschereau J. wrote for the majority, at p. 231:

[TRANSLATION] There can be, appellant contends, prescription beyond the limits of a title. This is true. The buyer of a specific piece of land may prescribe ownership of a larger area than that conveyed to him by his title: but not by the ten-year prescription. He can only prescribe by thirty years the part not included in his title, the part beyond the limits of his title.

See also: Croisetière v. Gélinas[2]; Warren Ross et al. v. Côme Boisvert and Antonio Bibeau et al.[3]; Dame Dubreuil v. Lepore[4].

The appeal should be allowed, the judgments of the Court of Appeal and of the Superior Court set aside and the motion of the respondent dismissed with costs throughout.

Appeal allowed with costs.

Solicitors for the appellant: Blanshay, Blanshay, Charbonneau & Eidinger, Montreal.

Solicitors for the respondent: Godard, Bélisle, Collin & Bertrand, Ste-Agathe-des-Monts.

 



[1] (1901), 31 S.C.R. 224.

[2] [1977] C.A. 183.

[3] [1978] C.S. 290.

[4] [1957] C.S. 293.

 

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