Supreme Court
Action No. 43 of 1977
7th July, 1979
Staine, J.

Mr. B.Q.A. Pitts for the Plaintiff
Mr. D.R. Lindo for the Defendant

Injunction - Declaration - Intention of testator on division of property - Plan by Surveyor acceptable by the Court to resolve difficulties.

J U D G M E N T

This Action is brought to establish the Plaintiff's claim to certain lands and to establish and settle the boundaries between lands belonging to the Plaintiff and lands belonging to the Defendant and also for a declaration that the Defendant by his agent, servant or otherwise be restrained by an injunction from creating or pulling down or altering or in any way dealing with the freehold property the subject matter of this Action.

The Plaintiff as well claimed an order that the Defendant dismantle any or all property he may have on the said land.

Both the Plaintiff and the Defendant trace their root of title to the same source, the Will of their father, Frederick Samuel Weir, a retired contractor. Frederick Weir was described as a meticulous and well-read man, and numbered among his friends the legendary F.P.A. Phillips, a practising solicitor at the time. It was given in evidence that it was Frederick Phillips who drafted the Will and in devising lots No. 467 and 468 he devised them according to the official plan of Belize. The Will was executed in 1935, that is, after the 1931 hurricane which appears to have damaged the houses to some extent.

Surveyor Mervyn Hulse said that if the testator's directions were followed and the two lots conveyed or divided as directed in the Will part of the Plaintiff's property would be on Defendant's property, and it was argued that such plan could not have been the design of the testator.

In order to resolve the ensuing problems Surveyor Mervyn Hulse was employed. The Plaintiff says he employed Hulse with the knowledge, consent and approval of the Defendant, but the Defendant denied this.

Mr. Hulse in due course put in a plan which he said would resolve the difficulties but although this plan was acceptable to the Plaintiff, it was not acceptable to the Defendant.

Instead the Defendant has brought evidence by witnesses who have spoken of the existence of the dividing line being in existence during the testator's lifetime and known to the Plaintiff.

But nowhere in the pleadings is it alleged that that was the boundary line which the testator intended to demarcate the boundaries of two properties. If this was his intention, then it would have been an easy matter to accrue, especially since the Will was executed after the 1931 hurricane.

In both the Plaintiff's claim and the Defendant's counter-claim they ask for an equitable division of the lots and I do not think it would be equity to order something which the testator never had in contemplation.

The justice of this case would be served by adopting the scheme ordered by Mr. Hulse, and I so order.

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