Adverse Possession

Law of the Land: Goode v. Hudon, 2005

No matter what kind of law you practice, brushing up on your geography skills can help you quickly get to the root of land based legal research. Read below to see how mapping and aerial imagery is being utilized in Canadian law:

Related: Law Of The Land

Adverse Possession: Goode v. Hudon, 2005

When one party has been continuously using abandoned land for a significant period of time, a claim for adverse possession can be made seeking to have the land deeded to them officially.

Overview

Clarence Island, located in the Ottawa River is inhabited by cottagers and also has parcels of vacant land. One such parcel of vacant land was owned by the estate of a deceased owner and appeared to be abandoned for 21 years. During that time it was used and maintained by various neighbours. The lot was eventually purchased from the estate by the defendants, who demolished a shed and built a fence that blocked the plaintiffs' water access.

The plaintiffs claimed they and their predecessors on title had used the land and the shed continuously for more than 10 years, so it should belong to them. They filed a claim requesting to be recognized as the rightful owners of the disputed land, removal of the fence to allow a right-of-way to access water, and damages for destruction of the shed.

Outcome

The plaintiffs were awarded damages for destruction of their shed. The claim for adverse possession was dismissed. By previously attempting to purchase the disputed lands from the estate, the plaintiffs acknowledged they knew who the owner on title was, and therefore could not claim in good faith that they believed the land was abandoned.

How Were Maps And Aerial Imagery Used In This Case?

As objective records of the past. 

Establishing Locations

Patterns of land use in photographic detail are quickly self-evident from aerial imagery. Aerial imagery was used to clearly show the physical arrangement of the properties, rights of way, and locations of structures at the heart of the dispute including the shed, fence, docks, and neighbouring cottages.

Establishing Timelines

Aerial imagery documents changes to the condition of a property at a snapshot in time. Since aerial imagery is collected continuously, a series of time stamped images of the same location can establish the order of events as the landscape changes.

The date stamped aerial image evidence could be used in conjunction with other records like ownership to determine who owned or accessed the land at times documented in the imagery. The information recorded in the imagery could be also compared to witness statements about when the shed was built, and whether the grass was cut or not and by whom. The memories of former neighbours called to testify were somewhat inconsistent.

Establishing The Condition Of The Property

Visual inspection is often enough to establish basic facts about the location. One central issue in this case is whether or not the land was in use, and continuously so. By assessing the physical condition of the land in the imagery it's easy to see if the grass was cut and a vegetable garden was established on the disputed land, verifying witness testimony, and if the dock and fence were kept in good repair. By assessing these conditions in a series of imagery from different years, it could be determined if these maintenance activities were continuous over time.

Furthermore, the claim for damages for destruction of the shed was supported through the use of imagery. Estimates for the value of the structure varied substantially. Photo maps can be used to measure the footprint of buildings, which can be useful as a proxy to estimate value, particularly as in this case, where the structure no longer exists to be measured directly.

Related: Top Three Ways Location Intelligence Helps Lawyers