Racoon Ltd v Turnbull et Al
| Jurisdiction | British Virgin Islands |
| Judge | Bertrand, J. |
| Judgment Date | 30 May 1991 |
| Neutral Citation | VG 1991 HC 2 |
| Docket Number | Civil Suit no. 101 of 1982 |
| Court | High Court (British Virgin Islands) |
| Date | 30 May 1991 |
High Court
Bertrand, J.
Civil Suit no. 101 of 1982
Mr. Farara for the plaintiff
Miss Penn for the defendants
Real Property - Right of way — Plaintiff registered proprietor of certain plot of land with a right of way over a road — Defendant's father the grantee of a lease over the same road — No evidence of any restriction of the plaintiff's title on the register — Evidence of user of the road for a prolonged period without objection by the defendant or his father — Improvements made to the road by the plaintiff — Latches — Defendant blocking off the plaintiff's access to the road — Land Registration Ordinance, 1970, s. 23, 139, 140.
Administration of Estates - Executors — Executors de son tort — Defendant the deceased proprietor's son — Did not take out probate or letters of administration — Entered into possession of his deceased father's property and dealt with it — Whether defendant properly sued as executor de son tort of his father's estate.
The plaintiff is a registered Company incorporated in the British Virgin Islands on 18th April, 1979. On the 12th June, 1979 the plaintiff purchased a portion of land known as Parcel 16 from Howard Moseley Schaun and Mary Ann Schaun for valuable consideration - Exhibit ‘C 8’.
This Parcel 16 is registered in Block 263813 West Central Registration Section. It would do well to recite here parts of the Memorandum of Transfer as follows:–
“We, Howard Moseley Schaun and Mary Ann Schaun … in consideration of the sum of sixty thousand dollars United States currency (US $60,000.00) - the receipt whereof is hereby acknowledged) hereby transfer to Racoon Limited …. the land comprised in above mentioned parcel together with the dwelling house erected thereon and all appurtenances thereto ….”
The said Parcel 16 was subsequently registered under the Land Registration Ordinance 1970 No. 8/70 in the name of Racoon Limited in place of Howard M. Schaun and Mary Ann Schaun (as joint Proprietors) on 11th July, 1979 with supporting transfer. Instrument No. 469/79, the approximate area being one acre.
In May 1979 before sale was concluded the witness Michael Reigels and his wife and family moved into the house on Parcel 1.6. They lived there until February, 1987. In his evidence, Mr. Reigels who is a Barrister-at-Law and Solicitor said the house was in need of repairs, and during the years May 1979 to February 1987 significant repairs were made to it at a cost of $5,000.00. It was he who arranged the funding for the purchase of the property and caused the said company to be incorporated.
Whilst the repairs were being done, the contractors and his three (3) helpers came to the house through a road on Parcel 27 which he said is a right of way serving Parcel 16, the land which the plaintiff bought from the Schauns and is part of Greenbank Estate. The right of way is a registered appurtenant as seen on Exhibit ‘C 3’.
To inspect the property before the sale, Reigels said he travelled through Road Town, Joe's Hill up the Ridge Road and into a graded road leading to Greenbank Estate. It was a level motorable earthen road which he claimed was on Parcel 27. He drove as far as Parcel 16. He could, he said have driven further. Trucks with materials for repairing the house came down the road over Parcel 27. In 1980 more repairs were done to tire house and it was through the road on Parcel 27 the workers came and materials were brought to the house. There was and still is an access from Parcel 16 above the house to the Estate Road, then to Parcel 27 across the Ridge Road. After purchase a new access road was made from “the back door of- the house on Parcel 16 to the Estate and then to Parcel 27 across to the Ridge Road. This new access is at a lower level than the original. This road was cut by a backhoe operator. The builder of the road and his gang, a concrete mixer, the backhoe operator arid. materials for the road all came through the road on parcel 27 to Parcel 16. According to Mr. Reigels no one ever stopped those persons from coming down that road. Every morning between 1979 and 1982 he met workmen on their way to the construction site of Mr. and Mrs. Parker Quillen who were then constructing a house adjacent to Parcel 16.
