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#18749
ROAD TRESPASS KILLING: scofflaw's MONTANA death contrasts to decade of LOWER RIDEAU LAKE litigation 2017/08/11 22:28  
In October 2013 within Montana's Diamond Bar X subdivision an incorrigible, scofflaw trespasser-harasser was SHOT TO DEATH by another property owner. The shooting occurred after - riding an ATV & armed with a .357 Magnum handgun - he actually pursued those rightful owners in public as they fled on foot right up to their own gates ! !

The pursuers's body was found with that loaded .357 Magnum, not far from his pursuit ATV . . . . probably still loaded with his oft-used mischievous bolt-cutters.

Both the deceased pursuer & the shooter were owners within the same 40 property Diamond Bar X Montana subdivision near national parkland. The venue for this dispute ( and a counterpart below ) were outdoors . . . fresh air . . . great natural beauty . . .

Merely to short-cut across the pursuit victim's / shooter's fenced lands to reach public lands for hunting & sport etc, the deceased had used those same cutters many times. They were used proudly to break the rightful owner's locked chains on that rightful owner's roads.

This is NOT about denial of any road access to reach anyone’s home including the scofflaw deceased's.

Murder Charge Laid

But after autopsy results undermined the account of the sole surviving witness - the shooter himself - the rightful owner found himself on trial charged with deliberate homicide.

Didn't help him that there had been shrieking & threats both ways for years.

Nor that the first witness to arrive after the shooting was one of the deceased's buddies. That buddy would later claim the .357 Magnum was lying suspiciously alongside the deceased's non-preferred right hand, not the deceased's usual gun-slinging left hand.

Nor looking wider that the scofflaw had manipulative enough skillsets - ? was he a pleasant sociopath ? - to convince cronies that he had some sort of magic colour of right to over-ride others' property rights . . . Some sort of Robin Hood taking on the Sheriff of Nottingham . . . " . . .after 5 years of short-cutting you can't keep us out ! "

"The Mountain of Madnesss" episode of the Canadian crime series "Fear Thy Neighbour" ( i.d. channel)

A 2016 Canadian tax-sheltered documentary has pried open some surprising statements by the other owners, the deceased Tim Newman's next of kin and the venerable Sheriff Leo Dutton of Lewis & Clark County.

AND - MOST IMPORTANTLY - by the hand-gun wielding owner Joe Campbell whose legal ordeal has finally runs its course after a hung jury triggered a mistrial & 'plea deal' with conditioned & suspended 20 year sentence for negligent homicide. ( he was forced to sell & get rid of his guns )

Could this have been avoided ?

An ADR mediation had occurred - not surprisingly ignored by the scofflaw. Newman appears to have also ignored - even proudly - whatever fines & local police cautions to him.

Too Cheap to Litigate when that became the needed NEXT step ?

Conspicuously lacking in reported pre-shooting events was any next stage application for judicial order to enforce trespass law or TRO Restraining Order.

A concurrent Ontario ROAD TRESPASS WAR but without gunplay

Without the Cussin & Shootin, a half continent away in Eastern Ontario another non-condo Building Scheme aftermath was amidst a decade of litigation.

Like Montana's Diamond Bar X war, Neighbourly Tolerance ( see below what this may mean ) was getting the beating it often UN-deservedly gets. Or was it about prudent road management running afoul of a scofflaw jerk ?

Below will also be posted details of a DECADE of post - Building Scheme access road litigation ( between geriatrics ) that directly killed no one but trees.

McClatchie v Churchill culminated with a landmark 2015 ONCA easement rights decision written by Mr Justice Paul Rouleau ( himself reportedly an owner in a famous Hogtown pre-condo Building Scheme ).

Litigated instead of settled by handguns after an ATV pursuit, the Lower Rideau Lake waterfront legal battle is credibly reported ( by a source close to the dispute ) to have effectively killed the ultimate loser in 2016 & left the victor with the most serious health issues.

So this is what waterfront retirement is about ?

* * *
Falls Creek MONTANA (Lewis & Clark County) : The lonesome death of Tim Newman on the Diamond Bar X ( "subdivision" ? )

May 31/17 Great Falls Tribune “TV show to look at Augusta area shooting death over public access”

http://www.marshfieldnewsherald.com/story/news/2017/05/31/tv-show-look-augusta-area-shooting-death- over-public-access/359765001/

xcrpt :

. . . The “Mountain of Madness” episode of the TV show “Fear thy Neighbor” airs 7 p.m. Thursday on Investigation Discovery, a cable channel show, examining the death of Tim Newman by Joe Campbell at the Falls Creek subdivision. The TV news magazine show “Dateline NBC” reported on it in June 2016.

