Bradley Milton Millingen v Lisa Stoddart Millingen

• Jurisdiction: Jamaica
• Judge: Hibbert, J.
• Judgment Date: 09 June 2015
• Neutral Citation: [2015] JMSC Civ 261
• Docket Number: CLAIM NO. 2014 HCV 01222
• Court: Supreme Court (Jamaica)
• Date: 09 June 2015

[2015] JMSC Civ 261

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. 2014 HCV 01222

In the Matter of the Presctiption Act

and

In the Matter of All That Parcl of Land Part of Number Five Hillcrest Avenue in the Parish of Saint Andrew Being the Land Comprised In Duplicate Certificate of Title Registered at Volume 649 Folio 27 of the Register Book of Titles.

Between

Bradley Milton Millingen

Claimant

and

Simone Thomas

Second Claimant

and

Lisa Stoddart Millingen

Defendant

Miss Aurine Bernard instructed by Forsythe and Forsythe for the Claimants.

Ransford Braham Q.C., and Miss Grace-AnnThomas instructed by BrahamLegal for the Defendant.

Hibbert, J.

1 On 9 June 2015 I gave an oral judgment in this matter and now reduce it, with amplification into writing.

2 Richard Milton Millingen, an Attorney-at-Law was the owner of three adjoining parcels of land in the parish of Saint Andrew registered at Volume 979 Folio 70, Volume 408 Folio 2 and Volume 649 Folio 27.

3 The property registered at Volume 979 Folio 70 fronts onto Hillcrest Avenue and is otherwise surrounded by other properties. It bears the civic address of 5 Hillcrest Avenue and is so referred to on the registered title.

4 The property registered at Volume 408 Folio 2 is situated behind that which is registered at Volume 979 Folio 70 and is completely landlocked.

5 the property, registered at Volume 649 Folio 27 is also situated behind that at Volume 979 Folio 70. This property is, however, not landlocked as it borders onto Lilford Avenue.

6 On 17 February 1986 Richard M. Millingen transferred all three properties to two of his sons, Peter Martin Millingen and Richard William Millingen. He however, continued to reside at 5 Hillcrest Avenue.

7 The second claimant Simone Thomas was employed to Richard M. Millingen and resided with him at 5 Hillcrest Avenue. On 19 October 1994 she gave birth to a son Bradley Milton Millingen, the first claimant herein. He was fathered by Richard M. Millingen and lived with his parents. His father died on 30 October 2010. Subsequently the claimants were allowed to occupy one of the apartments located on the property registered at Volume 649 Folio 27 as tenants at will.

8 On 1 March 2012 the properties registered at Volume 979 Folio 70 and Volume 408 Folio 2 were transferred to Lisa McDaniel-Millingen, the defendant herein. In 2008 she became the wife of Jeremy Millingen and the sister-in-law of the transferors. She and her husband reside at 5 Hillcrest Avenue.

9 In June 2012 the defendant caused a wall to be constructed thereby blocking access between the properties which were transferred to her and that which is registered at Volume 649 Folio 27. This also blocked access to that property from Hillcrest Avenue. Access to the property was therefore gained from Lilford Avenue.

10 On 30 October 2012 the property registered at Volume 649 Folio 27 was transferred to the first claimant.

11 As a result of erection of the wall and its attendant consequences the claimants filed a Fixed Date Claim dated 10 March 2014 claiming the following declarations and orders:

1

A Declaration that the Claimants by prescriptive right have the entrance to all that parcel of land known as 5 Hillcrest Avenue, in the parish of Saint Andrew containing by survey Four Thousand, Seven Hundred and Fifty Nine Square and Sixty Four Hundreds of a Square Foot of the shape and dimensions and butting as appears by the plan thereof and being the land comprised in Certificate of Title registered at Volume 649 Folio 27 of the Register Book of Titles at land being the frontage of 5 Hillcrest Avenue, Kingston 6, Saint Andrew. 2. A Declaration that the Claimants by prescriptive right be and are allowed to use and continue to enjoy the use of the existing gate and driveway established at the frontage of 5 Hillcrest Avenue, Kingston 6, Saint Andrew. 3. A Declaration that the National Water Commission, the Jamaica Public Service and Cable & Wireless Jamaica Limited and any other provider of such public utilities inclusive of telephone, electricity, internet cable and water have a right to run such conduits, lines, wires, pipes whether underground or above land in the airspace such appurtenances for the provision and supply of those such services to the Claimants and any other lawful occupants of the said Claimants property. 4. A Declaration that the Claimants are entitled by prescriptive right to the continued use of their established gate entrance and driveway to access their property at 5 Hillcrest Avenue, Kingston 6, Saint Andrew. 5. A Declaration that the Claimants are entitled to reasonable access to their entranceway and gate established since time immemorial. 6. A Declaration that the Claimants residential address e and is 5 Hillcrest Avenue, Kingston 6, in the parish of Saint Andrew. 7. An Order that the Defendant demolish the concrete wall and any other barrier erected since August 2012 blocking the Claimants access and use of their entrance, gate and driveway to 5 Hillcrest Avenue, Kingston 6, Saint Andrew. 8. A Order restraining the Defendant, her servants, agents, trustees, assignees, heirs and oar successors from interfering with the Claimants right to use the entrance and driveway established at 5 Hillcrest Avenue, Kingston 5, Saint Andrew. 9. An Order restraining the Defendant, her servants, agents, trustees, assignees, heirs and or successors from interfering with the Claimants' right to peaceful, quiet and unmolested occupation of their property and premises at 5 Hillcrest Avenue, Kingston 6, Saint Andrew. 10. An Order restraining the Defendant, her servants, agents, trustees, assignees, heirs and or successors from harassing, threatening and or intimidating the Claimants. 11. And the Claimant claims damages against the Defendant arising from the Defendant preventing them access to and the enjoyment of their established gate, entrance and driveway since August 2012. 12. And the Claimants claim INTEREST pursuant to the Law Reform (Miscellaneous Provisions) Act. 13. And the Claimant claims claim COSTS AND ATTORNEY'S COSTS. 14. And the Claimants pray that there be any such further order and or relief as this Honourable Court may deem fit.

12 This claim was supported by the affidavit of the first claimant. In this affidavit he stated that he had always known that access to the property which was transferred to him was from Hillcrest Avenue. Furthermore he had been advised that this was so even before his father acquired the three properties and remained so until the defendant caused the wall to be constructed. Access, he said, was by way of a driveway which ran along the edge of the property owned by the defendant.

13 The first claimant further stated that the blockage of the driveway has forced the claimants and their tenants to use an entrance at the back of their premises from Lilford Avenue which is made difficult by motor vehicles which are constantly parked in that vicinity. Additionally, he stated, the erection of the wall which has forced him to use an entrance along Lilford Avenue has deprived him and his tenants of the use of the civic address of 5 Hillcrest Avenue for the purposes of receiving mails and packages or for obtaining basic services such as taxi services.

14 The first claimant also stated that on 16 February 2014 he and the other occupants of his premises received notices from the defendant that they should make arrangements to have all overhead cables, telephone and electric lines which run through her property removed.

15 In response to the first claimants affidavit the defendant filed two affidavits. She stated that Lilford Avenue is no less a public street than Hillcrest Avenue and there are several dwelling houses located along Lilford Avenue and that there is no difficulty or issue with access to those premises. She further stated that the first claimant's premises have similar and more than adequate access from Lilford Avenue. Additionally all the premises on Lilford Avenue access utility services from Lilford Avenue and that this can be achieved by the claimant without inconvenience or difficulty.

16 Jeremy Millingen, the husband of the defendant also submitted two affidavits. He...