Supreme Court
Action No. 19 of 1980
9th February, 1983.
Moe, CJ.

Ownership of land - Plaintiff's successor in title occupying land and in undisturbed possession for a period of seventeen years - Application and effect as a bar to claim of ownership of land by Defendant of section 12(2) of the Limitation Ordinance, Chapter 198 - Trespass - Damages for trespass - Nominal damages allowed - Injunction to prevent further trespass allowed.

J U D G M E N T

The Plaintiff claims that on the 25th October, 1979 the Defendant trespassed on his land when he entered on it, removed a sign which stood thereon and uprooted a survey pillar which was on the boundary of his land. The Defendant admits that on that day he removed a sign, but says that the sign was on the property belonging to the Estate of Anita Parham de Alamilla of which he is the Executor. He denied he uprooted a survey pillar, but admits he uprooted a post.

To whom belonged the area of land on which the Defendant entered and on which stood the sign? I accepted the Plaintiff's evidence that he bought a parcel of land of 4 acres from one Spencer Robinson in 1978 at which time one of the markers demarcating the southern boundary of those 4 acres was a marker at the south eastern corner and a post with a sign "Buccaneer Lodge". Further, that that boundary as indicated by the marker and sign, was some distance from a house occupied by one Peter Martinez, then caretaker for Mr. Spencer Robinson. I also accepted Mr. Spencer Robinson's evidence that in 1962 he caused to be erected the sign which said "Private property, Buccaneer Lodge Ltd.", 2 years after he had bought 4 acres of land from the Defendant. That in 1964, he caused to be erected on the land which he bought from the Defendant about 120 feet north of the southern boundary demarcated as above a house which was occupied by his property manager Peter Martinez. Further, that from about 1964 until 1978 he and his wife stayed in the said house for about 10 days every two months. During that time he planted coconut trees in the area and Peter Martinez cleaned the area from a line demarcated by the sign Buccaneer Lodge Ltd. Peter Martinez also gave evidence that he used to clean the area from the mark at the south end up to the north end for about 1,600 feet. No one said anything until he heard Mr. Alamilla was claiming. I therefore found that in 1979 when the sign was removed by the Defendant, the land on which the Defendant entered and says is the property of the Estate of Anita Parham de Alamilla had been in possession of the Plaintiff and his predecessor in title for a period totaling seventeen years. That is counting from 1962 when the sign was erected.

In my view, the evidence outlined above was strong evidence in support of the Plaintiff's contention that the marker and sign were on land bought of the Defendant by Mr. Spencer Robinson and sold by Mr. Robinson to the Plaintiff. The Defendant contended that they were on land belonging to the Estate of Anita Parham de Alamilla. This contention I rejected. Firstly there was nothing on the evidence indicating to me why land belonging to the Estate of Anita Parham de Alamilla was allowed to accommodate a house erected by Mr. Robinson. This house was about 120 feet to the north of the boundary line under consideration. The Defendant was aware of the erection, presence and use of the house and the demarcated area. He gave evidence of knowledge of erection. His evidence that it remained there with his permission was rejected. I accepted the following evidence of Mr. Robinson which was unchallenged. "When I bought the land there was no structure on the land. One structure was put on it while we owned it. My property manager Peter Martinez occupied this structure. This was built about 1964 if I remember correctly. I recall Hurricane Hattie. It was in 1961. Structure built after Hattie. In the area where the structure was there was a sign about 20 feet from the sea designating the property line. That sign was placed there in 1962. Sign said, "Private property, Buccaneer Lodge Limited." Thus, when the structure was erected and of which Defendant would have been aware as shown above, there was already a sign erected designating the boundary line of the land bought from the Defendant. Mr. Robinson also stated, "During the time of my association with the property there was no dispute with me about the southern boundary line and the Defendant had no talking with me about the land." Secondly, even if the area of land involved on which the sign stood had properly at one time belonged to the Estate of Anita Parham de Alamilla my finding of possession of the portion of land concerned for a period of seventeen years 'in toto' by the Plaintiff and his predecessor in title is a finding that the Estate would be debarred from recovering that portion of land from the Plaintiff. See section 12 (2) of the Limitation Ordinance, Cap.198.

I concluded that on the 25th October, 1979 the land on which the Defendant entered belonged to the Plaintiff. Further, that the sign which he removed stood on that land. I accordingly hold that the Defendant trespassed on the Plaintiff's land on that date.

The Plaintiff is entitled to damages. No question was raised as to any loss or damage resulting from the acts concerned and the Plaintiff's case was concerned merely with establishing his right to an area of land. He will, therefore, be awarded nominal damages in the sum of $150.00. He also asks for an injunction restraining the Defendant from repeating the acts complained of and will get an injunction accordingly. He is to have his costs.

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