Dec 1, 2014
Facts: -Narrow strip of land 8ft by 15 ft running between residential property of respondent and business property of appellant (Driveway, garage, grassy area and walkway)-Respondents took their property in 1973 subject to right of way of appellant’s over strip of land at issue and appellant’s obtained right of way through chain of title to own property Issue: whether respondent’s possession challenged in any way the right of the legal owner to make use of the property he wished to make of itHolding: Appeal allowed and respondent can only declare appellant’s title extinguished on portion of land occupied by garageReasons:-Test is not whether respondents exceeded their rights under right of way but whether they precluded the owner from making the use of their property that he wanted to make of it -Acts relied on as dispossessing true owner must be inconsistent with the form of enjoyment of the property intended by true owner – this is test for adverse possession -Onus on establishing title by possession on claimant is harder when on property pursuant to grant from owner -Relies on Pflug and Pflug v Collins -Case made clear person claiming a possessory title must establish oActual possession that the statutory period by themselves and those through whom they claim oSuch possession was with the intention of excluding the owner or persons entitled to possession oDiscontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession -If any one fails, claim fails -Respondent fail in both 2 and 3