Augustin v Boriel and Glace
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 13 March 1967 |
| Neutral Citation | LC 1967 HC 4 |
| Date | 13 March 1967 |
| Court | High Court (Saint Lucia) |
| Docket Number | No. 1 of 1963 |
High Court
Bishop, J.
No. 1 of 1963
V. A. Cooper for the plaintiff
D. A. Mc Namara for defendant No. 1
K. A. H. Foster for defendant No. 2
Real property - Right of way
Alfred Elwin Augustin, a barrister at law of Vieux-Fort in this Island, hereinafter called the plaintiff, filed a declaration on 9th January, 1963 in which he claimed that he “is and was at all material times entitled to the use and enjoyment of a road reserve adjoining his lands at Vieux-Fort in the Island of Saint Lucia….”
Further, from the declaration it was indicated that this land and road reserve or right of way were illustrated on a plan of survey, the land being shown as lots and numbered 66 to 70 inclusive.
The main allegations of the plaintiff are to be found in paragraphs 3 to 6 inclusive which read thus:
“3. In the month of December 1962, defendant No. 2 erected a fowl house and other structures on the said road reserve facing the plaintiff's lot No. 70.
4. In December 1962 defendant No. 1 dumped several truck loads of boulders on another portion of the said road reserve, namely on the eastern side of the plaintiff's lots numbered 66 to 70 on the said plan, thus obstructing access to an exit from the said lots and depriving the plaintiff of the use of the said road reserve.
5. By reason of the aforesaid obstructions the plaintiff's property has been considerably reduced in value and the plaintiff has thereby suffered financial loss
6. On December 17th, 1962 the plaintiff drew the attention of the defendants to the disturbance of his servitude and requested that all obstacles to the free use and enjoyment of the aforesaid road reserve be removed by the end of December, 1962. The defendants have failed to comply with the plaintiff's demand whereby the plaintiff has suffered damage.”
He has also claimed:
“(i) An injunction to restrain the defendants whether by themselves or their servants or agents or otherwise from preventing or obstructing the use of the said road reserve by the plaintiff his servants, agents, licensees or assignees;
(ii) Restoration of the said road to the condition in which it was at the time of the plaintiff's purchase;
(iii) $15,000 damages;
(iv) The costs hereof;
(v) Further or other relief.”
This matter endured and survived a history of changes — changes of solicitors, changes of defences, and indeed when hearing was almost completed, changes in the declaration. No doubt these changes were aimed at clarifying the issues. It would be of little assistance for me to deal in this judgment at length with the history of the record. I shall only refer to it when it is necessary or relevant to the decision.
The defence of Louis Boriel, also referred to as the first-named defendant, insofar as the allegations affected him, amounted to an admission of paragraph 4 of the declaration. However, this defendant contended that there was only a temporary obstruction.
The first-named defendant also admitted paragraph 6 of the declaration, that this obstruction was brought to his notice; but he stated that the complaint was made after building operations were complete notwithstanding the earlier knowledge of the plaintiff.
The first-named defendant in his defence also claimed:
“6. The defendant No. 1 will contend that the plaintiff never complained of the said structure on the said road reserve facing Lot No. 70 until the buildings were complete although the plaintiff had inspected the building in the early stages of its erection.
7. The defendant No. 1 will rely (in addition and without prejudice to all other defence) on the acquiescence, laches and delay of the plaintiff and will contend that in any event in the circumstances no injunction or mandatory order ought to be granted to the plaintiff.”
Gregor Glace, the second-named defendant in this action, filed a defence in which he admitted erecting a fowl house and other structures on the land facing the plaintiff's Lot 70; but, according to his defence, he regarded it as his land because of an agreement made between himself and the first-named defendant on or about January, 1962 in consequence of which he was given possession of the land.
Paragraphs 7, 8 and 9 inclusive of the defence of the second-named defendant stated: –
“7. Thereupon, the first-named defendant and the second-named defendant both agreed that the first-named defendant would compensate the second-named defendant, in accordance with the results of valuation report given by a common assessor.
8. The common assessor valued the said house at seventeen thousand dollars.
9. The first-named defendant refused to pay to the second-named defendant, the said sum agreed upon and further refused and still refuses to remedy the situation which has caused irreparable and substantial damage to the plaintiff and the second-named defendant.”
