IN THE SUPREME COURT OF NOVA SCOTIA

Citation: Frank Georges Island Investments v. Nova Scotia (Attorney General), 2004 NSSC136

Date: 2004 07 08Docket: S.H. 211959

Registry: Halifax Between:

Frank Georges Island Investments

Plaintiffv.

The Attorney General of Nova Scotia, representing Her Majesty the Queen in the Right of the Province of Nova Scotia

Defendant

DECISION

Judge: The Honourable Justice Gerald R. P. Moir

Date Heard: 4 May 2004, written submissions received until 31 May 2004

Counsel and John A. Keith, Counsel for the PlaintiffSpokesperson:

Alexander Cameron, Counsel for the Defendant

Richard Hattin in speaking for the applicants Dinah Grace,Robert Jones, Patricia Lindley, Alex Rettie, Edward Rettie,Clayton Coveyduck, Peter Stout, Lonsdale Holland, PatriciaWebb and Joan McGee

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Moir, J.:

[1] Introduction - Ten individuals seek to be joined as defendants in this

quieting of titles action. The plaintiff opposes intervention. Most often in quieting

of titles actions, the provincial government is a neutral, though not merely nominal,

defendant. In this case, however, the government asserts title. It also supports the

applications of the ten individuals to intervene. I must allow such applications

“unless it is clear that the person has no interest that may be affected by the

proceedings”: Quieting of Titles Act, RSNS 1989, c. 382, s. 10(2).

[2] Proceedings - Frank Georges Island Investments Limited claims a certificate

of title to a sixty acre island in St. Margaret’s Bay named Frank Georges Island.

The statement of claim asserts title deriving from a 1756 grant from Governor

Lawrence to a member of his Executive Council, John Rous. Alternatively, the

plaintiff claims ownership through its adverse possession since a conveyance in

1999 and through the acts of possession of parties to previous conveyances alleged

to be in the plaintiff’s line.

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[3] As the statute requires, the provincial government is the sole initial

defendant. The Crown chose to defend. It alleges that the island was never

granted. It also says that trespasses over the centuries have been occasional and do

not support a finding of adverse possession. The defence includes in paragraph 13:

The Attorney General says that from time out of mind the Island has beenregarded as, and used by the public as a “pleasure island” and has been freelytrespassed upon by members of the public who have used the Island in a mannerconsistent with public enjoyment of Crown lands generally and in a manner notinconsistent with Crown ownership of the Island, but inconsistent with anyasserted private ownership of the Island.

A similar allegation is made by the ten private parties who seek to intervene and be

joined as defendants.

[4] Section 10 of the statute provides for intervention by private persons.

Justice Cacchione ordered newspaper advertisements giving the public notice of

the plaintiff’s claim. Nearly four dozen people filed statements indicating they

wished to be added as defendants. However, after Justice LeBlanc ordered these to

file affidavits and to appear at a specified time to apply to be joined, the number

reduced to nine. I heard the nine applications and I granted leave for a tenth

applicant to make his application on testimony rather than affidavit.

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[5] The plaintiff opposed the applications. The Crown supported them. None

of the applicants have counsel. Mr. Richard Hattin was permitted to speak on their

behalf and I found his participation to be helpful.

[6] Evidence from Recent Times - As I said, I was provided with nine affidavits

and I allowed a tenth application on testimony. There was some cross-

examination.

[7] Ms. Dinah Grace’s home property is the southern most point of a peninsula

that extends out into St. Margaret’s Bay at the Village of Seabright towards the

head of the Bay on the east side. Ms. Grace bought this property in 1973. Her

view of the Bay to the south is dominated by Frank Georges Island. She swore “I

have walked this island end to end, paddled around it, sailed to it, camped on it,

and plain watched over it for thirty years.” No one lived on the island during these

thirty years. However, Ms. Grace’s family and guests have used it for recreation,

as have youth groups and other community organizations.

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[8] Among Ms. Grace’s neighbours on the side of the peninsula with a view of

Frank Georges Island are Robert Jones, Patricia Lindley, Alex Rettie, Edward

Rettie, and Clayton Coveyduck, who seek to be joined as defendants.

