Bowen v Jones
| Jurisdiction | Guyana |
| Judge | Luckhoo, J. |
| Judgment Date | 24 March 1948 |
| Neutral Citation | GY 1948 HC 8 |
| Docket Number | 431 of 1945 |
| Court | High Court (Guyana) |
| Date | 24 March 1948 |
High Court
Luckhoo, J.
431 of 1945
Sir Eustace G. Woolford, K.C., for plaintiff.
J. L. Wills, for defendant.
Evidence - Of surveyor — As to measurements taken by him — May be given — Even though in making survey — Section 20(1) of Land Surveyors Ordinance, Chapter 167, not complied with — Immovable property — Part of a parcel of land taken over by local authority for use as a street — Diminution thereby of land of proprietor — Land of proprietor not adjacent to street unaffected.
ACTION by Albertina Bowen against Frances Elizabeth Jones claiming (a) that she was the legal owner and entitled to the possession of a certain parcel of land unlawfully and illegally occupied by the defendant, (b) an order to compel the defendant to remove a building and paling on the said parcel of land, an. (c) mesne profits for the beneficial use and occupation of the said parcel of land.
A surveyor may give oral evidence of measurements taken by him, even though in making his survey he failed to comply with section 20(1) of the Land Surveyors Ordinance, Chapter 167.
Lacon v. Matthews (1931–37) L.R.B.G. 516 .
By transport dated the 21st March, 1896, A. became the proprietor of S 1/2 of N 1/2 of lot 25, Wortmanville, Georgetown as defined on a plan by Prass dated the 29th October, 1885. The municipality of the city of Georgetown made a street running through, among other lots, 25 Wortmanville, and the street had the effect of reducing the depth of S 1/2 of N 1/2 of lot 25 Wortmanville. That quarter lot was subsequently purchased by B. at an execution sale which took place on the 23rd May, 1939 consequent on the non-payment of rates and taxes, and on the 1st July, 1940 B. obtained judicial sale transport for the quarter lot.
Held (1) that the portion of the quarter lot which was taken over by the Municipality as a street was excluded from the land for which B. had acquired title.
Belmonte's Petition (1893) L.R.B.G. 42; Gillis v. Seequar (1920) L.R.B.G. 35; and Madray v. Sealey (1940) L.R.B.G. 124, applied.
(2) that whatever possessory rights B. enjoyed prior to the date of the execution sale, such rights were extinguished by the sale.
Incorporated Trustees v. McLean (1939) L.R.B.G. 182 .
The plan approved by the Governor in Council under Ordinance N 30 of 1902 authorised the making of a street, and thus interfered with the rights of adjacent property owners, but it in no way affected the owner ship of land not adjacent to the street.
Proprietary rights should not be held to be taken away by Parliament without provision for compensation unless the Legislature has so provide in clear terms.
Consett Iron Co. v. Clattering Trustees [1935] 2 K.B. 42, 65 .
Statutes which encroach on the rights of the subject, whether regards person or property, are subject to a strict construction; an where an ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the Legislature which has failed to express itself. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights.
Walsh v. Secretary of State for India (1863) 10 H.L.C. 367 .
The plaintiff is the owner by Transport dated the 1st day of July, 1940, of the south half of the north hall' of lot number 25 (twenty-five) Upper Norton Street, in the Wortmanville District in the City of Georgetown, with the buildings and erections thereon, and alleges in her Statement of Claim that she is the legal owner and entitled to the possession of a certain piece of land occupying an area of 442.15 square feet which she asserts is being unlawfully and illegally occupied by the defendant, such piece of land forming part of the south half of the north half of the lot contained in her title. She also claims an order to compel the defendant to remove a certain building and paling which encroach on her said property, and payment by the defendant to her of a sum of $480:- as mesne profits for the beneficial use and occupation by the defendant of the said piece of land encroached upon since the month of April, 1937.
The defendant who holds transport in her name bearing date 11th June, 1935, for the north half of the north half of the said lot as shown and described on a diagram of what was formerly a section of Lodge Village and now called Wortmanville District part of the City of Georgetown, by John Peter Prass, Sworn Land Surveyor, dated 29th day of October, 1885, and deposited in the. Office of the Registrar of British Guiana on the 11th day of December, 1885, disputes the allegations of the plaintiff and claims that the said piece of land complained of is comprised within her title.
That in my opinion is the simple issue in this case. The defendant, however, ex majore cautela, has pleaded that she and her predecessors in title of the north half of the north half of the said have for the period of 30 years and upwards next preceding the commencement of this action enjoyed as of right neck vi, neck clam, precarious, possession of the piece of land in question, which if Wished would bar the plaintiff's right, if any thereto, and/or bring the action to recover the piece of land as the right to do accrued more than twelve years before the commencement of the action, claiming all the benefits conferred by the Civil Law British Guiana Ordinance, Chapter 7 and the Limitation Ordinance, Chapter 184.
The plaintiff not to be ousted of her alleged right by these preventive forms of plea traced in her reply the possession undisturbed of her predecessors in title up to at least the month of April, 1937, a period of less than twelve years prior to the commencement of this action on the 16th October, 1945.
At the time Prass made his diagram all the lots running north to south between D'Urban Street and Princes Street and what is now known as Hayley Street on the East and Hardina Street on the West were of equal length and width. According to Sworn Land Surveyor Insanally's measurements on the ground using Prass' diagram the length of each lot was 605.4 English feet and the width 37 feet. At that time there was not in existence what is now known as Upper Norton Street which takes its course almost through the centre of those lots from West to East connecting Hardina Street with Hayley Street. Upper Norton Street was laid out subsequent to the 20th January, 1902, by Luke Hill who was then the Town Superintendent and City Engineer of the Municipal Corporation of the City of Georgetown, this outline diagram showing the proposed line that street would take.
Long before the year 1902, the original owners of several lots falling between Hardina and Hayley Streets, began to dispose of portions of the same. On the 13th day of February, 1897, Antoniqua Pereira, a widow, became the owner by Transport of the north half of the north half of lot 25 (twenty-five) part of Plantation Werk-en-Rust, as described on Prass' diagram dated the 29th October, 1885. The documentary evidence in this action discloses that that very portion of land so described became vested In the defendant by transport as above stated. It does not appear from any record and there is no evidence that the delimits of the boundary of the North half of the North half of the lot so originally transported were ever questioned until the year 1937, when Counsel for the plaintiff on the 27th day of April, 1937, in a letter on behalf of his client to the defendant complained that the defendant Was in possession of 12 (twelve) feet (meaning in length by the ‘Whole width of the lot) of the plaintiff's land.
In so far as the south half of the North half of the lot was concerned one Joseph Rotheram Griffith on the 21st March, 1896, obtained transport from Antoniqua Pereira abovementioned and one John Rodrigues for the South half of the North half of lot 25 (twenty-five) part of Plantation Werk-en-Rust, as described on Prass' diagram of the 29th October, 1885, so that on the 21st March, 1896, and on the 13th day of February, 1897, both Joseph Rotheram Griffith and Antoniqua Pereira held transports in their respective names of the South half of the North half, and the North half of the North half of lot 25 (twenty-five) part of plantation Werk- en- Rust, as described on Prass' diagram. Measurements on the ground in accordance with Prass' diagram made on the 12th November, 1946, by S. S. M. Insanally, show that whole length or depth of lot 25, is 605.4 English feet and the width 37 English feet, and that before Upper...
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