In the course of the hearing, counsel for defendant Glace sought leave to amend the sum of money mentioned in paragraph 8 to read Thirteen thousand dollars instead of Seventeen thousand dollars. This application was granted in a written decision.
The second-named defendant also filed a counter-claim which alleged: –
“(1) The second-named defendant further contends that the first-named defendant is in breach of warranty of title of the second-named defendant, and did further by his representations to the second-named defendant, sell to him that which the fist-named defendant had no right to sell, for which, as a further item of damage, the second-named defendant counterclaims specifically against the first-named defendant for exemplary damages in the sum of Thirty thousand dollars.
(2) The second-named defendant, in furtherance of the findings of the said common assessor, claims from the first-named defendant the sum of Seventeen thousand dollars.
(3) The second-named defendant denies any other allegations not herein admitted.”
The figure in paragraph 2 above was also amended at the same time as that in the defence.
Paragraph 3 of the counterclaim was, in my view irrelevant (and therefore unnecessary) in a counterclaim and I have not considered it further.
At the conclusion of the evidence, counsel for the plaintiff sought leave of the Court to amend his declaration so as to include another paragraph. There was no objection and leave was granted to include the following paragraph:
“7. The plaintiff states that subsequent to the filling of the pleas in this action he has suffered additional and special damage to the extent of of Seven thousand, five hundred dollars due to the fact that an agreement by a prospective purchaser to buy a portion of the plaintiff's land abutting on the said road reserve to the North of the plaintiff's lot No. 70 was cancelled in April 1963 because of the continued evidence of the obstruction referred to in paragraph 3 of the plaintiff's declaration. Notice of the aforesaid agreement was given to the defendants in January 1963.”
In support of the allegations set out in the amended declaration the Court heard evidence on oath from the plaintiff and two witnesses — Gerald Guard, a land surveyor, Evesta Clairmonte, a cinema operator of Vieux-Fort.
The plaintiff testified that in December 1960 he bought some land in Vieux-Fort in this island from a Mr. J. O. Eudoxie. He produced a deed of sale (Exhibit D) in support of this statement. This land was made up of two blocks or areas. One block or area consisted of six lots and the other block or area comprised four lots. They were shown on a plan of survey dated 24th September, 1946 and produced as an exhibit in this case (Exhibit B). The plan numbered 248 was lodged with the Lands and Survey Department, in Castries in this island on the 22nd day of October 1946. The six lots were illustrated on the plan as those numbered 45, 66, 67, 68, 69 and 70, and the four lots were shown on the same plan as those numbered 29, 30, 31 and 32.
The plaintiff explained that Mr. Eudoxie had bought the block of six lots from the Boreil brothers — Louis Boreil (the first-named defendant), Joseph Boreil, and Peter Boreil — and in support of this statement a deed of sale (Exhibit C in the case) was produced.
Lot numbered 70 on the plan of survey — a lot which featured prominently in this case was separated from lot 71 at its northern limit by a road reserve thirty feet wide; on its eastern and western sides, it was bounded by road reserves thirty feet wide, and south of the lot it was bounded by another lot numbered 69.
According to the plaintiff, when he purchased the block of six lots from Mr. Eudoxie, they were pointed out to him at the site; there he saw “an additional portion of land enclosed by a fence erected around the land abutting the six lots….” There was a discussion between Mr. Eudoxie, defendant Boreil and himself, and the defendant agreed to extend to the plaintiff, who accepted, the option of purchasing the enclosed extra land at fifty cents per square foot. The plaintiff alleged that the deed of sale for this portion of land was completed around the month of January, 1962.
Around July 1962, as stated in evidence by the plaintiff, the defendant Boreil informed him that he proposed closing the road reserve on the eastern side of the lots numbered 66 to 70 inclusive, because by doing this he would then have additional land available for selling. The plaintiff said that he expressed doubts about the defendant's right to do so after selling the lots 66, 67, 68, 69 and 70, and giving the road reserve as a boundary; further, he expressed disapproval of of the proposal and advised the defendant in the following words: “I already have a right to use this road and I am not going to pay to use a right which I already have; you had better consult a lawyer about...
To continue reading
Request your trial