[9] Robert Jones swore an affidavit. He says he bought his property forty-five

years ago and has used Frank Georges Island since he was seventeen. He travelled

there in his skiff and he enjoyed the island. He observed the wildlife, including a

rookery of blue herons. Between 1970 and 1985 Mr. Jones frequently took his two

children to Frank Georges Island. Permission was never sought and no one seemed

to lay claim to the island. Mr. Jones made reference in his affidavit to a fishing

shack and an aquaculture operation on the island from 1990 until about 1996. Mr.

Jones was not in court and available for cross-examination. The plaintiff was

content to produce an order of this Court granted to Frank Georges Island

Investments Limited on consent of Ocean Farmers Limited, by which the latter was

evicted from the island as an over-holding tenant.

[10] Ms. Patricia Lindley and her husband bought land on the peninsula in 1984

and finished building their home there in 1986. Her two sons were very young

then and, as they were growing up, the family visited Frank Georges Island by boat

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or kayak to swim, collect shells and explore the beaches and woods. Every

summer, sailors took shelter on the northeast side of island facing the peninsula. In

some winters, the family observed seals with pups on the opposite side of the

island. Permission was not sought and no one attempted to exercise control. Ms.

Lindley’s affidavit closes with a statement expressing her interest in this action:

I am extremely concerned that what Mr. Viehbeck [a principal of the plaintiff]intends to do on the island is to develop this property in such a manner that it willhave a huge negative impact upon our neighbourhood and on the Island itself. Iam not opposed to properly managed development. However when we purchasedour property on Umlah point, we believed that the extent of development wouldbe limited by the lands situated on the point itself. Over the years we haveparticipated in meetings of those who share common right-of-way along theprivate road. It has always been unanimously agreed that we would not seek toturn our road over to the County to have it upgraded to a public road. We havejointly contributed to the maintenance of the road, paying into a common fund,and participating in road mending ‘parties’. We have felt that the privacy andpeace afforded by a private road were worth the effort and expense. Should FrankGeorges Investment Ltd. undertake a subdivision of the island into numerousproperties, as appears to be the intent, both our local environment and ourpersonal enjoyment of our own properties will be affected in a very negativemanner.

[11] Edward Rettie and his son, Alex Rettie, were summer visitors to the

Seabright area in the 1960's. The younger Rettie recalls travelling to Frank

Georges Island for picnics and fishing with his uncle and others. He swore, “the

community used the island for various social events or practical purposes like

farming, getting wood”. The elder Rettie bought his home property on the

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peninsula in 1974. He enjoys “the beauty and serenity of Frank Georges Island”

and says the island provides safe harbour “overnight for countless sailboats”. The

younger Rettie moved into his father’s home eight years ago. They are concerned

that “If the island becomes private property, it would no longer be accessible for

the enjoyment or practical use of the community.” and “The development of the

said island would adversely affect the public use thereof.”

[12] Mr. Clayton Coveyduck testified he had a vacation home in the area for

about twelve years, then he built his residence next to Ms. Grace. He has

witnessed sailboats harboured near Frank Georges Island and sailors going ashore.

He said his interest in this proceeding is simply that there is not enough

recreational Crown land in Nova Scotia and the island should be available for the

wider public.

[13] Mr. Peter Stout lives at the Head of St. Margaret’s Bay. He knows Frank

Georges Island as a place for recreation and as a safe haven on the east side, away

from open sea. He says the island “is the only overnight island anchorage in St.

Margaret’s Bay”. Many recreational boats stop there between May and November

each year. He, himself, has anchored overnight near the island at least fifty times

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in the last ten years. Mr. Stout has also witnessed the island itself being used.

Boaters come ashore there. Birds, including terns and eagles, and wild mushrooms

attract people. Mr. Stout has personally enjoyed the island for seventeen years,

including with his children in earlier years.

[14] Mr. Lonsdale Holland lives in Halifax. He says his wife’s family used the

island since the 1920's. He and his wife and his children travelled to the island by

motor boat or sailboat frequently between 1965 and 1980 to swim, picnic, barbecue

and pick mushrooms.

[15] Ms. Patricia Webb Holland’s home is in Seabright and the property runs

from the main highway to the north shore of a small cove. The cove opens onto St.

