Brown v Rolle
| Jurisdiction | Bahamas |
| Judge | Hall, J. |
| Judgment Date | 16 September 1994 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 864 of 1990 |
| Date | 16 September 1994 |
Supreme Court
Hall, J.
No. 864 of 1990
Mr. B. Moree, with Mrs. Terri Bellot, for plaintiff
Mr. A. Hanna for defendant
Real property - Possessory title — Whether the defendant has dispossessed the plaintiff of his documentary title to a small cay — Defendant claimed to be in continuous possession and still in exclusive possession of the said cay since 1964 — Defendant paid rent up to 1989 and could not have acquired possessory title to the land — Defendant established that the title of the plaintiff and his precedent was extinguished — S. 3 & 34 of the Limitations Act, (Ch 70) — Crown as landlord and rent ordered to be continued to be paid.
The narrow issue in this case is whether the defendant has disposed the plaintiff of his documentary title to a small cay in the Exumas.
By his statement of claim, the plaintiff seeks a declaration entitled in fee simple absolute to two “Cays or Islands situate immediately northward of ‘Kemp Cay’ or ‘Little Pipe Cay’ … in the Exumas Group of Cays,” an injunction restraining the defendant from trespassing on the two Cays, an order that the defendant remove certain structures erected on a portion of one of the two cays, and damages.
The defendant pleads that he is the owner in fee simple of the cay “called and known as Hattie Cay and bearing the local name of Tucker's Cay… as the plaintiff was dispossessed of the said Cay by the defendant and since the year 1964 the defendant has been continually and still is in exclusive possession of the said cay”.
On 8 June 1966, for a consideration of $40,000, the Crown or “Little Pipe Creek”, along with two smaller cays — together approximately 34 acres — to Neville Brown and Helen Brown as joint tenants. Neville Brown, brother of the plaintiff's father, died on 10 December, 1969 and Helen Brown died on 18 February 1988. The personal representatives of the estate of Helen Brown, in the course of her estate, conveyed the two smaller cays to the plaintiff for the consideration of $15,000 on 27 February 1989. According to the plaintiff, the arrangement by which he came into possession of the cays was that it was a “wedding gift” to him from his aunt, Helen Brown, and that one of the co-personal representatives of his late aunt's estate was her sister.
[Note: Of the three cays comprised in the Crown grant, the largest is sometimes called “Little Pipe Creek” and sometimes, “Little Pipe Cay”. For consistency, I will use “Little Pipe Creek” as that is how it is referred to in the crown grant. Of the remaining cays, the larger alone is the subject of dispute and, I will refer to it simply as “the Cay”. When reference has to be made to the smallest of the three cays I will refer to it as “the small cay”.]
The plaintiff says that he is very familiar with the Exumas as he has been visiting the area since he was about 5 years old when he went down on his father's sea-plane. His father is, like the plaintiff, a realtor, and managed many small islands for their non-resident owners. Their practice was to fly over the entire area. His visits were as few as 5 to 6 times a year to as frequent as 20 to 30 times a year. Occasionally he went down by boat and, on those occasions, he had passed within 100 feet of the cays.
While he had known that his uncle had owned Little Pipe Creek in the 1960's he did not know the smaller cays were owned by his aunt Helen's estate until in 1986 when he was taking photographs of the area for Esquire magazine and he observed certain structures on the Cay. Prior to 1986 there were no structures on either of the smaller cays. In September of 1987 his aunt had told him that she would give him the cays as a gift.
He describes the smaller cay as being about 400’ — 500’ in length and 100’ in width. He has never been on the smaller cay: the nearest he has been to it is while at one of the structures on the Cay — which is about 300 to 400 ‘away.
The is about 1200 to 1500 feet in length and about 150 to 180 feet at its widest part. It would take 20 to 25 minutes to walk around the foreshore. Its vegetation is scrub bush.
The plaintiff says that he first became aware of the defendant's claim in May of 1987 when Mr. Godfrey Kelly alerted him and provided him with certain photographs including that of a gazebo, which had been constructed on the Cay. The plaintiff himself had first seen structures on the Cay in doing the Esquire project but as previously indicated, at that time he had had no interest in the ownership of the Cay. At this time he had been taking photographs of another cay.
