Winston O'Neal Appellant v Philipee Dudan Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: PETERKIN. J.A.
• Judgment Date: 14 February 1977
• Neutral Citation: VG 1977 CA 5
• Judgment citation (vLex): [1977] ECSC J0214-1
• Docket Number: CIVIL APPEAL NO. 6 of 1975
• Date: 14 February 1977

[1977] ECSC J0214-1

IN THE COURT OF APPEAL

Before:

The Honourable Sir Maurice Davis-Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 6 of 1975

Between:

Winston O'Neal

Appellant

and

Philipee Dudan

Respondent

Appearances:

J.S. Archibald for Claimant/Appellant

M. Riegels for Claimant/Respondent

1 JUDGEMENT

PETERKIN. J.A.

2 This is an appeal against the decision of the Adjudication Officer dated 11th May, 1974, in favour of the Claimant/Respondent awarding to the heirs of the late Ian Major approximately 14.2 acres of land at Valley Trunk Bay, Virgin Gorda, and declaring them to be the proprietors with absolute title.

3 The grounds of appeal are two, namely:-

• (1) That the Adjudication Officer misconstrued the evidence taken, including the Deeds of Conveyance exhibited at the adjudication proceedings; and thereby wrongly concluded that the heirs of Ian Major by virtue of a Deed of Conveyance No. 53 of 1960, rather than the Claimant/Appellant by virtue of two earlier Deeds of Conveyance No. 52 of 1944 and No. 116 of 1956, were entitled to be adjudged proprietors with absolute title of approximately one and half acres of beach lands in Virgin Gorda bounded "on the West by the Sea".

• (2) That the Adjudication Officer was wrong in law in holding that t he words "by the sea", mentioned in the aforesaid three Deeds of Conveyance, mean nothing by themselves.

4 Two claims were filed in this matter. The first dated 7/1/74, was filed by the Appellant and claimed all of the land commonly called "The Hole" situated at Valley, Virgin Gorda, being 14.4 acres by admeasurement. The second claim, dated 16/1/74, was filed by the personal representatives of Ian V. Major (deceased), and claimed 14.2 acres of land at Valley Trunk Bay, Virgin Gorda. The respondent claimed that the late Ian Major purchased the whole of Valley Trunk Bay from the children of the late Severius O'Neal on 24/2/60 by deed No. 53 of 1960. The Appellant claimed that the southern boundary of his land which, according to his deeds 52 of 1944 and 116 of 1956, extends westwards "to the sea", when taken in a straight line westwards to the sea cuts across the northern end of the land claimed by the Respondent, giving an area in dispute of approximately 1 ¹/₂ acres.

5 In the year 1918 Alexander O'Neal died intestate seized in possession of 105 acres of land. He had 8 children of whom the eldest son and heir at law was Arthur O'Neal. Severius was another son, and sowas Otto. Irvine is the son of Severius, and Ralph the son of Otto. Of the eight children one was a daughter. She was named Lucina. The Appellant, Winston O'Neal, and his brother Robinson are the sons of Lucina. In 1943 Arthur and the other 7 children of Alexander O'Neal agreed on a division of the land. The sons each received 13 acres. Lucina got 14 acres. She was the only one given a deed by Arthur. It was numbered 52 of 1944 and appears at p. 70 of the record. Her 14 acres was made up of three parcels. The first parcel consisted of approximately 8 acres at a locality called and known as "The Hole". Its western boundary is described as being "westerly by the sea". It is the parcel in issue. On 9/11/1956 Lucina made two deeds, one, No. 115/56, in favour of her daughter Dorothy Millicent, and a second, NO. 116/56, in favour of her son Winston, the Appellant. She gave to them each approximately 4 acres of the land known as "The Hole". Again, the western boundary is described as being "west by the sea."

6 Four years later, on 24/2/60, Irvine O'Neal and his brothers who were the sons of Severius O'Neal conveyed to Ian Major by deed NO. 53 containing by admeasurement approximately 13.01 acres.

7 At the hearing a description of the area including its topography was given by the witness Edward Anker, a licensed land surveyor. He had done surveys for both the Appellant and Ian Major. In doing the survey for the Appellant in 1969 he had been shown his southern boundary which was a fence running approximately westwards from the public road. This fence continued for approximately 350' and then was angled 15° north in another straight line for 150' where it terminated. He was told to ignore the latter stretch and to take the bound due west from the point of change of direction. He was not shown the bound, and the terrain over which it passed was virtually impassable due to the incline and to the presence of large boulders. He computed the southern bound, and later went across neighbouring land in order to place the mark on the western seaward bound. Winston O'Neal, he said, did not know where the bounds were. Anker's survey appears at p. 68 of the record. When engaged to carry out this survey he was told that the land was approximately 8 acres. When he later surveyed and divided the land into two parcels as instructed they measured 14.5 acres and 14.4 acres respectively. This would represent an increase of approximately 21 acres.

8 There was evidence from Ralph O'Neal that he knew "The Hole" to be the flat land west of the road, and to extend to the large rocks in the west and not to the sea. He also testified that when Alexander O'Neal's land was divided in 1943 the whole of valley Trunk Bay was allocated to Severius. There was also evidence from Irvine O'Neal, now 65 years of age, that from the age of 8 or 9 years he had worked the whole of Valley Trunk Bay with his father practically every day, while Lucina's husband had worked in "The Hole", and not in Trunk Bay. His evidence was that nobody ever went over the boulders between "The Hole" and Trunk Bay until the electric cable party came to the island. Harold Flax, now 76 yrs old, testified in detail how Severius had always worked the whole of Valley Trunk Bay. The Adjudication Officer found him to be the most impressive witness in regard to his local knowledge, while he found that the evidence of the Appellant was at times uncertain due to his long absences from Virgin Gorda and consequent unfamiliarity with the land.

9 Counsel for the Appellant has submitted that after the Appellant received his land in 1956 there is no evidence that he was dispossessed; also, that the Adjudication Officer had misconstrued the evidence because there was no evidence of exclusive possession in others to oust the Appellant.

10 In answer to this counsel for the Respondent has submitted that the Appellant's deeds never contained the land in dispute as it was never within the gift of the donors. He argued that the Adjudication Officer was asked to interpret the deeds, and that he was entitled to take into account all the evidence including the topography of the area. The preponderance of evidence is that "The Hole" was a flat area of land of approximately 8 acres east of the boulders, and did not include Valley Trunk Bay. The rule as to deeds is that when premises are sufficiently described, as by giving a particular name, an erroneous additional description will be rejected as a false demonstration, and so where the particular land is ascertained with certainty by part of the description--in this case "The Hole"---an erroneous statement as to the boundary will be rejected.

11 But the matter does not rest there. Counsel for Respondent has submitted that in any event the Respondent was relying on possession. He referred to the evidence of Ralph O'Neal, Harold Flax, and others and even to that of the Appellant's witness Alfredo Vanterpool at p. 45 of the record. He argued that the issues were issues of fact, and that the Adjudication Officer was...