Margaret’s Bay at a point where the view is dominated by the eastern shore of

Frank Georges Island. Her father built the home in 1949 and she has been familiar

with Frank Georges Island for fifty eight years. Her parents, her brothers and she

enjoyed unrestricted access. They used the island for recreation including picnics,

swimming, digging clams and exploring. In the late 1950's and early 1960's, Ms.

Webb Holland and her teenage friends often made use of the island during the

summers. “It was a very popular spot...”. In the late 1960's and early 1970's, Ms.

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Webb Holland used the island with her family of three children and she now hopes

to go there with her grandchildren. Also, she knows the island “to be a safe haven

for yachtsmen or sailors on afternoons or overnight.”

[16] Ms. Joan Elizabeth McGee’s property is in the Village of Seabright. It is on

the next cove north of Ms. Webb Holland’s. Ms. McGee’s parents bought the

property in 1943 and she came there during summertimes. She lived in Ontario off

and on in the 1970's, 1980's and 1990's, full time from 1989 until 1999. She has

lived at the property in Seabright as her home since 1999. Her parents brought her

and her brothers to the island for recreation, she brought her children there and she

looks forward to bringing her grandchildren there. She swore “We have always

been able to come here without hassle from anyone.”

[17] Historical Evidence - Ms. McGee provided, in her affidavit and in cross-

examination, some historical information concerning the use of the island. She

understood that Robert and Jane Boutilier used the island for farming in the late

1800's. They moved from the island to Ms. McGee’s property on the mainland in

the 1890's. Mrs. Boutilier visited the McGee family in the 1940's. Her grandson,

Lester Boutilier, can confirm his grandparents lived on the island.

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[18] As Mr. Keith for the plaintiff pointed out, this information is consistent with

the plaintiff’s abstract of title. There is a 1810 deed conveying “Rouse Island” and

two smaller nearby islands in St. Margaret’s Bay to a George Boutilier. These

were conveyed by George and Elizabeth Boutilier to Francis Boutilier in 1821, the

larger island now being referred to as “Jolimores”. Trustees of the estate of a

deceased Francis George Boutilier conveyed thirty-three acres on “Frank Georges

Island” to James J. F. Boutilier. The conveyance was supported by a 1861

subdivision plan showing the thirty-three acres and the remaining “reserved or not

sold” portion of “Big Island or Frank George’s Island”, the apostrophe being

included and the origin of the name becoming clear. This plan shows a wharf and

a store on the eastern shore of the island. The description in the conveyance makes

reference to a road and a house as well as the wharf and the store. Probate

documents show that James J. F. Boutilier and his wife, Mary Elizabeth, drowned

just before Christmas 1865 “while attempting to cross in a boat from the Mainland

to the Island where they resided”. The inventory includes “share of Frank

George’s Island (Homestead) $800.00". Chattels listed in the inventory show the

family was engaged in farming and fishing. Mary and James Boutilier left behind

six children, all under twenty-one. Title to the thirty-three acres would have

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passed undivided to them. Various conveyances were made between the children

or their spouses in the 1890's. In the first half of the twentieth century, heirs of one

of the children purported to convey a whole interest in the thirty-three acres to the

widow of one of the children and she conveyed the property to a Simeon Boutilier

in 1923, but she reserved “the home on the homestead for the remainder of her

natural life”.

[19] What became of the reserved part of the island? The trustees of the Francis

George Boutilier’s estate obtained a licence from the court to sell the remainder

and the two smaller islands at public auction. However, it appears there were no

bidders at either of the two sales the trustees organized. Thus, the remainder would

have stayed in the heirs of Francis George Boutilier, his nine children. Some of the

interests or claims of these nine children were acquired by the same Simeon

Boutilier.

[20] It is the position of the plaintiff that Simeon Boutilier acquired all

unextinguished interests in Frank Georges Island to the extent that Francis George

Boutilier had any title to the island. The plaintiff says that unconveyed interests of

some of the six children of James and Mary Boutilier and some of the nine children

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of Francis George Boutilier were extinguished by operation of s. 4 of the

Marketable Titles Act and the interests of the remaining children eventually passed

to Simeon Boutilier. Whether this is so, whether title passed from the Crown to

Francis George Boutilier and whether Simeon Boutilier’s title passed to the

plaintiff are issues for trial and they are not important to the decision I have to

make. What is important is that the record tends to show that from 1821 until 1861

Francis George Boutilier used Frank Georges Island under cover of deed and either

he or his predecessors built a wharf, a store, a house and roads on the island.