In 1989 the plaintiff arranged a meeting with the defendant: they met at a Younder Cay where the defendant was working on his boat. The plaintiff got the impression that the defendant was claiming to have leased the cay form the crown and he asked the plaintiff whether he had seen Mr. Garraway at the Department of Lands and Surveys. The defendant claimed to own the Cay although he said at the same time that he was leasing it. The plaintiff offered the defendant $15,000 cash for the house and gazebo, which he had built on the Cay; the defendant's only response was to enquire of the plaintiff whether he was “crazy”. There have been no subsequent meetings.
The plaintiff says that he has only been on the Cay on one occasion: when a site survey was being done. This is not remarkable — according to the plaintiff — as he owns several properties, which he has never set foot on and some of which he has never seen.
In cross-examination, the plaintiff said that, before 1986, he had last seen Cay in 1982 when he had flown over it at a height of 400 to 500 feet. When he flew over the islands he looked to see what development was going on.
He had begun to pass the Cay in the early 1980's and it was that his aunt decided to give the Cay to him. He had always been aware of his family's interest in Little Pipe Creek and he had begun to pay attention to the other two Cays because of their proximity to Little Pipe Creek.
Who had been his aunt's attorney, had identified the defendant to him (the plaintiff) when he had made his report in 1987. When the plaintiff had seen the structures in 1986 he did not know who was responsible for creating them.
On his one visit to the Cay he remained at the western end; he has never crossed it on foot. However, he has passed it on all sides on different occasions.
If goats had been kept on the Cay, they would have eaten the scrub down to ground level, in the plaintiff's opinion. In any event, in his experience as a realtor, the area is not suitable for farming and could only sustain 3 to 5 sheep or goats. The Cay is basically rock: there is no soil or white land. He has never observed anything in the nature of fruit trees. Indeed, he supposes that the salt air would make it very difficult to grow anything.
Mr. Ian Anthony Mabon, who has been friendly with the plaintiff since boyhood, testified that he is familiar with the area and has vacationed often in the Pipe Creek area in his boat. He started visiting the area between 1979 and 1980. His wife collected shells from a sand spit off one of the cays. He has been to the area four or five times, and generally spent four days to a week in the area. He has never set foot on the Cay: he was within a few yards of the north side in the deepwater channel. He had tied up at Little Pipe Creek and has approached the Cay from the western end. He has been all around it and describes it as being four to five feet high with no major trees or vegetation. He has never noticed any fruit trees.
Prior to 1979/1980 there were no structures on the Cay: no sign of activity. It was barren. He first saw a structure in the summer of 1983: a small thatched roof structure at the western end. In 1981 or 1982, when he would have passed he would not have observed any such thing. At his last visit in the summer of 1986 there was another structure in the centre of the island — foundation, uprights and a roof, without sides.
In cross-examination he admitted that he could only see what was visible around the Cay: he had never been on the inside of the Cay.
Mr. Percival Knowles testified that he has been familiar with the Pipe Creek area since 1969. He has never set foot on the Cay but has been very near in a 15 foot Boston Whaler. He would pass by the Cay as a short cut and the channel is very close to its western tip. In 1969 there were no structures on either cay. The only thing visible was law shrubbery. In 1986 on a conching trip he observed a structure at the eastern portion of the island. In 1991 he noticed a thatched hut at the western end.
Mr. Godfrey Kelly, Counsel and Attorney of the Supreme Court, who is well acquainted with the plaintiff and his family, testified that he has at least once a year for the past 30 years. He is familiar with the Crown grant to the uncle of the plaintiff because he had it in his possession for a number of years. The Brown's had sold Little Pipe Creek to a client of Mr. Kelly sometime in the later 1970's or early 1980's.
The Pipe Creek area is a popular area for boaters and when he visited between 15 and 17 May 1987 he was greatly surprised to see the instructions, a gazebo at the end of the Cay bearing a sign “Hattie Cay”. He saw four young boys from Black Point who said that their father owned the Cay.
Mr. Kelly does not recall having seen any buildings there before that time. He used to pass fairly close to the Cays and, as with all of the islands, one would be on the look out for buildings to see what development had occurred since the last visit. He had never noticed any buildings on the Cay before and the photograph of the gazebo was taken by his wife and he appears in that photograph which is exhibited.
Geoffrey Brown, realtor, another uncle of the...
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