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Boundary Dispute Standards Clarified

Can a surveyor turn a 100 acre parcel of land into 87 acres, based on the location of a fence that doesn't follow the lot line set out in the legal description?  Perhaps surprisingly, the answer appears to be yes, based on a recent decision of the Ontario Court of Appeal.

The recent Ontario Court of Appeal decision Nicholson v. Halliday, 74 O.R. (3d)  81 is a case which reviews a boundary dispute between two hundred acre bush lots located on Manitoulin Island. While the case stands primarily for the Court’s views on the standard of reasonableness to be applied by the Director of Titles under the Boundaries Act R.S.O. 1990, c. B.10, what was most interesting for Bruce McKenna  was the discussion of the basic legal principles governing surveyors establishing boundaries.

There were two bush lots; lots 22 and 23, on Manitoulin Island that had been originally surveyed in 1870. Each lot was to be 100 acres, being 20 chains (1,320 feet) wide and 50 chains (3,300 feet) deep. The disputing owners acquired their lots in 1962 and 1979, respectively, and assumed as others had before them, that a fence marked the boundary between the lots.

One owner hired a surveyor who did not consider the fence to be a boundary fence because it did not extend completely from the front to the rear limit of the lot and because it followed an irregular path.  It was a much as 830 feet off a straight line dividing the lots.  That surveyor established another straight boundary line which produced two lots of approximately 100 acres each. The second owner then retained another surveyor who thought that the fence was intended to be a boundary line and established a different line along the fence between the two lots.  The second owner who retained that surveyor ended up with 113 acres and the first owner 87 acres.

The Director agreed with the second surveyor in a decision so poorly written that the Court of Appeal made a point of saying that it would not focus on “his lack of expertise in writing judicial reasons”.  The Divisional Court held that the Director has made four distinct errors and reversed the decision.  The Court of Appeal held that Directors’ conclusion that the fence represented the best evidence of the original running of the line between the two lots was a reasonable decision. The Court said that the Director was entrusted with the broad discretion in determining the boundary disputes because of his expertise about surveying. The Director had considered the evidence, weighed the evidence in a reasonable manner and gave considered reasons, which (when read as a whole) supported his determination. Accordingly, the original Order of the Director was affirmed.

What was most interesting for me about the judgement was not the decision itself but the affirmation by the Court of Appeal of 1989 lower court decision Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.) which affirmed an approach to boundary settlement that is “counter-intuitive” to my lawyer’s biases. I started to practice real property law when we used metes and bounds descriptions and detailed measurements governed.  Accordingly, I always tend to focus on the measurements and the descriptions contained in deeds and agreements.

However, the Court of Appeal affirmed the district’s court earlier approval of a 1983 article by the Executive Director of the Association of Ontario Land Surveyors. That article provided that a surveyor’s “hierarchy of evidence”, which ranks the evidence to re-establish a boundary for most compelling to least compelling is as follows:

a) natural boundaries;
b) original monuments;
c) fences or possession that can reasonably be related back to the time of the original survey; and
d) measurements (as shown on the plan or as stated in the metes and bounds description).

So, while my experience with metes and bounds legal descriptions would have suggested that the correct answer was the straight line between lots 22 and 23 which gave each party a 100 acre parcel, the surveyor’s “hierarchy of evidence” focused on the irregular fence ahead of the measurements and, accordingly the Court could hold that the Director’s decision was reasonable. That surprised me, it’s something I wanted to keep in mind so I thought making a note of it here would help me do that.

Bruce McKenna

July 15, 2005 in Other | Permalink

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I am currently involved in a similar situation. My neighbour started cutting the timber on his 240 acres. I advised him before cutting that the fence which he thought to be the boundary was not an accurate boundary. He cut to the fence anyway. The amount of difference is about 10 acres (100m by 1/4 mile long).I own the adjoining 240 acres. There is no legal survey and my neighbour erected the fence himself 30 years ago. The fence is put in such a manner that it avoids going through a spruce swamp (a matter of convience 30 years ago) I am asking for the value of wood from my property but am unsure to continue based on the old fence line.

Thanks Scott

Posted by: Scott | Mar 17, 2006 4:41:40 PM

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