Further, the record tends to show that, under cover of deed, James and Mary

Boutilier and their children occupied a large portion of the island as their home and

they also used it for fishing and farming. Furthermore, as late as 1923 a

descendant by marriage of James and Mary Boutilier was referring to at least a

portion of the island as her “homestead” and reserved a life interest in the “home”

on the island.

[21] The Meaning of “Interest” in Subsection 10(2) - Section 10 of the Quieting

of Titles Act provides for intervention in a quieting of titles action. A person “who

thinks he may be affected by the claim for a certificate” may apply: s. 10(1).

Subsection 10(2) empowers the judge. The language is mandatory and the

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threshold is low: “...the judge shall permit the person to intervene as a defendant

unless it is clear that the person has no interest that may be affected by the

proceedings.”

[22] For the applicants, Mr. Hattin drew my attention to Comox-Strathcona v.

Hansen, [2003] B.C.J. 1498 (SC). However, that was a planning law case. The

defendants built an airstrip on their land. The local zoning laws prohibited various

uses for this land, including as an “airport”. The municipality sued for a

declaration and an injunction. Owners adjacent to the airstrip were allowed to

intervene. In contrast, the present case does not seek to enforce any planning law.

It seeks to settle ownership. The first question is whether “interest” in s. 10(2) is

broad enough to cover people who might be affected in some way if the plaintiff is

found to be the owner. If not, the applicants must demonstrate a possibility of

some legal interest in the property or seek to enforce planning law if a proposed

use is unlawful. Mr. Hattin also referred to Bedford v. Guernsey Development

Group, [1986] N.S.J. 286 (SC). In that case, the Town of Bedford obtained a

determination of the Town’s title interests in lands owned, subject to those

interests, by the defendant. Residents applied under the Civil Procedure Rules to

intervene. Mr. Hattin referred me to this passage at para. 5:

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As the corridor and the Eagle Rock area it leads to were originally intended forthe benefit of the people of the area, and because of the specific interest of someof the intervenors, I have granted an order allowing these residents to be parties tothis action.

In that case, the applicants asserted a legal interest by way of public dedication and

acceptance. In any case, their participation in the action did not turn on s. 10(2) of

the Quieting of Titles Act or a similar provision. Again, the first question is the

meaning of “interest” in subsection 10(2).

[23] The main argument for the applicants takes “interest” to have the sense of

“The relation of being concerned or affected in respect of advantage or detriment”

or “The feeling of one who is concerned or has a personal concern in anything”:

“interest”, Oxford English Dictionary 2nd ed. (Oxford, 1991), v. VII, p. 1099,

senses I 2a and I 7a. The question is whether, in subsection 10(2), “interest” has

that kind of meaning or its primary meaning, “The relation of being objectively

concerned in something, by having a right or title to, a claim upon, or a share in.”

including “legal concern in a thing; esp. right or title to property...”: OED, sense I

1, I 1a.

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[24] I must construe the operative words of s. 10(2) in their full context including

the surrounding text, the statutory scheme of which they are part and the statutory

purposes which they are to serve.

[25] The relevant textual references include the long title, “An Act to Provide for

the Judicial Ascertainment of Rights in Real Property”. The word “interest” is

used in the primary sense for the definition of “property right”, “any estate,

interest, power or other right in or with respect to land”: s. 2(h). Section 9

concerns references by the Court to the Attorney General where a judge is not

satisfied that materials filed by the plaintiff “disclose all the persons and interests

likely to be affected”: s. 9(1). The referee must “investigate in the interest of all

adverse claimants”: s. 9(1) and must report “all interests and circumstances that

appear to be reasonably possible”: s. 9(4). Then follow the provisions most

pertinent to the present question. Subsection 10(1) provides:

Any person, who thinks that he may be affected by the claim for the certificate,may be heard on the application for directions and may be permitted to interveneas a defendant at any time, by the court or a judge, but shall not be permitted tocontest the claim unless the person is added as a defendant.

