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Real Property - Adverse Possession (2). Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (Ont CA, 2023) the Court of Appeal considers the statutory basis of adverse possession (as opposed to the common law basis):(2) The Statutory Scheme for Adverse Possession Claims
[49] The appellants argue that the application judge’s decision deprives them of the protection afforded by ss. 4 and 15 of the RPLA and therefore should be rejected.
[50] Section 4 of the RPLA reads:4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it. [51] Courts have interpreted s. 4 of the RPLA as clarifying that adverse possession, where established at common law, will give rise to a limitation period of 10 years, after which the party engaging in adverse possession will gain rights over the land.
[52] Section 15 of the RPLA reads:15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished. [53] Therefore, where an adverse possessor of land maintains possession of the requisite character for a period of 10 years, s. 4 of the RPLA bars the remedies of the paper title holder with respect to that land and s. 15 of the RPLA extinguishes the “true owner’s” title to that land: see Teis, at para. 8.
[54] Section 16 of the RPLA contains an exception to the application of these provisions in favour of certain categories of public land, including public highways, and waste or vacant land of the Crown:16. Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown, whether surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation, commission or other public body, but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922. [55] It is common ground among the parties that the exception in s. 16 establishing immunity from adverse possession for certain kinds of public land does not extend to municipal parkland such as the Disputed Land. The application judge did not refer to this provision, or to the RPLA at all in her reasons. Although the RPLA was referred to in the materials in the proceeding below, the legislative scheme was not the focus of either party’s submissions.
[56] The appellants argue that the purposes of the RPLA must be kept in mind. While the statute does not contain any express statement of its purposes, the appellants rely on the well-accepted purposes of limitation statutes.
[57] The appellants rely on the Supreme Court elaboration of the three rationales for limitation statutes in M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at pp. 28-30: first, that statutes of limitations provide repose – that is, a point in time after which a potential defendant should free from accountability for “ancient obligations”; second, that parties should be relieved of potential liability based on stale evidence and relieved of concern over the preservation of evidence relevant to a stale claim; and third, that plaintiffs are expected to act diligently and not “sleep on their rights”.
[58] Similar to the analysis above with respect to the rationale for adverse possession having less, if any, application in the context of municipal parkland, so too the rationales for limitation periods in the context of adverse possession of municipal parkland are attenuated, if relevant at all. Municipal parkland is property held for the benefit of the public. This is not an ancient obligation but an ongoing one. Further, a significant evidentiary component in a case such as this will be municipal records, the retention of which is subject to statutory rules. Finally, a municipality which is unaware that private property owners have fenced off a portion of parkland cannot be said to be sleeping on their rights by not addressing the encroachment. The purposes of the RPLA are not advanced by permitting adverse possession of municipal parkland in these circumstances, nor are those purposes frustrated by applying a common law presumption against such adverse possession.
[59] The related question before this court is whether the exceptions in s. 16 of the RPLA are exhaustive, that is, whether by referring to certain types of public land as unavailable for the limitation periods arising from adverse possession (i.e., waste or vacant land and land for roads and public highways), all other public land must be available in the same way as private land for adverse possession.
[60] Under this implied exclusion approach, had the legislature wished to treat municipal parkland different than private property, it could have done so, just as it did with respect to vacant and waste Crown land under s. 16. Having not done so, any public land not covered by s. 16 would fall into the general application of the limitation period in relation to adverse possession in ss. 3 and 4 of the RPLA. In other words, under this argument, s. 16 was intended to serve as a complete code with respect to public land exempt from availability for adverse possession.
[61] The appellants contend that the application judge’s decision, in effect, amends s. 16 of the RPLA by adding a further exception from the application of the Act where public parkland is the subject of an adverse possession claim. As the appellants contend in their factum, “The RPLA does not provide that municipal parkland is immune from a claim in adverse possession. The Appellants submit that the findings of the Application Judge limit the application of the RPLA in direct contradiction to the grammatical and ordinary sense of its relevant provisions (i.e., ss. 4, 15 and 16 thereof), its scheme, its object and the intention of the Ontario legislature.”
