Dolor v Lee

• Jurisdiction: St Lucia
• Judge: Peterkin J.A
• Judgment Date: 01 January 1976
• Neutral Citation: LC 1976 CA 1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: Magisterial Civil Appeal No. 2/1975
• Date: 01 January 1976

Court of Appeal

Maurice, C.J.

St. Bernard, J.A.

Peterkin, J.A.

Magisterial Civil Appeal No. 2/1975

Dolor

and

Lee

S. McNamara for the appellant.

H. Giraudy for the respondent.

Real property - Co-ownership — Land never partitioned — Appellant erected fence on portion — Finding of magistrate that an undivided owner in possession under a deed of sale and a survey could not maintain an action for trespass against an adjoining co-owner.

Peterkin J.A

1 This is an appeal against the decision of the learned magistrate dismissing a claim brought by the appellant against the respondent for $200.00 damages for trespass.

2 The facts and circumstances are not seriously in dispute and may be stated in short compass. In the year 1966 the appellant purchased from the respondent's mother her undivided share in a portion of land situate at Lanse Road in the quarter of Castries, which she owned jointly with the respondent and others. It is common ground that the land has never been partitioned. The appellant then proceeded to have a survey made of an undivided portion of the land, and to erect a fence of concrete and galvanise between that portion and another portion of the land occupied by the respondent. Again, it is common ground that the appellant did not get the consent of the other co-owners to erect the fence. In his own words, he put up the fence “to keep out others and ensure my own privacy.” The magistrate in his reasons for decision has stated as follows:

“As the evidence indicates the defendant declared his objections to the fence in no uncertain terms from the time it was put up. All the evidence indicates that defendant did not consent.”

3 The appellant has alleged that the respondent intentionally dumped heavy material and earth against the fence causing it to be forced out of its proper place and to be damaged to the extent of approximately $200.

4 At the close of the appellant's case before the magistrate counsel for the respondent elected to call no evidence, and admitted that the appellant's claim should be dismissed. After hearing argument from both sides the magistrate dismissed the claim.

5 The reason given for the appeal is that the learned magistrate erred in law in holding that an undivided owner in possession under a deed of sale and a survey could not maintain an action for trespass against an adjoining co-owner.

6 Counsel for the appellant has stated that he could find no...