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ST VINCENT AND THE GRENADINES
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO.172 OF 1996
BETWEEN:
HENRY WILLIAMS
Plaintiff
and
ELAINE DA BREO
BASIL CORNWELL
NORMA CORNWELL
Defendants
Appearances:
Graham Bollers for the Plaintiff
Moet Malcolm for the Defendants
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2000: September, 28, October 25
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JUDGMENT
[1] MITCHELL, J: This was a land dispute involving the existence of an alleged 8 ft
right of way.
[2] By a statement of claim endorsed on a writ issued on 14 May 1996 the Plaintiff
claimed that he was in possession of a lot of land consisting of 7,000 sq ft by virtue
of a deed of gift dated 5th August 1987 registered as No 2318 of 1987; the 1st
Defendant’s property was separated from that of the Plaintiff by an 8 ft road; there
had always been an 8 ft wide right of way separating the two properties; in or
about the year 1991 the Defendants had unlawfully constructed a concrete wall
within the 8 ft road obstructing the Plaintiff. The Plaintiff claimed a mandatory
injunction ordering the Defendants to remove the wall; a further injunction
restraining them from erecting a wall obstructing the Plaintiff; damages; further
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relief; and costs. By a defence filed late by consent, the 2nd and 3rd Defendants
claimed that the wall had been built about 12 years previously; that the right of
way was a track; that the Plaintiff had never complained when the wall was built
some time in the 1980s; and that the wall was built on land owned by the 3rd
Defendant’s son. By a reply to the defence of the 2nd and 3rd Defendants, the
Plaintiff says that the wall was erected in the road and not on land owned by the
son of the 3rd defendant; and further that it had been erected in 1991 and not in
the 1980s as alleged in the defence.
[3] At the commencement of the trial both counsel addressed the court to the effect
that there was only one issue in the case, and that was whether or not the right of
way was a track or foot path or an 8ft road. The trial was by consent restricted to
evidence on this issue. Counsel for the Plaintiff stated that he had only two
witnesses, the Plaintiff and the 1st Defendant. Counsel for the 2nd and 3rd
Defendants asked for an adjournment so that the 1st Defendant who was the
sister of the 2nd Defendant could get counsel. The court did not accede to the
request for an adjournment, particularly as it did not appear that the 1st Defendant
was the one requesting the adjournment. Counsel for the 2nd and 3rd Defendants
was assured that if the 1st Defendant gave evidence for the Plaintiff, he would be
permitted to crossexamine her.
[4] The Plaintiff gave evidence on his own behalf and he called the 1st Defendant to
give evidence on his behalf. The 2nd and 3rd Defendants are husband and wife.
They gave evidence on their behalf and called no witnesses. The only exhibits put
in evidence were the 1976 deed of the 1st Defendant, the 1976 deed of Martha
Williams, the mother and predecessor in title of the Plaintiff, and the 1987 deed of
the Plaintiff. The court visited the locus in quo, and the various features of the
road in dispute were pointed out by the parties to the court. The facts as I find
them are as follows. All the land of the parties was originally owned by the
Plaintiff’s great grandmother and the 1st Defendant’s grandmother, Louisa Dallas.
Louisa Dallas died in the year 1933. The estate of Louisa Dallas was
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administered by Martha Williams the mother of the Plaintiff and the sister of the 1st
and 2nd Defendants some time after she obtained the Grant of Letters of
Administration in the year 1974, as recited in the deeds of 1976. The Plaintiff is 58
years old and was born on the land. The 2nd Defendant is 80 years old and he
also was born on the land. The access road to the home of the Plaintiff runs
alongside the house of the 1st Defendant. The house of the Plaintiff and of the
2nd Defendant are constructed on the top of a ridge adjacent to each other, that of
the Plaintiff being further along the ridge, so that the Plaintiff and his visitors have
to pass alongside the house of the 2nd Defendant. The land of the 1st Defendant
lies between the government road and the land of the 2nd Defendant. The access
to the 2nd Defendant’s house and the Plaintiff’s house runs over the property of
the 1st Defendant. The access runs along the very top of the ridge, the Plaintiff’s
house is at the end of the access and below the top of the ridge where the access
is.
[5] The house of the 2nd Defendant was built very close to the access to the Plaintiff.
