Augustin et Al v Glace et Al

• Jurisdiction: St Lucia
• Judge: Gordon, J.A.,Lewis, C.J.
• Judgment Date: 21 June 1968
• Neutral Citation: LC 1968 CA 3
• Docket Number: Civil Appeal Nos. 3 and 4 of 1967
• Court: Court of Appeal (Saint Lucia)
• Date: 21 June 1968

West Indies Associated States Supreme Court. (Court of Appeal)

Lewis, C.J., Lewis, J.A., Gordon, J.A.

Civil Appeal Nos. 3 and 4 of 1967

Augustin et al

and

Glace et al

Appearances:

T.F. Floissac for A.E. Augustin.

D.A. McNamara for L. Boriel.

K.A.H. Foster for Gregor Glace.

Real property - Right of way — This appeal arose out of an action against the defendant for breach of rights to two reserve roadways, consequential damages and an injunction. The defendant respondent also filed a counterclaim for damages for breach of warranty. It was found that two blocks of land were separated by a road reserve. In 1972 the defendant was sold a portion of land which comprised part of the road reserve. The defendant erected a house which occupied a part of the road reserve

Held: There was injury to the plaintiff's right in the circumstances. A mandatory perpetual injunction would be granted to the effect that the defendant remove the structures which blocked the road reserve. The circumstances did not warrant substantial damages.

Gordon, J.A.

1 This appeal has arisen out of an action brought in the High Court by the appellant Augustin as plaintiff, against the defendant/respondent Boriel and the defendant/appellant Glace for breach of rights to two reserve roadways, for consequential damages, and for the grant of an injunction to restrain the defendants and their servants etc. from further interference. Glace also filed for what he called a counter claim against the defendant/respondent Boriel for damages for breach of warranty.

2 The action was heard on various bays between the 16 ^th July 1965 and the 29 ^th June 1966, and on the 13 ^th March 1967 the trial judge Bishop, J. entered judgment in the terms hereinafter mentioned.

3 It appears that this case was under consideration from the 16 ^th July 1965, when the evidence of the first witness was taken, until the 13 ^th of March 1967 when the learned judge delivered his judgment. The last witness gave his evidence on the 29 ^th March 1966. It is difficult to see how a proper assessment of evidence can be made when consideration of a case in which much depends on the die credibility of witnesses, extends over such a long period. Trial judge ought to insist on cases being heard expeditiously once the hearing has commenced and thereafter should deliver their judgments at a reasonably early date after judgment leas been reserved.

4 The terms of the judgment were as follows:

• “(a) That the first named defendant (Louis Boriel) do pay damages in the sum of Seventy-five dollars to the plaintiff

• (b) That the first named defendant (Louis Boriel) do pay the sum of Thirteen thousand dollars to the second named defendant (Gregor Glace) for the house and land;

• (c) That the second named defendant (Gregor Glace) do pay to the plaintiff the sum of four thousand five hundred dollars and the amount of four dollars a day for every day after the date of this judgment that the fowl house remains on the road reserve north of lot 70 ass long, as this road reserve remains the property of the second-named defendant (Gregor Glace);

• (d) That the second named defendant (Gregor Glace) do deliver up peaceful possession of the house and land to the first named defendant (Louis Boriel) on payment of the said sum of Thirteen thousand dollars by the first named defendant (Louis Boriel)

• (e) That the plaintiff be awarded his costs to be taxed.”

5 Both the plaintiff/appellant Augustin, and the defendant/appellant Glace have appealed against this order. The appellants have prepared two records of this matter instead of agreeing on the preparation of one complete record, as they ought to have done. This court, however at the hearing of these appeals made a consolidation order and heard the two appeals as one.

6 The facts out of which this litigation arose, are to the following effect. In December 1960 Augustin purchased 10 lots of land at Viex-Fort, St. Lucia, from J.O. Eudoxie, who in turn had on an earlier date purchased from Boriel, the owner of the whole area. Augustin subsequently purchased another lot (lot 33) from Boriel in February 1961. In these sales reference was made to a plan of the entire area prepared and completed on the 7 ^thSeptember 1946, by R.A. McNamara, Land Surveyor, and lodged with the Commissioner of Crown Lands on the 25 ^th October 1946, and referred to in evidence as plan No. 248 (exhibit B).