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Subsection 10(2) provides:

The person shall apply to a judge in chambers to be made a defendant after givingtwo clear days notice of application to the plaintiff, and the judge shall permit theperson to intervene as a defendant unless it is clear that the person has no interestthat may be affected by the proceedings.

The word “interest” also appears in s. 12(2), which allows the court to order a

special remedy. Where a person who has not been in possession in the past twenty

years “has or may have an interest in the lands” the Court may order “that the

interest of such person vest in the plaintiff” subject to a provision for compensation

under s. 12(3) for “the value of that interest”. The usual remedy under the statute

is a certificate of title and the essential finding to support a certificate of title is

made by the Court summarily under s. 11(4) or after trial under s. 12(1). In either

case the finding must be that a claimant is “entitled” to a “property right”.

[26] The word “interest” in s. 10 is used in association with textual references to

property rights. Further, the same word is used in s. 2(b), s. 12(2) and s. 12(3) in

its primary sense. Furthermore, the use of the plural of the same word in s. 9(1)

and s. 9(4) is at least as consistent with the primary sense of a legal right in

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something as it is with the secondary sense of a concern for or curiosity in

something. The surrounding text suggests the primary meaning.

[27] The scheme and purpose of the statute can be understood in its historical

context. This statute was one of those resulting from the work of the uniformity

commissioners late in the nineteenth century. It responded to the situation, well

familiar to Nova Scotians, where the conventional land titles system had broken

down in respect of some pieces of land. Owners or locations or both could not be

ascertained with certainty. The scheme allows a person claiming property to sue

the Crown and prove entitlement. Ultimately, the scheme provides a remedy to

successful claimants by way of an order for a certificate of title, which extinguishes

most potential or actual competing claims and gives the plaintiff clear title. As

already stated, this may be achieved summarily or, in cases like the present where

the Crown or others defend, upon trial. The scheme includes provisions, of which

s. 10 is a part, by which those with potential competing claims are, as much as

possible, notified of the proceedings and given an opportunity to contest the

plaintiff’s claim and, even, to advance their own claim for a certificate.

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[28] This scheme has all to do with determining property interests and nothing to

do with the interest of the general public in land use. The later is the subject of

planning law under the Municipal Government Act and under the laws of the

various municipalities. The scheme of the Quieting of Titles Act indicates that

“interest” in s. 10 refers to the primary sense of that word, as in a legally

enforceable interest.

[29] With these contexts in mind, one turns to the purpose of the statute and there

can then be no doubt about the meaning of “interest” in s. 10(2). I adopt the

following from Mr. Keith’s pre-hearing brief:

Proceedings under the Act relate entirely to the determination of title issues. Thecase law is clear that the purpose of the Act is to provide a mechanism to quiettitles (Bowater Mersey Paper Co. Ltd. v. Nova Scotia and Peck (1988), 83 N.S.R.(2d) 162 (N.S.C.A.)) or , put another way, deal with title problems (Baker v. NovaScotia (Attorney General), [1992] N.S.J. No. 222 (N.S.C.A.)). Similar statementsof purpose have been expressed in other jurisdiction when discussingcorresponding legislation. In Pawlett et al v. Newfoundland (1983), 41 Nfld. &PEIR 349 (Nfld. C.A.), Gushue, J. A. said:

The purpose of the Quieting of Titles Act is to confirm title to landin a person (or persons) who is able to prove to a judge’ssatisfaction that his claim to the land is valid. That title wouldhave to be shown to stem from a legal basis or, in the alternative,be based on possession. As section 2 of the Act states, it is aninvestigation of a claimed ‘title’ to land. Thus, the sufficiency ofthat title, legal or otherwise, must be demonstrated to satisfy the

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Court that a certificate should issue declaring the claimant to be‘legal and beneficial owner in fee simple’ of the land.

Having regard to this overall purpose, persons with an “interest” in theseproceedings involve only those individuals whose legal interests might bear uponor affect the determination of any title issues raised in the proceeding. Obviously,this does not preclude a person from providing evidence as a witness. However,it does preclude adding as actual parties (with all the rights and obligationsattached thereto) those individuals who cannot claim a legal interest which mightbear upon the title issues but simply have a general interest in the outcome.