[62] I do not read the application judge’s reasons in that way. Rather, the application judge found adverse possession of the Disputed Land inappropriate based on the common law analysis. While she framed this finding as “immunity” from adverse possession, I have explained above why and how I would reframe the common law analysis as giving rise to a rebuttable presumption that municipal parkland is unavailable for adverse possession rather than a complete bar. Therefore, the necessary question to which the application judge’s conclusion gives rise is not whether a further exception should be read into s. 16, but rather whether the RPLA precludes the development of the common law of adverse possession in relation to public land which is not covered under s. 16. As I explain below, in my view, the development of the common law in relation to public land is not precluded by the RPLA. . Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (Ont CA, 2023) the Court of Appeal considers the application of adverse possession law to government land:The Development of the Public Benefit Test in the Common Law of Adverse Possession in Relation to Public Lands
[23] Faced with the fact-specific analysis of adverse possession in the context of municipal land, where it is generally not available for adverse possession but where no complete bar or immunity is applicable, courts have developed a “public benefit” test to determine whether the municipal land at issue is immune from adverse possession.
[24] In Hackett v. Colchester South (Twp.), 1928 CanLII 8 (SCC), [1928] S.C.R. 255, Duff J. stated in obiter remarks he was “much impressed” by the proposition that lands dedicated to public use and duly accepted by a municipality give rise to rights of enjoyment by the general public. He characterized these rights as “closely analogous to the rights of the public in respect of a public highway”, and the title of the municipality in such lands should not be capable of being nullified by claims of adverse possession: at p. 256.
[25] In light of Colchester, subsequent decisions rejected adverse possession claims against municipal lands, reasoning that it is inconsistent with the “high public interest purpose” to which those lands were or could be put: Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.), at para. 13, and Prescott & Russell (United Counties) v. Waugh (2004), 15 M.P.L.R. (4th) 314 (Ont. S.C.).
[26] In Prescott & Russell, Charbonneau J. found that municipal land that had been acquired for public forestry purposes could not be lost by adverse possession any more than the rest of the forest into which that land had been incorporated. Charbonneau J. held, at para. 21:When a municipality acquires lands for forestry purposes a very high public interest purpose arises as can be seen by the meaning the legislature has ascribed to that expression. It makes eminent sense that, in order to protect this vital public interest and as a matter of public policy, lands held by a municipality in such circumstances cannot be the subject of a claim for adverse possession. [27] In Woychyshyn, at para. 13, Ray J. dismissed a claim for possessory title to municipal parkland registered to the City of Ottawa, reasoning that there is a high public interest in maintaining such lands:I have serious doubts that municipally owned land can be subject to a claim for possessory title. ... The Respondent’s evidence included a description of the complex procedures and processes required before municipal property can be disposed of. It suggests there is a high public interest in the preservation of municipal property. It should not be disposed of easily. A loss of property through adverse possession would be contrary to this high public interest. [28] In Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, Howden J. found that a lakeshore promenade owned by the Township, but used and maintained in part by owners of lake-front lots, was immune from adverse possession. In reaching this conclusion, Howden J. summarized these earlier precedents and proposed the following test, at para. 119:[L]ands held by a municipality other than as public road allowances which meet the following factors are immune from claims of neighbouring landowners based on prescriptive rights or adverse possession:[(i)] the land was purchased by or dedicated to the municipality for the use or benefit of the public, or as here, for the use or benefit of an entire subdivision as well as the public at large; and
[(ii)] since its acquisition by the municipality, the land has been used by and of benefit to the public. [29] Howden J. set out the rationale underlying the “public benefit” test. He stated that land acquired by a municipality and used for public purposes should be understood as being held in trust for the benefit of the public, and therefore title over such land cannot be lost or extinguished by reason of ordinary acts or omissions associated with adverse possession. Howden J. found legislative support for this approach in the elaborate processes designated by statute governing when and how municipalities can sell or convey municipal property. He concluded that, given such property is owned by municipality by way of quality title for the public benefit, fairness and justice require that no two people should be able to deprive the public of that benefit.
