Gilbert v Phillips

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Glasgow, J.
• Judgment Date: 25 June 1971
• Neutral Citation: KN 1971 HC 2
• Docket Number: No. 35 of 1970
• Date: 25 June 1971

High Court

Glasgow, J.

No. 35 of 1970

Gilbert

and

Phillips

Appearances:

D. Byron for the plaintiff

L.L. Moore for the defendant

Trespass - Trespass to land.

Facts: The plaintiff sought damages in trespass from the defendant. The defendant removed a fence, which had been erected by the plaintiff on his land claiming that he had a legal easement over the land by virtue of section 3 of the Prescription Act, 1882, Cap. 60.

Held: The defendant trespassed on the plaintiff's land. Nominal damages of $300.00 awarded to the plaintiff against the defendant for removing the fence and for entering the land.

Glasgow, J.

1 The plaintiff's claim against the defendant is for damages for trespass. The plaintiff alleged in his Statement of Claim that on or about the 30th January, 1969 the defendant together with his servants and or agents unlawfully entered upon land in the possession of the plaintiff (hereinafter referred to as the said land) situate at Challengers Village in the Island of Saint Christopher and uprooted, tore down and damaged a fence which the plaintiff had erected on the said land in January, 1969.

2 The defendant stated in his Defence that at all material times he was in possession of a lot of land adjoining and abutting the said land and that he and his predecessors in title of the said lot had for forty years and more next before the beginning of this action enjoyed as of right and without interruption a way over the said land for the purpose of passing and repassing by himself his servants and licensees on foot at all times and for all purposes, and that he claims the right so to do as a legal easement of way under section 3 of the Prescription Act 1882 Cap. 60 of the Laws of the State. The defendant stated that for the purpose of the exercise of his said rights and not otherwise, he removed the fence which the plaintiff had wrongfully erected on the said land, doing no unnecessary damage in that behalf. The defendant counterclaimed for a Declaration and an Injunction.

3 During the trial, the following new paragraph was added to the Defence by leave of the Court: –

“5A. The defendant as a member of the public generally, or as a member of the public resident in Challengers Village, has used and enjoyed as of right a way over the said land claimed by the plaintiff, such members of the public having enjoyed the said right for a period in excess of 20 years.”

4 The plaintiff first started living on the said land in 1946 as a tenant in respect of a house situate thereon. One Geraldine Thomas, also known as Dini Coolie, was then the owner of the said land and of the said house. Geraldine Thomas died in 1953 and in the following year the plaintiff bought the said house and started to pay land rent in respect of the said land. The plaintiff lived in the said house on the said land from 1946 until 1960 when he went to St. Thomas, U.S. Virgin Islands, to work. The plaintiff's wife, who used to live with him on the said land, joined...