THE BOUNDARIES ACT
Director of Titles – Ontario (Boundaries Act)
Registry: Thunder Bay
Between: Bruce Elliot and Carla Elliot – Applicants
- and -
Robert Cameron and Rhonda Cameron and Paul Mitchell and Ann Mitchell – Objectors
Before: Jack Keat, Deputy Director of Titles
1IN THE MATTER OF an application by Bruce Elliott and Carla Elliott, the registered owners of PIN 62493-0128(LT) in the Land Registry Office for Land Titles Division of Thunder Bay (No. 55), for the purpose of confirming under the Boundaries Act the true location of the boundaries of Lot 7, Registered Plan 694 in the Geographic Township of MacGregor, in the Municipality of Shuniah, District of Thunder Bay, being part of PIN 62493-0128(LT);
AND
2IN THE MATTER OF an objection to the said application by Robert Cameron and Rhonda Cameron the registered owners of PIN 62493-0129(LT) being composed (in part) of Lot 6, Registered Plan 694 in the Geographic Township of MacGregor, in the Municipality of Shuniah, District of Thunder Bay, adjoining the applicants land along the applicants west boundary;
AND
3IN THE MATTER OF an objection to the said application by Paul Mitchell and Ann Mitchell the registered owners of PIN 62493-0127(LT) being composed of Lot 8, Registered Plan 694 in the Geographic Township of MacGregor, in the Municipality of Shuniah, District of Thunder Bay, adjoining the applicants land along the applicants east boundary;
REASONS
4This is an application made by the registered owners, Bruce Elliott and Carla Elliott of the lands identified as Lot 7, Registered Plan 694 in the Geographic Township of MacGregor, in the Municipality of Shuniah, District of Thunder Bay, being part of PIN 62493-0128(LT), for the purpose of confirming the true location of the boundaries thereof in accordance with a draft Boundaries Act Plan dated December 7, 2011 and signed by D.A. Kovacs, Ontario Land Surveyor.
5All interested parties to the application were served, by prepaid registered mail, with a copy of the Notice of Application together with a copy of the draft Boundaries Act Plan.
6The objectors, Robert Cameron and Rhonda Cameron are relying upon various survey work within Registered Plan 694 as completed by Mr. Howard M. Graham, Ontario Land Surveyor (Retired) in the 1980’s and 90’s in support of their objection to the boundaries as shown on the draft Boundaries Act Plan.
7The objectors, Paul Mitchell and Ann Mitchell are relying upon a survey, dated June 1, 2007 and signed by Peter de Haan, Ontario Land Surveyor and deposited in the land registration system as Plan 55R-12592 in support of their objection to the boundaries as shown on the draft Boundaries Act Plan.
8This application came before me at 9:00 o'clock in the morning, on the 24th day of September 2013 in Boardroom “A” of the Ontario Government Building at 189 Red River Road, Thunder Bay, Ontario. The hearing was continued in the same location on September 25th and 26th. The hearing was adjourned at the end of the day on September 26th with an agreed upon schedule for the submission, in writing, of closing arguments, reply and costs to the tribunal. The hearing was closed on October 28th, 2013.
9At the hearing the following people were present:
Applicant:
Applicant and Witness Mr. Bruce Elliott
Applicant Ms. Carla Elliott
Solicitor for the Applicant Mr. Izaak de Rijcke
Surveyor for the Applicant Mr. D.A. Kovacs, OLS
Objector 1:
Objector and Witness Mr. Robert Cameron
Objector Ms. Rhonda Cameron
Solicitor for the Objector’s Mr. Daniel R. Fillipovic
Surveyor and Witness Mr. Howard M. Graham, O.L.S. (retired)
Objector 2:
Objector and Witness Mr. Paul Mitchell
Objector and Witness Ms. Ann Mitchell
Solicitor for the Objector’s Mr. Michael Harris
Surveyor and Witness Mr. Peter de Haan, O.L.S.
Additional Witness Mr. Glenn Brassard
Additional Witness Ms. Loretta Brassard
10At the hearing, nine exhibits were filed, as more fully set out in Appendix "A" attached.
THE SETTING
11The property under application lies in what was originally a recreational property subdivision known as Birch Beach. The Birch Beach subdivision is located approximately half an hour's drive east of the City of Thunder Bay along the shore of Lake Superior. The properties were initially used as summer vacation/weekend retreats for owners and their families. Over the years this usage has extended and it is my understanding that some properties in Birch Beach are now permanent residences.
12The terminology for these recreational properties in Northern Ontario is the "camp". In Southern Ontario the term utilized is the "cottage". It is my understanding that these two terms are synonymous.
