The Water & Sewerage Corporation has defeated a $1.227m damages claim for trespass that it alleges was merely a ploy attempting to force it to finance a planned Andros eco-resort.
Justice Diane Stewart, in a December 2, 2022, verdict found the state-owned utility had established possessory title to land that housed the water tanks and storage facility supplying Mangrove Cay given that their presence had gone unchallenged for some 26 years.
She ruled that Carla Braynen-Turnquest, who had accused the Water & Sewerage Corporation’s infrastructure of trespassing on property she owned, did not have documentary title to the disputed land given the multiple “inaccuracies” in the paper trail.
Ms Braynen-Turnquest had alleged she first became aware of the utility’s presence in 2009, when she asked Emile Ledee, a qualified surveyor with Bahama Geomatics Ltd, to survey what was alleged to be a 660-acre property to determine its boundaries. However, it emerged that Mr Ledee was also her business partner and a shareholder in Mangrove Properties, the company seeking to develop an eco-resort on the same land.
Nevertheless, despite the title defects, the Water & Sewerage Corporation, which was then headed by former executive chairman, Adrian Gibson, paid Ms Braynen-Turnquest some $20,000 on May 25, 2018, as an initial payment in “partial settlement” of her claim. Justice Stewart also ruled that those monies be repaid to the Water & Sewerage Corporation, which asserted this had been “erroneously paid” and was not an acceptance she held valid title to the property.
Ms Braynen-Turnquest, described as a realtor, had sought damages for trespass and “mesne profits for each year” of the Water & Sewerage Corporation’s use and occupation of her land with its holding tanks, pipes, fencing and other equipment. She alleged that her late father, Carl A. Braynen, had devised the 660-acre tract to her via his will after it had passed down through the family via a grandmother and great-grandfather.
After Mr Ledee uncovered the Water & Sewerage Corporation’s presence, Ms Braynen-Turnquest and the state-owned enterprise (SOE) began a six-year back-and-forth. The Water & Sewerage Corporation, on January 7, 2016, acknowledged it was occupying 15,200 square feet, or one-third of an acre, and proposed either leasing or acquiring the site some five months later.
The land was appraised at $44,000, and Ms Braynen-Turnquest via her attorney offered to lease it to the Water & Sewerage Corporation for $4,000 per month in addition to a further $4,000 “mesne profit” payment to compensate for the past “unauthorised” use.
The Water & Sewerage Corporation then invited her to submit an invoice for “partial settlement of claim”, and paid $20,000 via the May 25, 2018, cheque. “In January 2018, she and the then-chairman Adrian Gibson met without any legal advisors,” Justice Stewart noted. “Mr Gibson informed her that he had seen the file and told her that the matter should have been dealt with by the former administration.”
Mr Gibson did not assert that the Water & Sewerage Corporation owned the property, and Justice Stewart recorded: “The plaintiff described the property as a prime piece of property located on the highest hill in Andros. It had a beautiful high vista with panoramic views. As a real estate professional she knew the value of property with such features.....
“Mangrove Properties was a company which she incorporated, and she and Mr Ledee were its beneficial owners. It was formed with the intention of developing an eco-resort and not to quiet the property. She was aware that there was an encroachment on the property by a school, but she did not bring an action against the school because it was for the betterment of the children.
“She was also aware of houses on other parts of the property. However, she did not bring an action against those home owners and she had never investigated their root of title. The houses were located on the part of the property that was right across from the sea, and could be considered prime pieces of property. Where the water holding tank was located, however, was on one of the highest hills in Mangrove Cay.”
The Water & Sewerage Corporation, though, produced evidence - via a 1983 memorandum to the then-Ministry of Works permanent secretary - that its holding tanks had been at the site for at least 26 years prior to Mr Ledee’s 2009 survey, thus giving it sufficient cause to establish possessory title.
Cyprian Gibson, the Water & Sewerage Corporation’s Family Island general manager, testified that he never saw the June 4, 2018, letter to Ms Braynen-Turnquest’s attorney, Krystal Rolle QC, which enclosed the $20,000 cheque. He suggested it likely came from the office of then-general manager, Elwood Donaldson. However, Gilbert Thompson, an attorney with the utility’s law firm, Meridian Law Chambers, said he found she did not have good title to the land.
The Water & Sewerage Corporation thus took the position that it had possessory title to its water tanks location, and that Ms Braynen-Turnquest’s claim was “wholly defective”. Its trial submissions stated: “Mr Ledee is a joint business partner of the plaintiff, and had every benefit to gain from alleging that the property belonged to the plaintiff and that the defendant was a trespasser....
“The plaintiff was seeking to have the defendant finance her eco-resort project. She admitted to a school allegedly encroaching upon the property, although she did not bring an action of claim against them.” Justice Stewart agreed that Ms Braynen-Turnquest’s chain of title was defective, as there was no evidence to support her relatives owning the property, while there was a near 100-year gap between two ownership confirmations.
“I am not satisfied that the plaintiff can prove a good and marketable title to the property,” she determined, adding that her documentary claim was unable to oust the Water & Sewerage Corporation’s possession. Ms Rolle represented Ms Braynen-Turnquest, while Dywan Rodgers of Meridian Law Chambers acted for the water utility.
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