7 The two blocks of land are separated by a road reserve, thirty feet wide, running roughly in a north-south direction, and which together with the lots purchased are identifiable on the plan. The first block comprised lots 29, 30, 31, 32, 33 and the second block comprised lots 45, 46, 67, 68, 69 and 70. Two other road reserves each 30 ft. wide exist in the area, one running in an east-west direction, north of lot 70, the other in a north-south direction on the west of the lots 66 – 70.

8 In January 1962 Boriel sold to Glace a portion of land which comprised a part of lot 71 and a part of the road reserve which adjoined it on the south. In August, Glace began to erect a house which when completed occupied a part of the road reserve north of the appellant's lot 70. It was the furthest point 16 ft. on the road reserve tapering off to 3 ft. at its narrowest point. He also built a fowl house which was of a less permanent nature than the house, on the road reserve, and which extended up to the northern fence of Augustin's lot 70. In December 1962, on the road reserve east of lots 66 – 70 the defendant/respondent deposited several truckloads of stone which remained there for a period of three months or more – form December 1962 to March 1963 – causing an obstruction of the road reserve.

9 In the early stages of the erection of the house, the appellant Augustin spoke to Glace and professed ignorance, stating that Boriel, from whom he had purchased, had told him nothing of it. Glace proceeded with his building and completed it in November/December 1962, and by letter dated 17 ^th December 1962, which he read to Glace, Augustin asked Boriel to have all obstructions on the road reserve removed. On the 10 ^th January 1963, the appellant filed his writ.

10 On the receipt of Augustin's letter of the 17 ^th December 1962, Boriel visited the spot and on being satisfied that there had been an encroachment, interviewed Augustin with a view to resolving the difficulty. As this meeting was abortive he subsequently had a discussion with Glace when it was agreed between them that he (Boriel) would pay Glace for his house, and would give him another lot on which he could build. Unfortunately, Glace rejected the alternative lot and the whole matter ultimately ended up in court.

11 It was admitted in the pleadings by both Boriel and Glace that Augustin was entitled to a servitude in the nature of a right of way over the road reserves, and the trial was conducted and the appeals urged on that basis.

12 Boriel contended by way of defence that the acquiescence of Augustin in passively standing by and doing nothing about his right until the house was built precluded the court from making any order for an injunction.

13 Glace on his part maintained that liability for the infringement rested on Boriel who though aware of the purpose for which the land was required viz. for building purposes, nevertheless sold him a portion of the road reserve; he was therefore in breach of warranty of the title to the land sold.

14 The following grounds of appeal were argued on behalf of the plaintiff/appellant Augustin

• “(1) The learned judge erred in holding that articles 841 to 852 inclusive of the St. Lucia Code of Civil Procedure were applicable to this case.

• (2) The appellant's conduct did not amount in law to acquiescence and in view of the evidence and circumstances of this case and the judge's findings of fact, the plea of acquiescence was neither maintainable nor available in law to either defendant/respondent.

• (3) In view of the evidence and circumstances of this case and the learned judge's findings of fact, the learned judge erred in law in denying the appellant complete restoration of his right of way or servitude and an injunction in regard thereto.

• (4) In view of the evidence and circumstances of this case the learned judge's findings of fact and the learned judge's order in regard to possession of the house and land, the learned judge erred in law in awarding the damages of four thousand five hundred dollars and the continuing damages of four dollars a day against the defendant/respondent (Gregor Glace) only.

• (5) The judgment is against the weight of the evidence.”

15 And on behalf of the defendant/appellant Glace the following the grounds of appeal were urged:

• (1) That the defendant Boriel was solely responsible for the damage caused to the plaintiff.

• (2) That the judgment is unreasonable and cannot be supported with regard to the evidence.

• (3) That the learned trial judge erred in not finding that defendant/respondent Boriel changed the condition of the premises by selling the road reserve.

• (4) That the learned trial judge erred in finding that the defendant/appellant was under a duty to maintain and preserve the road reserve.

• (5) Alternatively-damages should have been apportioned between the two defendants.

• (6) The learned trial judge should have taken into account the increased valuation of the land, the date of the valuation on 13 ^th September 1963, and should have awarded interest at 6% per annum from 13 ^th September 1963.

16 It is noted that there is no appeal against the award of $75.00 damages to Augustin for the obstruction of the road reserve on which the stones were dumped and left for about three months, and that Boriel has not cross-appealed against those parts of the order which affect him.

17 At the outset of the hearing of the appeal counsel for the three parties intimated to the...