13It is my further understanding that the community of owners and their families where an amicable group of neighbors who participated together in community based events such as barbecues and regattas. Children wandered throughout the subdivision with little or no thought given by parents to property boundaries or rights. People came to the camp to enjoy the sunshine and fresh air. There were no disputes with respect to boundaries nor were there any surveys.
14This appears to have changed when the surveyors came upon the scene to make surveys of the Municipal road allowance along the shore of Lake Superior for the purpose of property owners purchasing the portion of the road allowance in front of their camp from the Municipality. In general, these surveys have been performed over the last two decades. These surveys did not always determine the boundary locations of parcels where people had thought or assumed they were positioned.
15One of these situations has led to the current dispute and thus this hearing was convened to adjudicate the location of the boundaries of Lot 7 as owned by the applicants.
THE EVIDENCE
Registered Title History
16The title history of the three properties involved with this dispute is straightforward. None of the information provided at the hearing predates Registered Plan 694.
17Registered Plan 694 was registered May 20, 1921. The plan is titled, Birch Beach being a Subdivision of Part of Lot 11, Francis Survey, Township of MacGregor, District of Thunder Bay. The subdivider was The MacKenzie Land and Development Co. Ltd. MacKenzie Land).
18I will list the title information for the three lots in the order in which the lots were originally conveyed by MacKenzie Land.
19Lot 8
This lot is purchased from MacKenzie Land by Winifred Mary E. Hawkins July 2, 1929. The conveyance is registered July 8, 1929 as Instrument 1313.
Winifred Mary E Hawkins conveys the lot to Tiberio Zanette and Ilvia Zanette as joint tenants August 23, 1949. This deed is registered August 29, 1949 as Instrument 2727.
Ilvia Zanette conveys the lot to Ann and Paul Mitchell as joint tenants by Instrument 404293 registered August 11, 1999.
Ann Mitchel is one of the daughters of Tiberio Zanette and Ilvia Zanette.
20Lot 6
This lot is purchased from MacKenzie Land November 3, 1947 by Robert Francis Britten and Gladys Patricia May Britten as joint tenants. The grant is registered April 26, 1948 as Instrument 2558.
The Britten’s convey the property to Shirley Patricia Douglas by Instrument 317796 registered June 15, 1990.
On April 24, 1996, Ms. Douglas purchases the portion of the Municipal road allowance lying between her lot and Lake Superior from the Municipality by Instrument 376062.
Shirley Patricia Douglas sells the property to Robert John Cameron and Rhonda Joy Perrier-Cameron as joint tenants by transfer 399871 registered January 4, 1999.
21Lot 7
This lot is purchased by Elsie May Elliott from MacKenzie Land on August 30, 1948. The grant is registered September 21, 1948 as instrument 2608.
The property is subsequently conveyed July 26, 1972 by Instrument 148090 which was registered August 3, 1972. Elsie May Elliott conveys the lot to John David Russell Elliott and Laureen Genevieve Elliott as joint tenants.
On June 11, 1996, the Elliott’s purchase the portion of the Municipal road allowance lying between their lot and Lake Superior from the Municipality by Instrument 377366.
On December 1, 2004 the Elliott's convey the property to Bruce Elliott and Carla Elliott as joint tenants by Instrument TY592.
Bruce Elliott is the son of John David Russell Elliott and Laureen Genevieve Elliott.
Foundational Surveys
22The following are what I consider to be the foundational surveys with respect to the boundary limits of the tier of lots before this tribunal and in particular with respect to the Applicant’s lot. All subsequent surveys are founded upon the evidence set or found in these surveys as well as the survey methods applied to this evidence.
23All of these surveys are included in Exhibit 1. Mr. Kovacs spoke to all of these in his direct testimony, as did Mr. Graham and Mr. de Haan.
24I have added some commentary regarding items that were revealed during the testimony of the three land surveyors who appeared at the hearing. Lastly, I have added items that I have gleaned from my review of these surveys.
Registered Plan 694 (Exhibit 1, Appendix D.1)
25This plan was surveyed by S. E. Flook, Ontario Land Surveyor. According to the surveyor’s certificate on the face of the plan, Mr. Flook signed the plan August 6, 1920. There is no indication on the plan of when the actual fieldwork took place. There are no field notes available for the survey of the registered plan. As previously mentioned, the plan was subsequently registered the following spring on May 20, 1921.
26The plan creates 63 lots. There is a 33 foot wide Road Allowance allowed for at the rear of the lots and also immediately adjacent to the East and the West boundaries of underlying Lot 11, Francis survey. The configuration of the lots is roughly “V” shaped, with the point of the “V” more or less in the middle of the property at a point of land protruding into Lake Superior.
