Majority
admissible against Tass if it could have been established that it was irrelevant to the pending charge against Ford. TAsS
Judgment of the Court
J.-This is an appeal from the judgment of the Supreme Court of Nova Scotia in banco, dated 12th January, 1946, dismissing an appeal from the judgment at trial in favour of the respondent in an action brought against the appellant, and others, for possession of certain lands in the town of Yarmouth on which there is a railway siding. In defence of the action the appellant relies upon the Statute of Limitations.
The paper title is admittedly in the respondent by virtue of a grant made in 1930. By an indenture of the 1st March, 1918, the respondent's predecessors in title (the Bakers) demised and leased to the appellant for the term of one year at a rental of $5.00
The rent was paid on the 12th April, 1918, but no subsequent rent was ever paid. Some 140 feet only of this siding is the subject matter in dispute.
The learned trial judge found that by 1918 the siding had been kept in shape primarily for the purpose of enabling cars to be unloaded at the Baker's coal and wood sheds
RY. Co. and that it continued so to be used. The trial judge also found:
RW. Co. I am of the opinion that from 1911 to the date of the lease only cars for the Bakers had been placed on the siding. Under the terms of the Kellock J. lease the Railway could place cars there for third parties to unload, paying one dollar per year to the Bakers for such privilege and could also place on it cars carrying freight and material belonging to the Railway without payment of an unloading charge. There is no evidence that the Railway Company placed cars there for its own use during the one year term or at any time since.
There was also some evidence that from time to time the appellant placed a car on the siding for the convenience of a man by the name of Allen. This was done most infrequently and was found by the trial judge to be a permissive occupation and not a continuous using as of right. These findings of the trial judge were affirmed by the full court. Appellant takes the position that it is unnecessary to decide whether the indenture of 1918 is a lease or a licence. Appellant says that on the expiration of the term provided for by the document appellant became a trespasser upon the lands, but that by reason of the terms of the indenture the exclusive right of occupation of the land upon which the siding was situate was vested in appellant during the one year term with the result that, to quote the factum: respondent's predecessors in title could not have occupied or used the land on which the siding is situate for agricultural, building or other purposes which would have interfered with the free and uninterrupted operation of trains by the appellant.
Counsel contends that because the use of the siding by both parties has remained the same since the expiration of the term, the title of the respondent has become extinguished by reason of the operation of the Statute of Limitations.
In Lord Advocate v. Lord Lovat (1) the following from the judgment of Lord O'Hagan is cited with approval by Lord Macnaghten in Johnston v. O'Neill (2):
As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and (1) (1880) 5 App. Cas. 273, at 288.
S.C.R.]
A.C. at