May 18/17 KTVH News “ Joseph Campbell pleads no contest to negligent homicide in the Oct 2013 shooting death of Tim Newman” http://www.ktvh.com/2016/05/joseph-campbell-pleads-no-contest-in-the-shooting-death-of-tim-newman


June 10 2016 “Dateline NBC probes fatal Montana land Dispute, feud between neighbours” by Traciy Reyes
http://www.inquisitr.com/3189455/joseph-campbell-timothy-newman-dateline-nbc-probes-fatal-montana- land-dispute-feud-between-neighbors/
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#18750
DEATH BY LITIGATION INSTEAD OF BULLETS ? ? ? 2017/08/11 23:27  
McClatchie v Churchill (2015) judgment of the Ontario Court of Appeal ( McClatchie v. Rideau Lakes ( Township & Churchill ), 2015 ONCA 233 issued April 9/15 http://canlii.ca/t/gh41b hears appeal of 2014 heard in Ottawa : McClatchie v Rideau Lakes (Township) et al , 2014 ONSC 811 ( amended later - issued Oct 8/15 ) http://canlii.ca/t/g2zdh )

* * * *

The Montana SHOOTING death & criminal trial contrast to a decade of LITIGATION MORASS to resolve an Eastern Ontario dispute with many similarities.

Almost 85 years after the 1922 registration of the Frayne Building Scheme facing Rideau Ferry on Lower Rideau Lake, a waterfront home buyer sued a nearby owner of MOST of the reminder of the original Declarant's backlot holdings.

This dispute was NOT about 'short-cutting' as in Montana. It was about road access to otherwise 'water-accessible only' waterfront homes.

Somewhat reminiscent of the Montana tormentor's theory of 'No Compromise' and D.I.Y. right to trespass, the Plaintiff McClatchie ( & his predecessor ) had merrily also disregarded their own boundary with their construction, unlawfully almost doubling their lawful limits.

So it was a short leap as new owner for McClatchie to refuse deals that acknowledged - as revocable permit - any permission to travel on residue owner Churchill's private road, including to indemnify road owner Churchill, to assume risks limited by section 4 of the Occupiers Liability Act RSO 1990 ch O2, to refrain from speeding etc . . .

( Was offering this to McClatchie a prudent avoidance of prescriptive claims ? . . . misplaced Tolerant Neighbourliness ? . . . risk-taking that culminated in finally someone like McClatchie arriving . . ? )

For good measure McClatchie also sued the taxpayers of Rideau Lakes for whatever could be hung on that Township as successor to the municipal entity whose 1922 Building Scheme approval can not be evidenced & may never have occurred whatsoever. . . .

Mercifully for the taxpayers, McClatchie's claim against the Township was thrown out in 2013.

Sadly for Churchill his ordeal would be dragged on through a lower court loss but to his substantial victory on appeal in 2015.

( Ultimately McClatchie got to keep the 'squatted' area which he & his predecessor had 'privatized' likely from the other owners of the 1922 Building Scheme, possibly without legal standing nor apparently even notice ! ONCA shows little concern about that. )

THE EASEMENT OF NECESSITY CLAIM AGAINST CHURCHILL

In the greater public good & the Court of Appeal's 2015 judgment ( written by Mr Justice Paul Rouleau ), the disturbing & troubling Easement of Necessity claim was struck down in McClatchie's hands only. It's still on the books but facing a tough sell other than proximate to the date of original severance.

Not stated is that allowing some dudes 85 YEARS after a Building Scheme's creation to start demanding concessions from residue owners, would respectfully be VERY shaky public policy.

For example, it would open the door every generation to new sets of claimants flooding the courts to demand offsite changes from non-privy parties. Think : to platform the latest technological or architectural mode. Eg " We want to cut your neighbouring trees down to improve our solar & satellite gatherings." "We want to remove your chimney that's impeding our satellite signal. . . " Or in McClatchie's case : "We gobbled up our own Building Scheme road system. Now we want to demand some of the neighbour's too . . . "

POSTSCRIPT : City people may sometimes ask "What is neighbourly tolerance ? Why would anyone let neighbours short cut across your land ? Just look at the above ! "

Folkestone Corp v Brockman 2014 H of Lords 1914 http://swarb.co.uk/folkestone-corporation-v-brockman-hl-1914/ : Dictum about road dedication - NOT trespass battles. Still getting ONCA deference including para 28 Cook’s Road v Crowhill 2001. And maybe indirectly in McClatchie v Churchill 2015

In Reed v. Town of Lincoln, 1973 CanLII 731 (ON SC) http://canlii.ca/t/g15s1
“ . . . Continued user is not necessarily conclusive evidence of dedication: Folkestone Corp. v. Brockman, at pp. 362-4. . . . ..” The rule is based on the very human and Christian principle that the law shall neither encourage nor force a person to be unkind or uncharitable to his neighbours by being obliged to insist on his strict property rights in order to preserve them.. . .”
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