MARTINUS IN PHILLIP et al v MATTHEW DENIS

, '\ " SAINT LUCIA IN THE HIGH COURT OF JUSTICE "'", ---;;;;;;==;;;;;;;;.......- (Civil) A.D. 1998 SUIT NO: 406 of 1992 Between:

1.MARTINUS IN PHILLIP

2.JOAN IN PHILLIP PLAINTIFFS AND MATTHEW DENIS DEFENDANT 1997: JANUARY 30 FEBRUARY 6 AND 12 1998: APRIL 9 AND 20 JUDGMENT Appearances: Mr D Theodore for Plaintiffs Mr L Riviere for Defendant d' Auvergne, J By a writ of Summons indorsed with a Statement of claim filed on the 21st day of September, 1992 the Plaintiffs claimed against the Defendant the following:- (1) A declaration that the said staircase is situated on premises belonging to the Plaintiffs. (2) An injunction ad interim and perpetual, restraining the Defendant, whether by himself, his servants, agents or otherwise from demolishing, or continuing to demolish the said staircase and from hindering the Plaintiff's access over the said staircase. (3) Damages. (4) costs. The following day an appearance was entered on behalf of the Defendant I pause here to note that before tile filing of tile above mentioned writ, an application for an Ex Parte Order of Injunction supported by an Affidavit of the first named Plaintiff was filed, heard and granted on the 24th day of August, 1992. That Order granted was entered on the following day and it reads as follows:- "1. That the defendant be restrained and an injunction be hereby granted restraining Ilinl, whether by hil11self, Ilis servants or agents, from:- (1) demolishing or continuing to demolish the wooden staircase adjoining the Plaintiffs' premises at Block 003'1 C 626 (2) hindering the Plaintiffs' access over the said staircase to the Plaintiffs' premises and in particular that the Defendant do unlock the nletal gate erected by hin1 until tl1e deterrnination of the suit to be filed by tile Plaintiffs on or before 21st september, 1992. (3) tllat this matter is returnable on 23rd september, 1992. On the 23rd day of September, 1992 the returnable date set for the hearing of tile Ex Parte Injunction granted on the 24th day of August, 1992 after arguments IJY botll Counsel. It was ordered - "that the injunction granted herein by order dated 24th August, 1992 against the Defendant Matthew Denis should be and is hereby continued inforce until the determination of this suit. " That Order was entered on tile 3rd of November, 1992 and on the 6th of November, 1992 a defence was filed on betlalf of the Defendant. On the 29th day of April, 1993 Notice of Motion for Conunittal for contempt of Court was filed against the Defendant The Motion supported by an affidavit of the first Plaintiff, was Ileard on the 18th day of May, 1993 and the order granted was "That the Defendant be fined $500.00 to be paid by 31st May, 1993, in default 2 weeks in ilnprisonnlent provided that tIle Defendant shall not be obliged to pay the said fine so long as he opens the metal gate adjoining the Plaintiff's premises at parcel 0031 C 626 by 12:00 p.m. on wednesday 19th May, 1993 and keeps it open until tfle determination of this suit. " A request for hearing was filed on the 5th day of November, 1993 and after many adjournments, to facilitate the Defenda in some form or other, tile matter was part heard on tile 30th day of January, 1997 and completed on the 6th day of February, 1997. On the 12th day of February, 1997 the court visited the Locus in quo and the matter was adjourned to the 10ttl day of 1997 for addresses. Once more, after many adjournments on behalf of ttle Defendant the matter was finalized on tile 9th day of April, 1998 with judgment reserved. FACTS OF THE CASE The Plaintiffs became tile owners in possession of Block 0031 C Parcel 626 in tile Registration Quarter of Soufriere on tne day of May, 1988 and the Defendant of the adjoining piece of land known as Block 0031 C parcel 627 on tile 26th day of Aug 1988. From the evidence it appears that the parties had peaceful occupation of their respective properties until 23rd day of July, 1992 wnen the Defendant erected a metal gate across ttle said staircase on which tle placed a locked padlock. On tllat very (1ay the Plaintiff caused a letter to be served on tile Defendant requesting tile removal of tile said gate within seven (7) days upon receipt of the letter. The Plaintiffs alleged that instead of removing tile said gate tile Defendant commenced the demolition of the said staircase. In order to appreciate the enfolding of tile facts of the case, it is important that the history of the facts be set down in sequence. The Plaintiffs' property was formerly owned by tile Soufriere Town Council WllO sold to Thelma Hennecart (who in turn sold to the Plaintiffs) on the 18th of August, 1960. The sclledule to Thelma Hennecart's deed of sale reads as follows:- "A lot of land comprising an area of One thousand six hundred and eighteen square feet more or less situate at Bay street in the Town of Soufriere, the said lot being set out and bounded as fol/ows:- North by an area used as a Bus stand, SOUtll by a lot and building formerly the Soufriere Police station, East by Bay street and west by Lower Bay street. Together with tIle building erected tflereon formerly used as a post Office and all other tIle appurtenances and dependencies thereof, including especially the wooden staircase forrnerly used as a common entrance to tl7e upper storey of the said building hereby sold and to the said former police Station. " It is significant to note the words "all other the appurtenances and dependencies tllereof, including especially the wooden staircase formerly used as a con7mon entrance to tIle upper storey of the said building hereby sold and to tIle said fornler police Station. " The identical Schedule noted atJove is to be found in the deed of sale by Thelma Hennecart to the Plaintiffs, whereas the Schedule to the Defendant's deed only states the usual "together with the building erected thereon and all other the appurtenances and dependencies tflereof. " AS stated earlier an injunction was granted to the Plaintiffs against the defendant demanding tllat the said iron gate remain open until the determination of the case. The Plaintiffs alleged and evidence was led which showed tllat the said staircase was interfered with and that it was no longer a wooden staircase but now comprises of wood and wall and that tile latter portion mentioned constitutes an encroachment on their property. Tt1e first Plaintiff gave evidence that 11e had suffered damage from the loss of rental of Ilis property; tllat on the many occasions that he has taken a prospective tenant to view the property, the Defendant would come out of his house and say in the presence of the prospective tenant "I an? tired of telling you this step does not belong to you, you are walking on the steps as if they are yours. I will injure you. " He told the court that Ilis last tenant terminated a monthlv lease of $3,000.00 monthly on the 23rd of September, 1994. The Defendant commenced his evidence by insisting tl1at tle knew tile boundaries to his property and that wllile it was true that he installed tile said iron gate and placed a locked padlock on it, he did so while the Plaintiffs' predecessor was still the owner of the adjoining property, tllat Ile gave a key to tile said predecessor Tllelma Hennecart and later on, to Colin Tennant, the Plaintiff's tenant. The Defendant further told the court ttlat his house was and still is a wall structure to whict1 Ile made some alterations such as removing wooden parts and replacing them with concrete b he denied making alterations which prevented one of the Plaintiffs' doors from opening from the outside. He vociferously denied that the door in question ever opened unto the outside but that it always opened unto the inside. ARGUMENTS Learned Counsel for the Defendant submitted tllat tt1e Defendant was only asking for what was stated in his deed of sale, namely, "and all other the appurtenances and dependencies thereof" and that the use of the wooden stairs or staircase was and is nothing but an appurtenance or dependencies. He argued that the Plaintiffs' had only acquired by tile purchase of their property the right to the use of the staircase not the staircase itself. He cited the meaning of an appurtenances from Stroud's Judicial Dictionary 2nd Edition and from Lister v Pickford (34 L J Ch. 582; 34 sea. 576) where Romilly, M. R. reiterated that "Land cannot be appurtenant to land" and that the word Appurtenances includes incorporeal hereditaments, such as rights of way, of common ... " He said that both parties used the right of way before tne Defendant restricted the use of the staircase. He also said that tile right to the staircase was specifically stated in the Plaintiffs' deed of sale but Sllould be implied in that of tile Defendant. Learned Counsel for the Plaintiffs submitted ttlat if the cou accepted the submission of Learned Counsel for tile Defendant then tile court should grant the Plaintiffs what tlley seek in tne statement of Claim save and except tile first claim (noted earlier). He urged the court to note ttlat tile extension to the Defendant's premises constituted a continuing Ilinderance to tile use of the Plaintiffs' property and that the staircase was