Lazzari v Lazzari

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 24 July 1997
• Court: Grand Court (Cayman Islands)
• Date: 24 July 1997

Grand Court

(Harre, C.J.)

B.D. LAZZARI (as Executor of the Estate of E.E. Lazzari, deceased)

and

L. LAZZARI, F. LAZZARI and P. LAZZARI

R.N.A. Henriques, Q.C. and S.A. Roy for the plaintiff;

P. Lamontagne, Q.C. for the defendants.

Cases cited:

(1) Dalton v. Angus & Co.ELR(1881), 6 App. Cas. 740; [1881-85] All E.R. Rep. 1.

(2) Dances Way, West Town, Hayling Island, In reELR, [1962] Ch. 490; sub nom. Re Freehold Land in Dances Way, West Town, Hayling Island, Hants., [1962] 2 All E.R. 42, distinguished.

(3) Harley Dev. Inc. v. Inland Rev. Commr., [1996] 1 W.L.R. 727, dicta of Lord Jauncey of Tullichettle applied.

(4) Tehidy Minerals v. Norman, [1971] 2 Q.B. 528; [1971] 2 All E.R. 475, considered.

(5) Thoday v. Thoday, [1964] P. 181; [1964] 1 All E.R. 341, dicta of Diplock, L.J. applied.

(6) Thrasyvoulou v. Environment Secy., [1990] 2 A.C. 273; [1990] 1 All E.R. 65, followed.

Legislation construed:

Prescription Law (Laws of the Cayman Islands, 1963, cap. 131), s.2: The relevant terms of this section are set out at page 354, lines 31–41.

Registered Land Law (Revised) (Law 21 of 1971, revised 1976), s.138: The relevant terms of this section are set out at page 355, lines 1–15.

s.147(1): ‘The Governor or any person aggrieved by a decision, direction, order, determination or award of the Registrar may, within thirty days of the decision, direction, order, determination or award give notice to the Registrar in the prescribed form of his intention to appeal to the [Grand C]ourt against the decision, direction, order, determination or award.’

Limitation of Actions-interests in land-rights of way-20-year period of uninterrupted enjoyment required to prove acquisition of right of way or other easement by prescription or lost modern grant-time for acquisition by family member runs from date of registration following division of formerly undivided family land

Land Law-registration-appeals-defendant in action for trespass to land may not by counterclaim challenge earlier decision by Registrar of Lands refusing to register prescriptive right of way, against which no appeal made

The plaintiff, as the executor of his deceased father”s will, applied for an injunction to restrain the defendants from trespassing on land forming part of the deceased”s estate.

The first defendant and his brother owned a parcel of land situated on a bluff overlooking the deceased”s land. The first and second defendants owned two other parcels at the foot of the bluff. The defendants, who had the benefit of an easement across the Crown land forming the face of the bluff, installed a ladder reaching up the bluff face and constructed a footpath and a bridge on the deceased”s land leading to their own.

The grandfather of the plaintiff and first defendant had previously owned all the relevant land as undivided family property and, prior to the registration of the deceased”s land, the defendants had enjoyed access to a well on that land and passage across it to reach the face of the bluff. Some 15 years after the registration, the Registrar of Lands refused an application by the first and second defendants to register a right of way in favour of the land on the bluff, across the deceased”s land, allegedly acquired by prescription.

The Registrar ruled that the defendants had not shown 20 years” uninterrupted enjoyment of their right (as required by the Prescription Law, s.2) following the registration of the deceased”s title, when the land ceased to be undivided family land. The defendants did not appeal.

The plaintiff brought the present proceedings following the construction of the footpath, bridge and ladder, alleging trespass to the deceased”s land, and the defendants counterclaimed that they had acquired a right of way and the right to draw water from the well by prescription and that in any event, the ladder was situated on Crown land over which an easement had been granted.

The plaintiff submitted that (a) since the defendants had previously enjoyed the rights claimed with the consent of other family members and

not as of right, and since the deceased had for some time following the registration of his land, charged the defendants a fee to enter the land and use the well, they had not satisfied the requirement under the Prescription Law, s.2 and the Registered Land Law (Revised), s.138(1) of 20 years” uninterrupted enjoyment; (b) the defendants were estopped from claiming these rights by prescription since the issue had clearly already been decided against them by the Registrar of Lands; (c) the defendants should not be permitted to challenge the Registrar”s ruling by their counterclaim since they had not exercised their right to appeal against it and the courts should not allow judicial review of an administrative decision in these circumstances; (d) the defendants” erection of a ladder also constituted a trespass since there was independent evidence that its base rested not on the Crown land over which the defendants had the benefit of an easement, but on the deceased”s land; and (e) accordingly, the plaintiff was entitled to an injunction to restrain the defendants from trespassing on that land.

