Daniel v Boriel

• Jurisdiction: St Lucia
• Judge: Bishop, J.
• Judgment Date: 25 October 1966
• Neutral Citation: LC 1966 HC 1
• Court: High Court (Saint Lucia)
• Docket Number: No. 80 of 1961
• Date: 25 October 1966

Supreme Court of the Windward and Leeward Islands.

Bishop, J.

No. 80 of 1961

Daniel

and

Boriel

Appearances:

Mr. Henry E. Giraudy for the plaintiff

Mr. Desmond A. McNamara for the defendants

Real property - Trespass to land

Facts: The plaintiff sought a declaration that the defendants committed acts of trespass and conversion on his lands. The issue was whether the defendants committed a trespass on the plaintiff's lands. The court accepted evidence given on behalf of the plaintiff.

Held: The defendants committed a trespass. Judgment given for the plaintiff in the sum of $1062.50 as special damages; $862.50 as general damages and $170.00 aggravated damages.

Bishop, J.

1 Darius Daniel a planter of Desruisseaux in the Quarter of Micoud in this Island, and the plaintiff in this action, has claimed in a declaration filed on the twelfth day of October 1961, that during the month of December 1959 and the months of January and February 1960, Louis Boriel, Elton St. Hilaire, Widow Henry Edwards and Grafton Marshall, the defendants in this action, committed acts of trespass and conversion on his lands at Cannelles Estate in the Quarter of Micoud in this Island. Indeed, it is the plaintiff's allegation that defendants Elton St. Hilaire, Widow Henry Edwards, and Grafton Marshall, acting on instructions from defendant Louis Boriel entered upon three acres of his lands at Cannelles and felled timber trees, which they converted to their own use; and, consequently he has suffered loss and damage.

2 An amended defence was filed on the 19 ^th May 1966, from which it is clear that the defendant Louis Boriel admitted that he gave directions upon which the other defendants acted and occupied lands owned by the plaintiff. Also, the defendants Elton St. Hilaire, Widow Henry Edwards, and Grafton Marshall admitted that at the periods stated in the declaration, they trespassed upon the lands of the plaintiff; they contended that it was as a result of authorisation given to them that they “inadvertently trespassed on the lands of the plaintiff…” Further, it is the contention of the defendants that the area of the plaintiff's land upon which they entered and did work felling trees, clearing bush and stumps by cutlass and by burning, and then planting cassava, was one and a half acres and NOT three acres as alleged.

3 From an analysis of the pleadings, and a consideration of the evidence as a whole, and from the arguments urged by counsel on behalf of the parties to the action, it is clear that there are really two aspects of the case upon which this Court is asked to adjudicate. Firstly, what acreage of land at Cannelles estate is involved; or in other words, was the trespass carried out on three acres as claimed by the plaintiff, or was its on one acres and a half acres as alleged by the defendants? Secondly what is the loss or damage suffered as a result of the actions of the defendants?

4 The evidence in support of the plaintiff's declaration that it was three acres on which the defendants trespassed, is contained in the testimony of the plaintiff and that of the witness Ralph Giraudy. The plaintiff stated on oath that he is owner of more than fifty acres of land at Cannelles, and that this area adjoins land owned by the defendant Louis Boriel; further, that these areas are separated from each other by a canal on the south-western boundary, and that on his side of this boundary there is a reserve. The plaintiff was emphatic that the canal could be seen clearly. He alleged that there was an encroachment by the defendants on a total of about five acres, although the actual felling of trees occurred over three acres of the land. I have been unable to find any sufficient reason or support for this opinion that it was five acres — an additional two acres to that alleged in his declaration. The plaintiff alleged (and the defendants agreed) that the defendants planted cassava on this land. The plaintiff produced two plans as exhibits in the case. Perusal of these plans satisfied me that in the case of the survey which was done in April 1915 -Exhibit A — a canal existed then, at the south-western part of the land, as one oft he boundaries; and a reserve of twenty-five links along the canal on its northern side, was also present; in the case of the survey done in July 1962–Exhibit B — there existed at the south-western part of the same land a reserve along the boundary line and immediately south of this reserve there was a canal.

5 Cross-examination of the plaintiff on the area of encroachment was mainly aimed at proving that the plaintiff could not be sure of the acreage because it was not measured; and further, that the plaintiff was not sure of the boundaries of his lands at Cannelles and so he ordered a survey in 1962 to determine where the trespass occurred.

6 Ralph Giraudy, the witness, testified that he has been a planter for about forty-six years, that he is currently, owner of five estates totalling about one thousand five hundred acres of land, and that for eight years now he has been performing the function, of land assessor on behalf of several Banks in the island of St. Lucia including that of the St. Lucia Co-operative Bank. This witness said on oath, “I know the canal which divides the plaintiff's land from Boriel's lands”, and he explained that on the seventeenth day of August 1961 (that is, prior to the date of filing of the declaration) he went to Cannelles to lands belonging to the plaintiff and there he saw approximately three acres of land planted in cassava. He said, “I saw where the land that the cassava was on had been burnt…;” and “I saw burnt stubs in the area where; the cassava was planted”. He expressed the opinion that it would be incorrect to say that the area, which was burnt was only one and a half acres. This witness was not cross-examined to any degree on the acreage of land involved; and indeed it was only after there was no re-examination and after a question from the Court, that with leave, counsel for the defendants as to which the witness replied, “Yes, I came; to the conclusion that the entire three acres of land had been burnt”.

7 What about; the evidence in defence of this allegation? Two defendants — Louis Boriel and Elton St. Hilaire — and a witness — Kenneth Kerr – gave evidence on oath. The defendant Louis Boriel stated that he has been a planter for fifteen years and owner of one thousand one hundred acres of land in the Cannelles estate vicinity. He explained in his evidence-in-chief that he authorised the other defendants to enter upon and use lands “ in the vicinity of the plaintiff's boundary and mine” for the purpose of planting cassava; further, that it was about a year after this authorisation that the plaintiff complained, but notwithstanding discussions, their disagreement remained unresolved. This defendant agreed that the other defendants crossed into the plaintiff's land. In my view, it is worthy of mention that this defendant also said in his evidence-in chief, “I did not subsequently go and see the area. I did not know where the boundary was. My deed of sale does not state that a canal is one of my boundaries”. This defendant did not produce any exhibits but he gave evidence that he first knew of his boundaries after the survey done in 1962 at the instance of the plaintiff. (There was a deed of sale, produced exhibit — Exhibit “C” — by the plaintiff, perusal of which shows reference to the canal). It is also the...