specifically mentioned in tile Plaintiffs' deed as part of tne property sold to the Plaintiff. He stressed that the Eusden Generis rule does not apply, neither was any evidence led to show the subject matter was prescribed, or tllere was a servitude over tile staircase. He contended that the use of the staircase Sllould not be considered as an overriding interest since there was no evidence led by either the Defendant or his predecessors in title; that tllere was no survey to assist trle court to arrive at a conclusion as to what portion of land (that of the Plaintiffs or tr1at of tile Defendant) that tile staircase was constructed and still stands. CONCLUSION Having visited the site and from tile evidence led, it is clear ttlat the two properties were formerly one property which was later divided, sold and resold; at first tIle parties lived in harmony but after the erection of the iron gate Wittl locked padlock, disharmony stepped in. In Evans v Angell (1858) 26 Beav 202 Romilly, M.R., at 205 stated ttlat - "The word 'appurtenances' have a distinct and definite meaning, and tnougn it may be enlarged by tne context, yet tne burden of proof lies on tnose who so contend. Prima Facie, it imparts not/ling ITIOre than wllat is strictly appertaining to tne subject-nlatter of t/le demise or grant, and which would, in trutn pass witnout being specially ITIentioned.1/ In Lister v pickford (1865), 34 Beav 576 Romilly, M.R. at page 580 again said - "It is settled by the earliest authority, repeated contradiction to the latest, that land cannot be appurtenant to land. Tlie word (appurtenances' includes all the incorporeal /lereditanlents attac/ied to tIle land granted or demised sucn as rignts-of-way, of comnion, piscary, and the like, but it does not include lands addition to tnat granted. " Thelma Hennecart tile predecessor in title to the property owned by tile Plaintiffs sold exactly what she bought and processed to the Plaintiffs; tllat the schedule to that deed of sale reads "and all otller tlle appurtenances and dependencies tnereof including especially tne wooden staircase forrnerly used as a cO/TImon entrance to tne upper storey of the said building nereby sOld . .. " The schedule to the Defendant's deed of sale simply states "together with the building erected ttlereon and all otller appurtenances and dependencies thereof." AS I see it, the appurtenance the wooden staircase is specifically mentioned in the Plaintiffs' deed of sale but is not in that of the defendant. On my visit to the site I saw that the wooden staircase is essential to the gaining of access to both so to that of the Plaintiffs since it is not only the entrance" as stated in the Plaintiffs' deed Of entrance to the property. Defendant has entrance. % . The authorities clearly show that an appurtenance specifically mentioned for it to pass with the conveyance devise. In my considered judgment the appurtenance wooden staircase does in fact pass unto the the Defendant. There is no doubt that the Defendant has his property which hinders appurtenance of the wooden by were accustomed to. In fact the Plaintiffs owned albeit a matter of months, before the Defendant definitely be pable of obstruction, or hinderance placed by enjoyment of the said appurtenance. I find it impossible to make a declaration situated on premises belonging to the parties tendered any survey plans which arriving at such a conclusion. The Plaintiffs a which showed the two (2) properties as two portions of land on Bay street in the Town of owned by the Plaintiffs as the old post Office and lot B by the Defendant as the Old police station. There is no doubt in my mind that the Plaintiffs' have damage from the hindering by the Defendant of access over tile said staircase but not the specific damages the Plaintiffs seem to be claiming from the evidence. My order is therefore as follows:- Both the Plaintiffs and the Defendant are entitled to the free use and access over the wooden staircase. That the Defendant do break down the concrete extension placed by him thus allowing the Plaintiffs to enjoy free use and access over the wooden staircase and the proper opening of the Plaintiffs' door which opens unto the staircase. That the injunction granted by order of the court dated 24th August, 1992 and confirmed on the 3rd of November, 1992 against the Defendant Matthew Denis is hereby made perpetual. Defendant is to pay $5,000.00 to the Plaintiffs as general damages and costs to the Plaintiffs to be agreed or otherwise taxed. --S~~ SUZIE d' AUVERCNE HICH COURT JUDCE

SUIT NO: 406 of 1992 D’Auvergne, J Delivered: 20/04/98