In short, “interest” in s. 10(2) means having a right or title to, a claim upon or a

share in the land in question.

[30] Is s. 10(2) to be Supplemented by Rule 8.01? - Rule 8.01 concerns

applications by parties who wish to intervene in an existing proceeding. Rule

8.01(3) directs the Court to consider “whether the intervention will unduly delay or

prejudice the adjudication of the rights of the parties”. Mr. Keith argues that Rule

8.01 applies to the present application in addition to s. 10(2) of the Quieting of

Titles Act, such that if I determine under s. 10(2) that an applicant might have an

interest that could be affected by the proceedings, I must go on to consider any

delay or other prejudice the intervention would cause to Mr. Keith’s client, the

plaintiff.

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[31] This argument rest largely upon s. 3(3) of the Quieting of Titles Act: “Except

where it is expressly otherwise provided, the Judicature Act and the Civil

Procedure Rules apply to such actions.”

[32] I do not accept this argument. Usually Rule 8.01 applies to proceedings

where only the parties and their privies are bound by the findings and the order for

relief. The jurisdiction of a superior court is such that non-parties can be made

subject to orders, even final orders granting relief. However, that power is used

exceptionally and justice usually demands that a person either be made a party or

not be bound. Put another way, a plaintiff would be hard-pressed in making an

argument that a person should be bound by the judgment but refused status.

[33] The Quieting of Titles Act follows the unusual course of binding persons

although they may not be parties. It implements procedures for identifying and

notifying persons with possible interests so they may have the opportunity to apply

to be joined under s. 10. However, absent fraud, the final order extinguishes the

interests of anyone who fails to intervene and any unidentified persons who never

get the opportunity to intervene.

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[34] In this light, s. 10(2) is not surprising for using the mandatory “shall” instead

of creating a judicial discretion. These words in s. 10(2), “the judge shall permit

the person to intervene”, contrast with the judicial discretion in Rule 8.01(1), “any

person may, with leave of the court, intervene in a proceeding...”. In my

assessment, these provisions cannot stand together. Intervention is “expressly

otherwise provided” in s. 10 of the statute and Rule 8.01 is thusly excepted under s.

3(3) of the Quieting of Titles Act.

[35] Accordingly, the only question to be answered in determining whether an

application for intervention under the Quieting of Titles Act should be allowed or

disallowed is whether “it is clear that the person has no interest that may be

affected by the proceedings”, it being understood that “interest” has the primary

sense involving a right, title, claim or legally protected share in something.

[36] It is Clear that the Applicants Have No Legal Interest in Frank Georges

Island? - There is no suggestion that any applicant has any claim to the island or

any part of it under any grant. Further, the evidence of the applicants is preclusive

of any claim through adverse possession because none assert any act of ownership.

They and their predecessors have been visitors and are opposed to the very notion

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that anyone possessed Frank Georges Island exclusively. Furthermore,

prescriptive rights of way are not a possibility. The applicants’ lands are separated

from the island by a body of water. The only avenue for inquiry is privately

enforceable, public rights in land. While maintaining the Crown’s primary

position that the island was never granted and the unfettered title remains in the

provincial government, Mr. Cameron pointed out that the applicants may have

claims as members of the amorphous public, distinct from and, indeed, contrary to

the government’s claim to absolute title. I have to consider whether there is a

possibility of a claim that the island was dedicated to the public and the dedication

was accepted by the public, or of a claim that members of the Seabright community

have customary rights in respect of the island, or of a claim that the island is a local

commons.

[37] The branch of property law known as dedication and acceptance developed

in reference to roadways passing over private lands. If the owner dedicated the

roadway to the amorphous public and the public accepted the dedication, say by

many of the members of a community making use of the roadway, then a public

right of way could be privately enforced. The application of this law extended

beyond roadways. In Carpenter v. Smith, [1951] O.R. 241 (Co. Ct.) a beach was

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found to have been dedicated to the public. Wright v. Long Branch, [1959] S.C.R.

418 concerned the dedication of a war memorial. It is at least arguable that an

island could be dedicated to the public for recreational use.

[38] According to Duff, J. as he then was, writing for the majority in Bailey v.