[30] The approach developed in Warkentin to the “public benefit” test subsequently was adopted in Richard v. Niagara Falls, 2018 ONSC 7389, 4 R.P.R. (6th) 238, aff’d on other grounds, 2019 ONCA 531. In that case, a claim for adverse possession of municipal land was not made out because the applicants failed to prove that their use of the land was inconsistent with the city’s intended use. Henderson J., after citing Warkentin, stated in obiter, at para. 27:[I]n order to be immune from such a claim for adverse possession, the municipality must show that the land was purchased or dedicated for the use of the public, and that the land has been used by and of benefit to the public. [Emphasis added.] [31] In Richard, Henderson J. incorporated the “public benefit” test into the third factor of the test for adverse possession (i.e., whether the city was effectively excluded from possession). I note that this was an incorrect placement of the “public benefit” test, which is instead a limitation to some claims for adverse possession for public lands. However, I summarize here the approach taken in Richard to clarify the proper characterization of the common law test. In Richard, the court focused on the de facto situation, which in that case was that the city intended to allow the public to make use of the trail in question. While the court referred to the de facto use by the city, as opposed to whether the city had formally designated the disputed land as a park, Henderson J.’s formulation of the test introduces the possibility that if a claimant can otherwise meet the threshold for adverse possession – and there is no evidence the disputed municipal land is actually in use for the public – an adverse possession claim could succeed. For the reasons elaborated below, I would not accept this characterization of the common law test.
[32] As the appellants point out, some adverse possession claims against municipalities involving parkland have succeeded. For example, in Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), this court dismissed an appeal from a decision granting adverse possession to private landowners over a strip of land and laneway in a public park. The appeal was decided on the common law test of mutual mistake since neither the private landowners nor the municipality had argued different rules applied to the common law of adverse possession in this factual setting. Nonetheless, Laskin J.A., in obiter comments, expressed “some discomfort” over applying the ordinary rules of adverse possession to municipal parkland, at pp. 228-229:Most adverse possession claims involve disputes between private property owners. In this case, the Teises claim adverse possession of municipally owned land. I have some discomfort in upholding a possessory title to land that the Town would otherwise use to extend its public park for the benefit of its residents. Still, the Town did not suggest that municipally owned park land cannot be extinguished by adverse possession or even that different, more stringent requirements must be met when the land in dispute is owned by a municipality and would be used for a public park. This case was argued before the trial judge and in this court on the footing that the ordinary principles of adverse possession law applied. The application of those principles to the evidence and the trial judge’s findings of fact justify extinguishing the Town’s title to the ploughed strip and the laneway.
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Whether, short of statutory reform, the protection against adverse possession afforded to municipal streets and highways should be extended to municipal land used for public parks, I leave to a case where the parties squarely raise the issue. [Emphasis added.] [33] In my view, Teis stands for the proposition that it is open to a municipality to waive its presumptive title over parkland. While in Teis this was done through agreement that the “ordinary” rules of adverse possession applied, this waiver may also be accomplished by acknowledging a private landowner’s adverse possession and consenting to a transfer of title (as was done with the neighbour’s property in this case), or simply by a municipality acquiescing to adverse possession, where it has clear knowledge of its parkland property being adversely possessed by private landowners, and agreeing to take no steps to interfere with that adverse possession.
[34] Aside from those exceptional circumstances, the general rule that municipal parkland is not available for adverse possession has been given expression through the development of the “public benefit” test as set out above.
[35] The appellants argued before the application judge that the Disputed Land does not meet the public benefit standard because it clearly was not in public use over the relevant time period (as it had been fenced off by the previous owners of the property). The application judge accepted this position.
[36] On appeal, however, the appellants now argue that the “public benefit” test has not been endorsed by an appellate court and should be rejected entirely as inconsistent with the RPLA. For the reasons set out below, I do not accept this position.
