Norgrove v Dawson et Al

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Joseph Monica, J.
• Judgment Date: 26 October 1984
• Neutral Citation: VG 1984 HC 6
• Docket Number: Civil Suit no. 82 of 1980
• Date: 26 October 1984

High Court of Justice

Joseph, J

Civil Suit no. 82 of 1980

Norgrove

and

Dawson et al

Appearances:-

Mr. J.S. Archibald Q.C., and Mr. G. Farara for plaintiff.

Mr. McW. Todman Q.C., and Mr. P. Webster for defendants.

Tort - Damages — Trespass.

Tort - Damages — Assault.

Facts: Plaintiff claimed to be owner and registered proprietor of land. The defendants owned adjoining land. There was a dispute as to whether the boundary marks should run in straight line or in a curved line. The plaintiff alleged that the defendants repeatedly removed the plaintiff's fence, crossed the boundary lines on the plaintiff's land and placed obstacles along the said boundary.

Facts: Plaintiff claimed to be owner and registered proprietor of land. Defendant owned adjoining land. Dispute as to whether boundary marks should run in straight line or in a curved line. Plaintiff alleged that defendant threatened to throw her over a fence she was erecting and that he subsequently crossed the line of fencing and pushed her. Plaintiff sustained cut on finger from barbed wire.

Held: Special damages of $500.00 and general damages of $300.00 against the first defendant would be awarded. Damages in the sum of $300.00 would be against the second defendant.

Held: Special damages of $120.00 and general damages of $400.00 awarded to plaintiff.

Joseph Monica, J.

1 The plaintiff in a statement of claim filed on 6th April 1981, alleges that –

• (a) she is the owner and registered proprietor with absolute title of all the land comprising Parcel 4 of Block 3639 B of the Beef Island Group Registration Section situate at Beef Island in the Virgin Islands and dying within the boundaries shown on Surveys Plan No. CA-3639-20-B dated April 1972” annexed to the Registry map 3639B;

• (b) all the said boundaries were pointed out by the first defendant to the Demarcation Officer on about January 18th 1972 as belonging to the plaintiff's predecessor in title F.L. Carmichael while the first defendant was an owner of the adjoining parcel 3, in addition to being a real estate representative of the said Carmichael;

• (c) since October, 1979 the defendants by themselves and their servants and agents have wrongfully and, repeatedly removed the plaintiff's fence and crossed parcel 4 along the boundary lines shown between the marks numbered 1QS19 and (Mon C) 1QS18 (Mon A) and placed obstructions across the said boundary, thus interfering with reasonable enjoyment the said land by the plaintiff;

• (d) On December 11th 1979, while the plaintiff was lawfully on the land near the boundary line between marks 5M 23 and 1QS19 the first defendant pushed her on to barbed wire and to the ground and at the same time threatened her in indecent languages.

• (e) in July 1980, the second defendant threatened to do injury to the plaintiff thereby causing her fear and sleeplessness over her safety.

2 By reason of the claims recited above, the plaintiff alleges that she has been deprived of the use and enjoyment of the land: has suffered damage and has also suffered pain and injury. She claims –

• (1) a declaration that she is entitled to possession as owner and registered proprietor of all that land situate at Beef Island in the Virgin Islands comprising Parcel 4 of Block 3639 B of the Beef Island Group Registration Section lying within the boundary shown on Survey Plan No. CA-3639-20-B dated April, 1972 annexed to the Registry Map 3639 B;

• (2) a declaration that she is entitled to erect fences along the said boundary lines between the points adverted to;

• (3) damage's for trespass by the defendants;

• (4) damages for assault by the defendants;

• (5) an injunction ordering the defendants to remove any and all obstructions erected or placed on or across the boundary lines preventing or otherwise interfering with the reasonable enjoyment of Parcel 4 by the plaintiff, her husband, servants, agents or licencees on foot and with animals, motor, vehicles and other conveyances;

• (6) an injunction restraining the defendants by themselves or their servants or agents or otherwise from placing or erecting or allowing to be placed or erected on or across the boundary lines anything restricting preventing or otherwise interfering with the reasonable enjoyment of Parcel 4 by the plaintiff, her husband, servants, agents, and licencees on foot and with animals, motor vehicles and other conveyances.

