Shillingford v Attorney-General

JurisdictionDominica
JudgeLewis, C. J.
Judgment Date17 June 1968
Neutral CitationDM 1968 CA 2
CourtCourt of Appeal (Dominica)
Docket NumberCriminal Appeal No. 7 of 1966
Date17 June 1968

Court of Appeal

Lewis, C.J., Gordon and Cecil Lewis, JJ. A.

Criminal Appeal No. 7 of 1966

Shillingford
and
Attorney-General
Appearances:

K. Alleyne, Q. C., C. Beausoleil and B. Alleyne with him, for the appellant.

E. F. Gratianen, Q. C. (U. K.), B. Niles and E. D. Mottley with him, for the respondent.

Real property - Recovery of possession

Lewis, C. J.
1

In this case the respondent sought to recover from the appellant certain portions of land totaling 486 acres incorporated in 776 acres of land situated in the parish of St. Joseph comprised in a certificate of title in respect of the Batalie Estate or Plantation dated 14 th November, 1951, issued y the Registrar of Titles to the appellant and registered in Vol. R. folio 126, and to have the certificate of title rectified accordingly. Annexed to the certificate of title so as to form part thereof is a plan of the survey of the 776 acres of land prepared by Hughes Shillingford, a licensed surveyor, which survey was carried out between the 19 th July and the 8 th August, 1941. It is not in dispute that the appellant is and was at the time of the issue of the certificate of title in possession of all the land shown on the plan. The respondent claimed a declaration that the 486 acres are the property of the Crown in its right of the Government of Dominica, and briefly it may be stated that the basis of his claim was that an exhaustive search of the records in the Lands Registry disclosed that these lands had originally formed part of the Crown's domains and had never been alienated to the appellant or any of his predecessors in title, and that the true acreage of the Batalie Estate is 290 acres. Reliance was placed upon searches made by the witnesses Albert Matthew, a legal assistant in the Attorney-General's department, and Karl Winski, a licensed surveyor.

2

The certificate of title was issued to the appellant on the basis of a request supported by a deed of conveyance from Eleanor Margaret Macintyre and others to him dated 31 st May, 1941 and recorded in Book of Deeds “Q” No.7 folios 487-491. In this deed the land conveyed is described as “all that estate lands and premises known as the Batalie Estate together with the King's Three Chains containing 652 acres.” In the abstract of title exhibited with the request the difference between this 652 acres and the 776 acres stated in the request was reconciled by the statement “other lands the property of the applicant being included”.

3

The lands claimed by the respondent comprise certain parcels of the Queen's Three Chains and six parcels of land, of which four lie to the south and west and the remaining two to the north, of the 290 acres of land which the respondent alleged alone compose the Batalie Estate and of which the respondent by his statement of claim conceded the ownership to the appellant. On a copy of Shillingford's plan ( Ex. 29A) prepared and put in evidence by the respondent's witness Karl Winski, these six parcels are identified and marked out by Winski and numbered 1 to 6, and their acreages are stated as follows: No. 1 – 100, No. 2 – 60, No. 3 – 60, No. 4 – 64, No. 5 – 93, No. 6 – 24: a total of 401 acres. Winski also marked out on exhibit 29 a number of contiguous parcels of land which the respondent contends are the only parcels truly comprised in the Batalie Estate. These he identified on the plan by colours, their acreages being: Green – 122, Red – 116, Yellow – 42, Grey – 12: totaling 292 acres. A part of one of the parcels coloured green lies outside the northern boundary line as drawn by Shillingford and was drawn in by Winski. On Shillingford's plan this is shown as belonging to Julia Jules and others, and this portion of land is not included in the certificate of title. Winski also identified three portions or the Queen's Three Chains comprising some 9 acres which were the subject matter of two grants to the owners of the Batalie Estate in 1855 and 1867 respectively. Thus, according to Winski the lands shown on Shillingford's plan, including the portion lying outside the northern boundary referred to above, total 702 acres and not 776 acres as stated by Shillingford.

4

It appears from the evidence that the Batalie Estate or Plantation derives its name from the Batalie River which flows Westward through the parish of St. Joseph and empties into the Batalie Bay. The plantation seems to have been established by William Sinclair who in December 1794 purchased from the Provost General four parcels of land lying to the North and South of the Batalie River ( Ex. 2) namely, a plantation of 82 acres and 3 other parcels, the whole totaling 116 acres. These are the parcels coloured Red on Ex. 29A. These lands were at the time of his purchase held as leasehold, and 40-year terms, and are referred to as a leasehold plantation in most of the recorded transfers of the Batalie Estate up to 1857.