[37] For its part, the City argues that the “public benefit” test is good law, but that the application judge was incorrect in finding its threshold was not met in this case. The City contends that the Disputed Land was expropriated for public use and private landowners should not be able to defeat that use by fencing off public land for private benefit. According to the City, as held by the application judge, municipal parkland of this kind should be treated as immune from adverse possession.
[38] I see the proper approach to adverse possession of municipal parkland lying between the two positions of the parties in this appeal. Under this approach, while municipal parkland is generally unavailable for adverse possession, it may become available exceptionally where the municipality has waived its presumptive rights over the property either expressly or by acknowledging or acquiescing to a private landowner’s adverse possession of parkland. . Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (Ont CA, 2023) the Court of Appeal considered the common law basis of adverse possession, and it's continued development:[1] Can private landowners gain title over municipal parkland through adverse possession? This is the central question raised on this appeal. The application judge answered this question by finding that municipal parkland is immune to adverse possession. While I would not accept such an immunity arises at common law, I conclude the application judge was correct in finding that the municipal parkland at issue in this case was not available for adverse possession. For the reasons that follow, I would dismiss the appeal.
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(1) The Common Law Scheme for Adverse Possession Claims
[13] In Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 17, Brown J. describes the common law basis for adverse possession as follows:Adverse possession is a long-standing common law device by which the right of the prior possessor of land, typically the holder of registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. From as early as The Limitation Act, 1623 (Eng.), 21 Jas. 1, c. 16, the prior possessor’s right to recover possession was curtailed by limitation periods. [14] Adverse possession at common law is established where the claimant had (i) actual, open, notorious, constant, continuous and peaceful possession of the subject land for the statutory period of 10 years; (ii) an intention to exclude the true owner from possession; and (iii) effective exclusion of the true owner for the entire 10-year statutory period: Billimoria v. Mistry, 2022 ONCA 276, 470 D.L.R. (4th) 406, at para. 27, citing Vivekanandan v. Terzian, 2020 ONCA 110, 443 D.L.R. (4th) 678, at para. 21.
[15] Canadian courts have treated adverse possession in the context of public lands at common law as distinct. In part, this is because the common law rationales for adverse possession between two private parties do not apply to publicly owned property.
[16] Scholars have posited three rationales at common law for adverse possession between private parties. First, the doctrine of adverse possession penalizes landowners who “sleep on their rights” and rewards the “working possessor” – the “reward-penalty” explanation. Second, based on similar reasoning, the doctrine encourages land to be put to its best, or most productive, use. Third, the doctrine encourages property owners to monitor their property and resolve any boundary, title, or other disputes, expeditiously, and in doing so, “protects the settled expectations of an adverse possessor who has acted on the assumption that her occupation will not be disturbed”: see Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), at pp. 141-45. See also Jeffrey E. Stake, “The Uneasy Case for Adverse Possession” (2001) 89 Geo L.J. 2419. None of these rationales have application against a municipal parkland.
[17] First, a municipal authority which allocates land-use according to statute cannot be said to “sleep on its rights” in relation to land designated as parkland, or for conservation or as an open space.
[18] Second, adverse possession cannot be said to result in better uses of land than those pursued by public authorities. As reflected in municipal zoning laws, there is an important public interest in the allocation of land for different uses, including land for transportation and industry, land for residential development and land for parkland, conservation or open spaces.
[19] Third, it is not realistic to expect a municipality to monitor the entirety of its land for signs of encroachment. As the application judge in this case observed, at para. 74, “The City is simply unable to patrol all its lands against such adverse possessors. The courts cannot demand the same vigilance of a private landowner to watch its borders of a public entity.” Further, where private parties object to the municipal zoning of particular land for particular uses, there are statutory dispute resolution processes which must be followed. Therefore, the rationale of encouraging monitoring and settling disputes also has little if any application in the context of adverse possession of municipal parkland.