City of Victoria (1920), 60 S.C.R. 38 at p. 53, land may be dedicated to the public

if two conditions are satisfied: “first, there must be on the part of the owner the

actual intention to dedicate ... and second, it must appear that the intention was

carried out by the [road]way being thrown open to the public and that the way has

been accepted by the public.” He followed (p. 55) Lord MacNaghten in Simpson

v. Attorney General, [1904] A.C. 477 at p. 493: “that the mere acting so as to lead

persons into the supposition that a way is dedicated to the public does not in itself

amount to dedication”. However, it is also said that “Open and unobstructed use

by the public for a substantial period of time is, as a rule, the evidence from which

a trier of fact may infer both dedication and acceptance.” Brooke, J. A. in Gibbs v.

Grand Bend, (1995), 26 O.R. (3d) 644 (OCA) at p. 680. Mr. Keith points out that

public use is merely evidence going towards proof of the two conditions. So, in

Attorney-General v. Esher Linoleum Co. Limited, [1901] 2 Ch. 647 at p. 650 the

Court stressed that “user is but the evidence to prove dedication” and “what always

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has to be investigated is whether the owner of the soil did or did not dedicate

certain land to the use of the public.” With roadways, there needs to be proof of

“an actual intention on the part of a predecessor in title of the plaintiff to dedicate

the road as a public highway”: Reed v. Lincoln (1974), 6 O.R. (2nd) 391 (CA) at p.

396.

[39] Hence, a claim by the applicants that Frank Georges Island has been

dedicated to the public would involve their offering evidence of use by the public

of a kind that could prove that a predecessor of the plaintiff dedicated the island for

public use as a park. In my assessment, the evidence for dedication is so weak that

such a claim would clearly fail.

[40] The record shows that the island was inhabited from the mid-eighteenth

century until the first quarter of the last century. The men referred to in deeds are

said to have been fishermen. The record indicates the island was inhabited by a

fishing family who kept a substance farm and also operated a store with a wharf on

the leeward side of the island. It is clear that the island ceased to be inhabited in

the early twentieth century. The applicants describe two kinds of use: by

recreational sailors who take protection from the sea, such as for sleeping

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overnight, and by local residents or summer visitors who use the island for

recreation, such as swimming. Sailing is very common along the south and eastern

shores of this province. Sailors wanting a break or an overnight rest sometimes

anchor in coves or to the protected side of an island. For the most part, they are

using the water, which belongs to the government, or the foreshore, which also

belongs to the government. If sailors who take advantage of protection afforded to

sailboats by the leeward side of an island come on shore occasionally, that can say

nothing of an intention by the owner to make a public dedication of his land.

Tolerating occasional visits by sailors to an uninhabited island is not the least like

tolerating the public using part of ones land as a roadway. The former use is

expected, the latter use is unusual. Because it is unusual, it is stuff for an inference

about the owner’s intents. Because use by sailors of the leeward side of an island

is expected, this use can offer nothing for an inference about the owner’s intents.

[41] Secondly, some residents of or summer visitors to the Seabright area travel

by boat to the island to enjoy the many pleasures that accessible, uninhabited

islands offer. On all shores of this province, uninhabited islands near populated

areas frequently entertain visitors. Similarly, the uses of Frank Georges Island

made by residents and summer visitors in the Seabright area are occasional visits to

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an interesting and accessible island near a populated area. Such a commonplace

activity only shows that the island is uninhabited, and not that the island is “being

thrown open to the public”. The situation is not at all like that in Gibbs v. Grand

Bend, where a beach was at a public pier near the main street of a village making

“a well known and popular resort area” (p. 681). In that case, there was evidence

of the beach having been “thrown open to the public”. The recreational uses of

Frank Georges Island described in the evidence offered by the applicants could not

found an inference of dedication to the public.

[42] I am obliged to assess the evidence for dedication to the public to see if it

meets the very low threshold of “clear that the person has no interest” as provided

in s. 10(2). I am satisfied that there is clearly no case to be made for dedication to

the public.

[43] In England, the essentials of a customary title are (1) immemorial existence,

(2) reasonableness, (3) certainly as to terms, locality and persons and (4) continuity

as of right without interruption since its immemorial establishment: Halsbury’s

Laws of England, 4th ed. reissue, v. 12(1) (Butterworths, London, 1998) para. 406.