The defendants submitted in reply that (a) since they and their predecessors had enjoyed an unrestricted right of way across the deceased”s land for more than 40 years before their application to the Registrar and had drawn water from the well for some 30 years since the first pump had been installed, the Registrar of Lands had erred in ruling that no prescriptive right of way had arisen in favour of the land on the bluff; (b) they were not estopped from asserting their claim to prescriptive rights by the doctrine of res judicata, since the decision of a Registrar of Lands did not constitute a final determination on whether such rights had been acquired; (c) even if those rights had not arisen under the Prescription Law, s.2, the defendants had acquired them by way of the legal fiction of a lost modern grant, which presumed that the defendants” otherwise unexplained open use of the servient land for a period exceeding 20 years must have been with the owner”s consent; and (d) the ladder, at least, did not constitute trespass on the deceased”s land, since the face of the bluff was Crown land.

Held, granting an injunction restraining the defendants from trespassing further and ordering that they restore the land to its former state:

(1) The defendants were estopped from claiming that they had acquired registrable rights over the land by prescription, since that issue had already been decided by the Registrar of Lands upon their earlier application. The Registrar had clearly stated that the defendants had enjoyed uninterrupted use for an insufficient period following registration of the previously undivided family land to acquire a prescriptive right, and therefore their counterclaim fell squarely within the doctrine of res judicata (page 358, line 43 – page 359, line 8).

(2) Nor, for the same reasons, could the defendants now claim to have acquired rights by way of the legal fiction of a lost modern grant, since they were required first to establish the elements of prescription, namely a period of 20 years or more of uninterrupted enjoyment (page 359, lines 12–28).

(3) Furthermore, since they had failed to exercise their statutory right of appeal against the Registrar”s ruling, they would not now be permitted, by way of their counterclaim, to apply, in effect, for judicial review of the Registrar”s decision at this late stage (page 357, lines 13–32).

(4) The easement in favour of the defendants” land across the Crown land which formed the face of the bluff did not assist the defendants in the present case, since the base of the ladder they had erected rested on the land belonging to the deceased and not on Crown land (page 361, lines 26–42).

(5) Accordingly, the defendants were continuing to trespass on the deceased”s land. An injunction would be granted to restrain them from doing so in future and the defendants would be ordered to remove the footpath, bridge and ladder from the land (page 361, line 42 – page 362, line 4).

HARRE, C.J.: This is a family dispute about land. I must therefore set
out that part of the family history which seems to me to be relevant and
indicate how it relates to the history of various parcels of land on Cayman
Brac. As all the individuals in this dispute share the surname Lazzari, I
5	shall refer to them simply by their first names where convenient.
John A. Lazzari was the grandfather of the plaintiff, Brinsley, and the
first defendant. The first and second defendants, Leon and Freda, are
husband and wife and the third defendant, Pedro, is their son. Eslie Earl
Lazzari (‘Eslie’) was the plaintiff”s father. He died on April 8th, 1992
10	and the plaintiff is his executor. At the time of his death he was possessed
of land comprising Cayman Brac East, Block 108D, Parcel 34 (‘Parcel
34’). That land had been transferred to him as his share of the estate of
his parents.
The first and second defendants are the registered proprietors of two
15	parcels of land situated to the east of the deceased”s land. Between these
two parcels and Parcel 34 is other land, not in the ownership of any of the
parties. The first defendant is also registered as proprietor in common
with his brother, Enrique, of Block 109A, Parcel 20 (‘Parcel 20’) which
is on the bluff from which Cayman Brac derives its name, directly above
20	Parcel 34.
The plaintiff gave evidence that he remembered from when he was a
boy that there were three ladders erected up to the face of the bluff from
Blocks 108 and 109 to give access to the top of the bluff, and that these
were built about 1945. That accords with an affidavit by Eslie, now
25	deceased, which was admitted in evidence. It is the

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