[20] Indeed, it is difficult to identify any rationale for adverse possession against municipal parkland. However, save where adverse possession of public lands has been barred by statute, the common law has developed analytical approaches that leave open, at least in some circumstances, that adverse possession against such property remains possible.
[21] In his chapter on “Capacity to Hold and Deal with Interests in Land” in Anne Warner La Forest, Anger & Honsberger Law of Real Property, 3rd ed. (Toronto: Carswell, 2006), at §24:10, G. Thomas Johnson summarizes this principle as follows:Municipalities, cities and towns have the power to acquire property by dedication, by devise, and by prescription. A town council which is authorized to expropriate land for specified purposes cannot exercise that power for different purposes. Where legislation has prescribed the mode of acquiring property, any other mode of acquisition is excluded. For example, the power to acquire land for a housing project does not permit a council to acquire shares in the corporation which owns the necessary land.
The right of ownership in real property held by a city or town for the common benefit or use of its inhabitants or of the Queen’s subjects in general (i.e., a highway) is of such a public character that it cannot, as a general rule, be lost by adverse possession over the prescriptive period. [Footnotes omitted; emphasis added.] [22] In Hughes v. Fredericton (City), 1999 CanLII 9435 (NB KB), 216 N.B.R. (2d) 387, at para. 10, aff’d 2000 CanLII 10191 (NB CA), 225 N.B.R. (2d) 264 (C.A.), the court cited the emphasized passage above with approval. The court accepted, at para. 12, that at common law, municipal land zoned as parkland is held in trust for the public, and generally not available for adverse possession:I find that the entire portion of the land acquired by the City of Fredericton was zoned for parkland and there was a clear intention that it was acquired for public use. It would be difficult, if not impossible, for a claimant to acquire such land by adverse possession. As soon as the land was zoned for parkland for public use, it was held in trust by the City for the public. [Emphasis added.] ....
The RPLA Does Not Preclude the Development of the Common Law of Adverse Possession
[63] While s. 16 of the RPLA, first enacted in 1922, codified one aspect of this common law rule with respect to certain exemptions from the operation of ss. 4 and 15, in my view, nothing in the RPLA suggests it was intended to preclude the further development of the common law in public lands not of the kind categorized in that provision.
[64] The view that the RPLA was not intended as a complete code for the treatment of adverse possession of public lands is bolstered by considering the legislative history of the RPLA. The RPLA is an archaic statute, derived from 19th-century U.K. real property limitations statutes (i.e., the Real Property Limitation Act, 1833, 3 & 4 Will. 4, c. 27 (U.K.), as amended by the Real Property Limitations Act, 1874, 37 & 38 Vict., c. 7 (U.K.)): Graeme Mew, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at p. 376. While initially included in the law reform initiative that resulted in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the provisions dealing with real property were ultimately left unchanged and now form the RPLA. In 1991, the Ministry of Attorney General published a report titled “Recommendations for a New Limitation Act: Report of the Limitation Act Consultation Group”, which, at p. 49, put forward the changes to the limitation periods that would become the Limitations Act, 2002. This consultation group recommended that Part I of the old Limitations Act should be left to be reformed by a group with more expertise. That further reform process has not yet occurred.