It was in 1982 that Reigels had a conversation with the defendant Harris Turnbull. The latter said in evidence that he spoke to Mr. Reigels three (3) times in 1982 and that was before August. On the first occasion he met him on the Ridge Road, he was driving his car and stopped. Mr. Harris Turnbull told the Court:–
“I said to hire that road you are driving in is a lease and I was sent to you to continue the lease, because I understand he was in full charge of the Corporation. He said to me, he just buy this house in there and he bought with access to go through this road down to his house. He also said this road is private road and I said no it belonged to me and my father. So it is not private road. There is a lease on it and if you want to continue the lease I will lease you for five or ten years. He said he buy this house with a private road to get into his house. I told him this part on the road up here, the flat part belongs to Lennard Estate. It didn't have no road going through Lennard to Greenbank, I will lease him the road for five to ten years. Otherwise I have to close the road. lie said to me, you dare not close the road, if you know that I'm a lawyer. I said yes I understand so, but lawyers should not use people things and give them hard words on the back to it. So he drive off.”
The second time they met, Reigels was driving over Parcel 27 going to his house and he stopped. The conversation went like this:–
Said Mr. Reigels, “Good afternoon Mr. Turnbull, I am back again. I said, What can I do for you? He said, I would like to get the whole family here and have a meeting. I said the family is all in different countries and if you want thorn, you will have to get them how you could. He said, he will like a long term lease.”
On the third occasion, Mr. Turnbull met Mr. Reigels down the bottom of Parcel 27 Reigels was driving on Greenbank Estate, and he was on Lennard Estate, Reigels said:–
“I would like a long term lease or buy out the piece of land. I said, my father said don't sell, don't exchange and before he turn off I said, what you mean by a long term lease? He said, 99 years. I said, I will probably give a ten years lease not 99 years.”
Despite the first conversation with the defendant the road to Parcel 27 concreted at the expense of those who mach use of the said road on Parcel 27. But it was afterwards physically blocked by the defendant. The evidence of Michael Reigels of the meeting, between the defendant and himself is somewhat different. He said:–
“First conversation with Turnbull took place on the Greenbank Estate Road Parcel 100. I was driving, to work, Mr. Turnbull stopped me. He was complaining he was not getting rent, but was paying rent. I did not fully understand what he was talking about. But he told me if he did not get satisfaction he was going to close the road that is, road across Parcel 27. I told him he couldn't block that road because I had a right of way over it. He said yes he could and he would.”
The road was subsequently blocked by the defendant Harris Turnbull which he admitted. Thereafter this action was bought by the plaintiff against the defendant Harris Turnbull as Executor de son tort of the Estate of James Turnbull, deceased and Harris Turnbull for:
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(1) A declaration that it is entitled as the registered proprietor with absolute title of the land comprising Parcel 16 of Block 26388 of the West Central Registration Section to a right of way 20 feet wide from Meyer's public road running over the lands comprising Parcel 27 of Block 263813 of the West Central Registration Section registered in the name of James Turnbull (deceased) to the main road of Greenbanks Estate in Tortola Virgin Islands arid back over the said way for itself, its servant, agents and licensees on foot and with horses, carriages, motor vehicles and other conveyances at all times and for all purposes.
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2) An injunction restraining the first and second named defendants by themselves or their servants or agents or otherwise howsoever from placing or allowing to be placed on the said way anything, substantially restricting, preventing or otherwise interfering with the reasonable enjoyment of the said way by the plaintiff, its servants, agents and licences on foot and with horses, carriages, motor vehicles and other conveyances at all times and for all purposes and from doing any act whereby the plaintiff may be hindered in the free use thereof.
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3) Damages.
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4) Costs.
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5) Further or other relief.
On the 25th October, 1982 m interlocutory injunction was granted against the defendants until the trial of the action.
I should now go back in time and see how the plaintiff came to acquire, as Michael Reigels contended, a right of way over Parcel 27.
On the 28th August, 1965, Claremont Davies, Catherine Pauline Jacobs, Hilda May Molyneaux, Pearl Rosabelle Flax executrix of the Estate of May Louise Davies, and David Smith executor of tine Estate of Constantia Louise Smith sold a portion of the land known as Greenbank Estate to one Samuel Pecover Penrose of Long Bay, Tortola, British Virgin Islands for a consideration of the sum of $40,272.00. This land is situate in the island of Tortola, British Virgin Islands and contains by admeasurement 100.68 acres and bounded as follows:
On the East in part by lands of Reuben and Hilda Lloyd and in other part by Newbush Estate. On the West by Centerline Gut and in parts by lands of Damon Thomas, Meyers Estate and lands of James Turnbull. On the North by Andersen Estate and on the South in part by lands of Wellington Todman in...
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