Some doubt that customary title is a part of Canadian law: A. H. Oosterhoff and W.

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B. Rayner, Anger and Honsberger Law of Real Property, 2ed. (Canada Law Book,

Aurora, 1985), p. 1006. However, in Ogilvie v. Crowell (1904), 40 N.S. R. 501

(SC), Graham E. J. entertained the possibility that people in Lawrencetown, West

Chezzetcook and Porter’s Lake had a customary right to gather seaweed from a

beach and a point owned by the plaintiff. The Equity Judge was of the opinion that

seaweed could not be the subject of a custom because it was a profit a prendre and,

in any case “the proof fails to make out a custom in respect of the inhabitants of the

districts named in the pleadings” (p. 503). See also Hynes v. Hynes (1989), 79

Nfld. and P.E.I R. 86 (N.C.A.), [1989] N.J. 77.

[44] For reasons similar to those respecting dedication to the public, a customary

right to use Frank Georges Island as a park would have to be found to be

unreasonable. The island having been visited occasionally by sailors and local

residents after it became uninhabited is so commonplace that this use clearly “must

have resulted by accident or indulgence, and not from any right conferred in

ancient times”: Halsbury’s,para. 409. Further, the use is clearly neither

immemorial nor continuous. No Canadian court has decided what might constitute

time immemorial in the Canadian context. (In England, it is the year 1189 when

Richard the First became king.) However, it has to be earlier than the period to

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which the applicants refer. Frank Georges Island was inhabited under at the least a

colour of title in the nineteenth century and the early twentieth century. Clearly, it

was not being used as a park by the local public in those days.

[45] It is clear that a case for use of Frank Georges Island under a customary title

would fail.

[46] The English law respecting commons arose “out of the peculiarity of feudal

arrangements” and it never applied in Nova Scotia: Beamish Murdoch, Epitome of

the Laws of Nova Scotia, v. 2 (Joseph Howe, Halifax, 1832), p. 62 - 63.

The right of common is a profit which a man hath in the land of another, as tofeed his beasts, to catch fish, to dig turf, to cut wood or the like. These rightsforming an extensive head of English law, arise chiefly from the custom ofmanors or other prescriptive rights in the old country. But none such exist here,yet we have commons regulated by Provincial Statute, none of which appear tocome within this definition, as the persons entitled to the use of these commonsare in some cases also owners of the soil of the common under grant from thecrown, or the common has been granted by the crown to some trustees orcorporation for the benefit of the inhabitants of some township, who are entitledas well to the property of the soil as to the use of it under such grants.... Butcommon may in this country be created by deed as an incorporeal hereditament,as one man may grant such rights in his lands to a number of others, and in thatcase the rights arising to the commoners under such an instrument, would beconstrued by the language and intention of the deed, and not by the lawsrespecting commons in England, which arose out of the peculiarity of feudalarrangements.

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See also, Halsbury’s, v. 6, para. 501. According to Murdoch, the only commons

here are those created by deed or statute. We could add dedication and acceptance

in light of some decisions that use the word “commons” interchangeably with

“park”: eg. Wright v. Long Branch, [1959] S.C.R. 418 at p. 423. That takes us

back to my comments on dedication and acceptance.

[47] Conclusion - The applicants advanced their case for intervention on the basis

that being concerned for Frank Georges Island or being affected by the way it is

used would constitute a sufficient “interest” to give rise to status under the

Quieting of Titles Act. I have decided that the word “interest” in s. 10(2) of that

statute has its original or primary sense akin to legal interest or property interest.

That did not determine the applications because Mr. Cameron raised the possibility

that the evidence provided by the applicants might give rise to a case for a public

right enforceable privately by the applicants. Consequently, I have discussed the

laws of public dedication, customary title and commons. I have concluded that the

evidence offered by the applicants, assessed in light of the abstract of title, so

clearly fails to establish any possibility of public dedication or customary title that

“it is clear that the person has no interest that may be affected by the proceedings”,

the words of subsection 10(2). Further, it is clear that the English law referable to

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commons is inapplicable in Nova Scotia and Frank Georges Island could only be a

“commons” by way of statute, deed or dedication, all of which are clearly excluded

in this case. Therefore, I will dismiss all ten applications.

J.