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Newfoundland neighbours’ land feud ends up in court

The scales of justice
The scales of justice - Graphic File

Judge says ‘vexatious litigants’ should have settled dispute long ago under Quieting of Titles Act

An ongoing land boundary dispute in Terrenceville on the Burin Peninsula might at first glance bring to mind the legendary Hatfields and McCoys feud of Kentucky and West Virginia in the late 1800s.

But the Terrenceville feud is of no comparison to the violence and blood-letting that went on between the Hatfied and McCoy families.

What is happening in Terrenceville — mainly between James and Vera Lavhey and their neighbour Patrick Hickey — has become more of a nuisance to police and justice officials, and is something that can be readily settled in Newfoundland and Labrador Supreme Court under the Quieting of Titles Act, but both sides seem to continue to aggravate each other, resulting in police visits and court appearances.

The latest visit to the provincial court in Grand Bank resulted in a ruling from Judge Harold Porter Wednesday that dismissed four applications for no-contact orders between the parties. In the decision, Porter outlined the history of the dispute and concluded that criminal court was no substitute for what should be settled under the Quieting of Titles Act.

“The parties are neighbours, with a long-standing disagreement about the metes and bounds of their respective properties,” Porter said. “They have not sought the resolution of the property dispute in the Supreme Court. This court does not exercise jurisdiction over land title disputes.

“The parties have now crossed the Rubicon (point of no return) in terms of being vexatious litigants. To grant the discretionary orders of recognizances would risk validating their resort to criminal procedure in lieu of civil action. They are not really in fear of one another — if they were, they would not have anything to do with each other. Even if they were in fear, issuing a court order would risk that order then being used to snare the other party in further criminal prosecution. It would therefore be contrary to the public interest to order a recognizance against any of the parties. As a result, all four applications are dismissed.”

The Lavheys and Hickey disagree where the line between their respective properties is, and had frequent unruly interactions over the issue. Many of the interactions have resulted in calls to the police, and Hickey has often been arrested and charged with various offences.

In the latest round, both sides were not represented by counsel and “took full advantage of the right to cross-examine each other,” Porter noted.

“That tended to devolve into argument, and repeatedly returned to the live issue of title to the land between their respective residences.”

Both sides brought pictures and video to the court to support their arguments — most of the photographs showed the general area of the contested land, as well as some out buildings and an old truck wreck.

“Apparently the town council had ordered the removal of the truck from the area as an eyesore,” the judge’s decision noted. “The truck had belonged to Hickey, but sat on land claimed by both parties.”

Incidents the court has heard include the setting of fires by both parties — when the wind was favourable — to allow smoke to blow over each other’s property. James Lavhey testified, Porter said, that he had no control over the wind, or how the wind took the smoke from his fire toward Hickey’s home.

There are allegations of Hickey throwing a gas tank in the vicinity of James Lavhey, and of Hickey blocking James Lavhey from plowing snow and threatening to punch Lavhey in the face. There were other allegations of harassment and of Hickey tossing rocks and other debris in a ditch James Lavhey was excavating.

In relation to Vera Lavhey, the court decision notes she had said she is “afraid in her own home.”

A video, however, shows her on one occasion physically separating her husband and Hickey during an altercation.

Porter said, “There is a reason to doubt the professed fear of Mr. Hickey.”

Hickey claims the Lavheys are slowly stealing his land. He says they are excavating the land, moving the property line back toward his home. He claims a road that James Lavhey is building to gain access to a parcel of land for Lavhey’s son takes in some of his land.

Lavhey has claimed squatter’s rights to the land.

“Given the nature of the source of the conflict between the parties, the appropriate forum for resolution of their dispute over the metes and bounds of their properties is in the Supreme Court, pursuant to the Quieting of Titles Act,” Porter concluded. “The criminal law is not a substitute for the Quieting of Titles Act.”

glen.whiffen@thetelegram.com

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