5

After certain intermediate dealings this plantation was purchased by Robert Reid on behalf of himself, James Laing and John Lucas in December 1804, and added by them to an estate which they had recently formed of lands partly granted to them by the Crown – 122 acres, in July 1804 – and partly purchased from various persons – 42 acres and 12 acres respectively.

6

These lands are shown on the pan, Ex. 29A, coloured green, yellow and grey respectively. The Crown Grant of the 122 acres ( Ex. 4) takes the form of a grant of occupancy whereby licence and permission is given to the grantees “their heirs and assigns …. To use, occupy, possess and enjoy …. Forever” the lands granted, subject to certain conditions. One of these was a condition against assignment without the licence or permission in writing of the Governor, on breach of which the grant was to be “null and void to all intents and purposes whatsoever …” The records do not show how the parcels of 42 acres and 12 acres were acquired by Reid, Laing and Lucas; but a grant of the 12 acres to one Jean Perreau, his heirs and assigns in free and common socage was produced ( Ex. 3). No Crown grant or other conveyance in respect of the 42 acre lot was found in the Registry. These 176 acres have always been dealt with as freehold by the owners of the Batalie Estate.

7

The Crown's case was that the Batalie Estate consists only of the leasehold plantation of 116 acres and the freehold lands of 176 acres, and that the appellant has no valid title to the other lands shown on Shillingford's plan and included in the certificate of title.

8

The evidence established that Lain, Reid and Lucas acquired from the Crown two other parcels of land, both of which form part of the lands in dispute. One of these is a lot of about 100 acres lying to the South of the Batalie River and West of a portion of the leasehold plantation. The Crown grant to Laing and Reid ( Ex. 28) recorded 18 th July, 1812, recites a position by Laing and Reid stating that this lot “has for many years past been used as a pasture for the cattle of the” Batalie plantation. The grant is in terms similar to the 1804 grant of 122 acres. There is no record of any assignment of this lot. This is the lot shown as No. 1 on Ex. 29A. the Crown grant states and the plan annexed to the grant shows that this land bounds on its south-east with lands grunted to Pierre (or Peter) Larocque.

9

In respect of the other lot about 64 acres in extent, which Reid, Laing and Lucas seem to have acquired, no Crown grant or other conveyance has been traced, but the inference that it was granted to them about the same time has been drawn, conceded by the plaintiff, and so held by the trial judge, from references in the Crown Grant to Peter Larocque and the plan annexed thereto dated 24 th July, 1812 (Ex. 30). This lot, numbered 4 on Ex. 29A, is bounded on the North and West by the Batalie plantation and South by Peter Larocque's land.

10

Thus in July, 1812 Laing, Reid and Lucas appear to have been in occupation as owners, on freehold or leasehold tenure, of the coloured portions, totaling 292 acres and lots Nos.1 and 4 totaling 164 acres, in all 456 acres of land, in the immediate vicinity of the Batalie River.

11

In 1839 the trustees of the Estates of Laing and Reid conveyed to Anne Rose Levilloux by deed ( Ex. 19) the Batalie Estate which is therein described as composed of lands estimated to be 294 acres or thereabouts. The deed recites that the deceased were entitled as tenants in common by virtue of duly recorded conveyances and assurances; but there is no record of any transfer to Laing and Reed of Lucas's share in the estate. This deed purported to carry out an agreement made between Laing and the Executor of Reid's Estate on the one hand and the purchaser's late husband on the other hand. No mention is made in the deed of the lots Nos. 1 and 4. The estate is said to consist of the freehold portions of 42, 12 and 122 acres respectively and the “leasehold plantation”, which “with the several pieces or parcels of land adjoining and contiguous thereto …. called Batalie plantation” are said to contain 114 acres. The boundaries of the leasehold plantation are not given. This description of the Batalie Estate is repeated in the conveyances of the Batalie Estate up to 1857.

12

From 1839 to 1931 there is a continuous chain of title to these lands. This includes the will of a Dr. John Imray, who by deeds in 1850 and 1857 acquired the whole estate. By 1931 the Macintyre family, the vendors to the plaintiffs, had acquired all interests in the Batalie Estate by virtue of Dr. Imray's will and certain conveyances. This chain of title does not mention lots Nos. 1 and 4.

13

The learned trial judge found in effect that the respondent had established his case that Dr. John Imray at the date of his death in August 1880 had a documentary title in respect of the Batalie estate only to the lands shown as coloured on the plan “ Ex. 29A”, that is 292 acres. With this finding I...

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