What the 2nd Defendant has done is to build a low wall, only about 15 feet long
and 2 feet high with a hedge on the inside to provide some small amount of
privacy. This low wall runs parallel to the building and about 10 feet distance from
it. There is a drop of a foot or two to the house of the 2nd Defendant from the
access to the Plaintiff which access runs along the highest part of the ridge. The
wall serves two purposes; first, it ensures that anyone accessing the property of
the Plaintiff must keep as far as the topography of the ridge will allow from the
building of the 2nd Defendant; second, the low wall provides protection to the
property of the 2nd Defendant by ensuring there will be no erosion from the use of
the access and the heavy rainfall that must fall annually on the top of the mountain
ridge. The question is, did he build the wall along his boundary as he claims, or
did he seek to push users of the access as far as he could away from his home
and restrict them to passing on foot instead of being able to approach the
Plaintiff’s home by vehicle, wrongfully reducing the right of way from its previous 8
ft to about 2 ft, as the Plaintiff claims. The answer to the question before the court
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as to the dimensions of the disputed access to is best sought in the various deeds
that the Administratrix gave to the parties. There would, thus, be no need for the
court to try to distinguish between and prefer one side of the two conflicting
recollections and memories of these related parties and neighbours.
[6] The Administratrix administered the estate in 1974, as we have seen. The Plaintiff
says the partition of the lands took place long before the deeds, during the 1960s.
That may well be true, as both parties have lived on their share of the family land
since at least that time. The Plaintiff built his first house on his land in the 1960s,
and his present concrete house in about the year 1987. The 2nd Defendant
occupied the house of his grandmother, Louisa Dallas, after her death in 1933 and
eventually replaced the original wooden building with his new concrete house in
about the year 1991. As part of the process of administration, the Administratrix
had had the land surveyed. Various steel pins were put down by the surveyor.
They are still there on the land. There is a dirt road approximately 8-10 ft wide
approaching the property of the two parties from where the tarmacked government
road ends. That dirt road is about 50-60 ft long. Where it continues alongside the
wall built by the 2nd Defendant in 1991, the width is reduced to the 2-3 ft about
which the Plaintiff complains. There is no doubting that when the Plaintiff was
building his present concrete house the road was 8 feet wide, the 2nd and 3rd
Defendants do not deny that trucks were able to drive on it to deliver building
material; they merely claim that the access was 4 feet wide and the trucks passed
there with their permission.
[7] What do the deeds say? The deed of the 1st Defendant describes the eastern
boundary of her portion of the land of her grandmother as an “8 feet road.” The
1st Defendant testified, and she was not challenged on this, that the land referred
to in her deed includes the land occupied by the 2nd Defendant. The deed of the
1st Defendant is for the land on which the wall in dispute has been built. The deed
of Martha Williams for her share of the family lands in the estate she was
administering, mentions an 8 foot road as the western boundary. No plans are
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attached to any of the deeds. I am satisfied that the 8 foot road mentioned in
these 2 deeds is the 8 foot road in dispute. The Administratrix was vested with the
legal right to set the boundaries and to provide for access when she was dividing
up the estate. I am satisfied from the deeds that the road in dispute was as the
Plaintiff described, an 8 foot road. The 2nd Defendant has, in an effort to improve
the privacy and other amenities of his premises, wrongfully constricted the access
road of the Plaintiff where it runs past his house to a width of some 2-3 feet. The
Plaintiff is entitled to the reliefs he seeks.
[8] The Plaintiff is granted the mandatory injunction he seeks ordering the 2nd and
3rd Defendants to remove the wall and the hedge erected by them in the right of
way of the Plaintiff. They are entitled to a reasonable time to make the necessary
arrangements to remove the wall and hedge and to reconstruct the wall and
replant the hedge if they wish, ensuring that they leave out a road of 8 feet in width
for the use of the Plaintiff. If they do not remove the obstruction, the Plaintiff is
entitled to remove it for them and they will be liable to him for the cost of removing
it, to be assessed if not agreed. The Plaintiff is entitled to general damages for the
obstruction over the past 9 years and for the inconvenience that he must have
suffered. No sum has been suggested, and I set damages at the nominal sum of
$1,000.00. The Plaintiff is also entitled to his costs to be taxed if not agreed.
I D MITCHELL, QC
High Court Judge