3 In a defence filed on 31st July 1981, the defendants allege that the plaintiff's land was originally part of a potion of land at Well Bay, measuring approximately 10' acres, and that the first defendant sold a potion to the plaintiff's predecessor in title. Further, that the plaintiff's predecessors in title Richard Mills and Eunice Boardman erected a fence running along the northern side of the road leading the plaintiff's home, and that the said fence was then accepted as the boundary line between properties.

4 The first defendant admits that he pointed out to the Demarcation Officer this fence and the boundary markers 5M24, 5M23, 1QS19 and 1QS18 on Survey Plan No. CA-3639B-20-B drawn by J.M Morshead (hereafter referred to as the plan). The first defendant admits that the boundary follows approximately the lines shown on the plan between the, marks 5M23 and 1QS19 (Man C) and between marks 1QS19 (Mon C) and between marks 1QS19 (Mon C) and 1QS18 (Man A) but deny the boundary line accurately reflects the direction on the land of the boundary dividing the plaintiff's and first defendant's land. There is an admission in the defence that in October 1979, the second defendant removed certain articles the plaintiff had placed on the first defendant's land.

5 Before the commencement of the case, learned counsel for the plaintiff applied for leave to discontinue the case against the third named defendant, Carol Dawson. Learned counsel for the defendant sought and obtained costs — to be taxed unless agreed.

6 My findings are — in April 1972, on instruction of F. Carmichael, James Morshead drew a plan of the land (exhibit C5) (Carmichael subsequently sold the land to Audrey Price). The first defendant pointed out the following boundaries to Morshead: 5K24;, 5K23; 1QS19 (Mon C); 5M25; 1QS18 (Mon A). The first defendant also pointed out an existing fence between ports 5M24 and 5M23 and told Morshead that the boundary between the points shown was a straight line.

7 By letter of 20th December 1972, Mrs. F.L. Carmichael wrote the defendant

“Mr. Dawson, knowing you to be a man true to your promises, I hope you have signed the agreement acknowledging the correct markers on the property. This is not purely for cadastral, but complies with the Surveyor, Mr. Morshead's, yours and Mr. Carmichael's understanding, as all three of you have walked those lines a number of times and agreed they are from Mon A to point 5M25 to Mon C and not on a straight line.”

8 From this correspondence it quid seem that the first defendant had premised to sign a document relative to the markers. I think that what the writer is saying is, that the boundary is not on a straight line, as it runs not from Mon A straight to Mon C, but from Mon A to a paint 5M25 and then from 5M25 to Mon C. (On the plan dream by Morshead the boundary runs from Mon A westwards to 5M25: then continues south westerly to Mon C). The plan drawn by Morshead was authenticated by Chief Surveyor on 22nd June 1973, and was used in the adjudication process.

9 In 1979 the plaintiff purchased parcel No. 3639 B from Audrey price for the sum of $85,000. She was shown the boundaries of the land by Iain McKinnon the real estate firm of Smith Gore of Tortola. She commenced construction of a house which she and her husband occupied in August 1979. The house was completed in 1982. In 1980 she obtained the services of a licensed surveyor James Morshead to conduct a survey so that she could erect a fence. A boundary dispute arose between the parties.

10 Application was made to the Registrar of Lands to settle the dispute between the parties and on 19th August 1980; the parties accompanied by their solicitors, James Morshead and the Chief Surveyor met on the site. Hereunder is the report of the Registrar Of Lands dated 17th November 1980.

• “(1) The purpose of the visit the inspect the boundaries between parcels 3 and 4 end to ascertain whether or not the said boundaries had been interfered with as alleged by Mr. Alexander Dawson Proprietor of Parcel #3 Block 3639 B.

• (2) The boundary marks, were pointed out to the Chief Surveyor by Mr. Alexander Dawson and also by Mr. Morshead who had recently resurveyed Parcel # 4 3639 B for his clients Mr. And Mrs. Norgrove.

• (3) I think the real issue in this dispute is not sp much the removal of boundary marks; it is more like whether or not the boundary marks should run in a straight line as claimed by the Norgroves or in a curved line as claimed by the Dawsons.

• (4) A survey check on the disputed boundary was carried out by the Survey Department on the 2nd September 1980, a copy of the results of the Survey Department's findings which is self explanatory is attached for information.

• (5) In conclusion, accordingly it was found that the boundary as shown by Mr. Morshead & Mr. Dawson were the same as...