[65] In McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 14-15, Rosenberg J.A., writing for the court, commented on the archaic nature of the RPLA. He considered and rejected the argument that because the RPLA referred only to express trusts, the legislature must be taken to have excluded constructive trusts, at para. 28:The appellant argues that since the legislation only refers to express trusts, the legislature could not have intended the Act to apply to other types of trusts, particularly constructive trusts. I do not accept this submission, primarily because of the legislative history. The old Limitations Act dealt in Part II with trusts created by instrument and by legislation. When the new legislation repealed Part II (and Part III) of the old Limitations Act, it left no express provision for real property held by trustees. The legislature apparently believed that in the case of express trusts there was the need for some clarification. At this point, it is impossible to know why the legislature did not deal more broadly with all kinds of trust. One can only guess that given the consultation group’s lack of expertise and the constant, indeed, rapid evolution of equitable trusts, the legislature was of the view that the area was not ripe for codification. I see nothing in the Real Property Limitations Act that suggests that the legislature intended to exhaustively deal with trust cases involving land. To the contrary, the legislative history suggests that the legislature intended to leave the area largely as it was. Thus, if s. 4 can fairly bear the interpretation of applying to recovery of real property through a constructive trust then I see no reason to impose an artificial and narrow interpretation on the section’s very broad language. [Emphasis added.] [66] In my view, a similar conclusion is appropriate with respect to s. 16. The fact that certain categories of public lands are recognized as immune from adverse possession, while remaining silent on other categories, does not preclude the continuing development of the common law of adverse possession in relation to public land.
[67] Additionally, no case was brought to our attention that adopts the expansive interpretation of the RPLA advanced by the appellants. To the contrary, this court has consistently held that the RPLA should be strictly construed to reflect the policy rationale underlying the limitation not “to promote the obtaining of possessory title” by adverse possession: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 574, quoting Harris v. Mudie (1882), 7 O.A.R. 414, at p. 421.
[68] Therefore, I would reject the proposition that the RPLA ousts the common law with respect to adverse possession in the context of municipal land other than land described in s. 16.
[69] While the RPLA should not be taken as a complete code with respect to the adverse possession of public land, s. 16 nonetheless must be given effect. Because s. 16 immunizes specific kinds of public land from adverse possession (i.e., vacant or waste Crown land or public roadways and highways), it follows that for other kinds of public land, no such complete bar or immunity is in effect.
[70] Should such full immunity from adverse possession be warranted, it falls to the legislature to consider the competing policy issues involved and enact changes to the RPLA, or otherwise. In Alberta, for example, s. 609 of the Municipal Government Act, R.S.A. 2000, c. M-26, provides that, “No person can acquire an estate or interest in land owned by a municipality by adverse or unauthorized possession, occupation, enjoyment or use of the land.” On December 15, 2022, Alberta abolished adverse possession altogether with the enactment of the Property Rights Statutes Amendment Act, 2022, S.A. 2022, c. 23. In British Columbia, a 2013 revision to the Limitation Act, S.B.C. 1975, c. 37, also abolished the acquisition of title through adverse possession entirely.
[71] In Ontario, the legislature significantly altered the real property landscape through the Land Titles Act, R.S.O. 1990, c. L.5 (“LTA”). As described below, by virtue of the LTA, it will be rare that disputes over adverse possession claims to municipal land arise.
[72] Section 51(1) of the LTA provides that, despite the provisions of the RPLA, no title, right, or interest in land that is registered under the LTA that is adverse to the title of the registered owner shall be acquired. Section 51(2) provides an exception to s. 51(1) if the adverse possession occurred prior to the first registration under the LTA, as is the situation in this case.
[73] The City Lands were converted to the Land Titles system on October 22, 2001, on a “qualified” basis, subject to pre-existing claims of possession as provided by s. 44(1) of the LTA. The parcel register for the City Lands states that first registration under the LTA is subject to “the rights of any person who would, but for the LTA, be entitled to the land or any part of it through length of adverse possession, prescription, misdescription or boundaries settled by convention”. The LTA, in other words, leaves open that the title over the City Lands is subject to adverse possession, but only in rare cases where the claims arose before registration under the Land Titles system, and as prescribed by the statute.
[74] As set out above, I conclude that where adverse possession against municipal land is at issue, other than municipal lands referred to in s. 16 of the RPLA, such claims will be resolved by recourse to the common law, according to the “public benefit” test. Under this test, claims in adverse possession against municipal parkland at common law generally will not be available, unless it can be shown on the evidence that the municipality waived its presumptive rights, or acknowledged or acquiesced to such possession. In this case, no such exceptional circumstances are present, as the application judge found that the municipality was unaware of the private landowner’s possession of the Disputed Land.
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