Skelton v Pasea Plantation Ltd

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Lewis, C.J.,Gordon, J.A.
• Judgment Date: 09 March 1971
• Neutral Citation: VG 1971 CA 1
• Docket Number: Civil Appeal No. 4 of 1970
• Date: 09 March 1971

Court of Appeal

Lewis, C.J., Gordon, J.A., Lewis, J.A

Civil Appeal No. 4 of 1970

Skelton

and

Pasea Plantation Ltd.

Appearances:

B. St. John, Q.C. (B/dos) and Z. Butler for Appellant

R. Henry, Q.C. and MCW. Todman for Respondent

Injunction - Whether injunction order was properly stated.

Real Property - Possession — Adverse possession.

Facts: Evidence revealed that the court granted an injunction ordering handing over of the land to the respondent. The order was in an abbreviated form.

Facts: The issues were whether the appellant had established a claim to the land and whether the appellant had established a right to the land by adverse possession.

Held: An abbreviated form is appropriate only for the judgment but in the formal order the land must be properly described in accordance with the statement of claim or whatever has been proved. The injunction therefore could not state that the plaintiff was granted the injunction as prayed because the defendant was not obliged to look back at the pleadings to find out what was prayed for. The order must speak for itself and set out exactly what the defendant was enjoined from doing. Order should be amended.

Held: On the basis of the evidence the judge was correct in holding that the land belonged to the respondents. Adverse possession cannot be based on minor acts of trespass on a large estate (e.g. picking coconuts). Appellant's claim failed — Appeal dismissed.

1 1971, March 8, 9

Lewis, C.J.

2 This is an appeal against a judgment of Mr. Justice Renwick delivered on the 19 ^th October, 1970. the action was one for trespass and for possession of land and an injunction.

3 The land concerned is a portion of land which originally formed part of an estate known as Pasea Plantation. It appears that many years ago some people called the Skeltons, James Skelton and his wife, established prescriptive rights over a small portion of this estate known as “Frett Yard”. According to the evidence of one witness this piece of land, Frett Yard, was in the center of the bay-front and extended back from the bay-front to a public road leading into town, and the Pasea estate bounded it on the east and west. Frett Yard has been well established, and for many years the original owner of Pasea estate, one r. Campbell Roy, respected the rights of James Skelton. All the evidence shows that the relationship between Campbell Roy and James Skelton senior was excellent, certainly in their last years. Skelton observed his boundaries and Roy made no claim against him. They got on on excellent terms.

4 Campbell Roy died on 6 ^th December, 1952, and Pasea Plantation passed under his will to his wife Christine Roy. Their son, the witness Rowan Roy, and Christine Roy were the executors of the will. At the time of the death Rowan Roy then a young man, was not in the Virgin Islands but he returned home and began to manage the estate for his mother. Subsequently they sold the estate to Pasea Plantation Ltd. This was in 1964. This estate seems to have been made up of a number of parcels and the particular parcel of which Frett Yard formed a was a triangular parcel 20 acres in extent, and its western boundary is a ghaut known as “Jackass Ghaut”.

5 The first indication of conflict seems to have occurred around 1958. The witness Roy said that they decided to put up a fence on the eastern side of Frett Yard. There had been fences on both sides of this small portion of land — this is agreed by both sides — but for some time those fences had disappeared, and when in 1958 Roy attempted to put up a fence the Skeltons removed it. Now this was shortly after the death of James Skelton senior. Roy said that he was putting this fence up in accordance with boundaries which he had agreed with James Skelton senior somewhere around 1956 or 1957, In 1960 it seem; another attempt was made to erect a fence on the eastern boundary and this too was abortive; the fence was erected but immediately removed. Then in 1968 the respondent, Pasea Plantation, who had purchased the land attempted to make a survey. This was stopped by the Skelton family. So that there has been some dispute as to the boundary of this Frett Yard at least since 1958.

6 According to the witness Roy, in 1969 he observed either two or three clearings, it is not quite clear from the evidence. He said that early in 1969 he noticed on the east side of what he considered to be Frett Yard a piece of clearing — a felling of about 2 coconut trees; he noticed earth moving by mechanical means' and another felling of 2 or 3 coconut trees. He noticed a small machine on a cleared area and the manufacture of concrete bocks. And so this action was commenced.

7 The disputed area in respect of which the action is brought is stated in the statement of claim to comprise an area of 7,000 square ft., bounded on the east by lands of the plaintiff, on the west by Frett Yard, on the north by the public road and on the south by the sea. So that the issue which the learned trial judge had to determine and which he recognised in his judgment was whether this parcel of land had ever formed part of Frett Yard, and alternatively, if it had not originally formed part of Frett Yard whether, as alleged in the defence, it had been occupied by the Skeltons for more than 12 years so that the claim of the plaintiff/respondent company was barred by limitation of time.

8 Evidence in support of the plaintiff's case was given by an old man of 67 years — though nowadays 67 is not really old — who had admittedly worked on this estate for the Roys for a very long number of years and certainly up to 1952. He said that Frett Yard was well known to him that on both sides of the Yard there were coconuts planted, and that he had planted them and reaped from them. He gave the names of various trees which he alleged had been planted at one time or another in order to mark the boundaries, one of them being a gliricidia tree, but it would appear that the gliricidia tree is no longer there. He also mentioned posts set in concrete which had been put up, and this confirmed the evidence of the witness Rowan Roy who had said that these posts were put up around 1956 in agreement with Skelton senior.

9 The learned judge did not base his judgment upon the planting of trees or of concrete pillars because some of those trees, as I said, have disappeared. One mango tree was originally supposed to be the boundary but there are now several mango trees, and indeed part of the conflict of evidence in this case centered around which mango tree was the boundary; and in respect of a concrete pillar which would have been significant, Roy said in his evidence; that when the road was re-surfaced some 2 or so years after the post was at down, the pillar was buried under the new surface of the road. So that the learned judge could not, and this court in my view cannot, gain much assistance from the existence at one time or another of mango trees and gliricidia trees or concrete pillars. But Scatliffe's evidence was definite, that he had planted the coconut trees which are on the land on the east and west of Frett Yard. There was also evidence for the plaintiff and this is to a great extent confirmed by the evidence of the defendant that this area known as Frett Yard was what one might call a...