27The east or right hand arm of the “V” contains Lots 33 to 63. These lots front directly onto Lake Superior. The west or left hand arm of the “V” contains Lots 1 through 32. These lots do not front directly onto Lake Superior, but have a shoreline Road Allowance lying between the lots and Lake Superior. This road allowance is created by the registered plan. The shoreline road allowance varies in width as it is adjacent to the natural boundary and follows the sinuous nature of the natural boundary.
28It is the west or left arm of the “V” that concerns the tribunal. The lots are rectilinear in configuration for the most part with dimensions of 50 feet long the rear road allowance with a depth of 175 feet southwesterly towards the Lake. The lots are perpendicular to the road allowance along the rear of the lots and more or less perpendicular to the general line of the shore of Lake Superior.
29The most westerly three lots, being Lots 1, 2 and 3 are not rectilinear as the west boundary of the subdivision is not perpendicular to the shore of Lake Superior, but strikes the lake at an obtuse angle of approximately 120°. Thus these three lots are wedge shaped in configuration with longer lot frontages along the road allowance in the rear of the tier of lots.
30The plan depicts a 66 foot wide Road lying between Lots 26 and 27 which connect the road allowance in rear of the lots with the shoreline road allowance. As previously mentioned, there is also a 33 foot wide road depicted along the west boundary of the subdivision lying between said west boundary and Lot 1. Again, this connects the shore road allowance with the road allowance in rear of the lots.
31The plan shows filled in circles or dots at all of the lot corners. This is typical for the manner in which surveyors would indicate monumentation as being set at these corners. However, as previously mentioned there are no notes upon the plan to indicate the nature of these set monuments.
The following are information which I have noted concerning Registered Plan 694.
32The non-rectilinear Lot 1 at the extreme western end of the plan does not close mathematically. Mathematical closure is a mathematical exercise using the plan bearing and distance data to calculate around the lot boundaries to determine if the data shown on the plan returns you to your starting point. The misclosure is significant; in the order of 12 feet. This means that the dimensions shown on Registered Plan 694 with respect to Lot 1 are incorrect. The mathematical misclosure calculations point very strongly to the problem being isolated to the dimension shown for Lot 1 along the Birch Beach Road frontage. The dimension is shown as being 71.6 feet but calculations would indicate that the dimension should only be 59 feet.
Plan of Roads to Birch Beach and Crescent Bay – Phillips and Benner (Exhibit 1, Appendix D.2)
33This survey was prepared by the survey firm of Phillips and Benner for the purpose of creating road access from the Trans-Canada Highway to the Birch Beach and the Crescent Bay developments. The survey is dated at Port Arthur October 22, 1940. The plan is not signed by an Ontario Land Surveyor.
34The new roads created are primarily across Mining Location 12 which lies to the west of the Birch Beach subdivision. With respect to Birch Beach, the plan also widens the 33 foot road allowance in rear of the Birch Beach lots by an additional 33 feet. There is also a new road surveyed and depicted on the plan which represents an extension of the road between Lots 26 and 27 (as previously mentioned) running northeasterly and then southeasterly to join the two arms of the “V” shaped configuration of the original Birch Beach lot layout.
35The survey plan indicates a note with respect to survey monuments; that is, wooden posts 2" x 2" are shown as solid squares and that iron posts are shown as open circles. There is no distinction made between whether the monuments were found or set in this legend note.
36I do note that in the area of the apex of the “V” the plan indicates a found rock post between the creek and the center line of the present road. I further note a found iron pipe at the intersection of the new road created to join the two arms of the ”V” and the widened limit of the 33 foot road in rear of the east arm of the tier of lots (Lots 33 to 63) created by the Birch Beach plan.
37In general, all monuments depicted on the plan are with respect to the actual road work. There are two exceptions, being along the tier of lots on the northwest arm of the subdivision. There is a solid square depicted at the northwesterly corner of Lot 22 and at the northeasterly corner of Lot 23.
38There are no field notes available for the survey depicted by this plan.
Survey by Phillips and Gavin – Lot 2 (Exhibit 1, Appendix D.3)
39Phillips and Gavin is a successor firm to Phillips and Benner. This survey was completed in 1958, almost 20 years after the road survey by Phillips & Benner. There is a plan associated with this survey as well as four pages of field notes. The field notes appear to be incomplete. Pages 3 and 5 are missing. No explanation was provided for this deficiency by any surveyor or counsel for any of the parties.
40The plan itself does not indicate any information that would permit an understanding of how the surveyor retraced the boundaries of Lot 2. The four pages of field notes that were entered in evidence are also not entirely clear as to the methodology utilized with the conduct of the survey relative to the evidence found.
41Page 1 of the field notes do indicate that the surveyor found an O.S. (typically interpreted as "original stake" by surveyors) at the northwest corner of Lot 27 which was replaced with a 1 inch round iron bar. This same page of field notes indicates that another O.S. was found at the southwest corner of Lot 2, which was also replaced.
42I queried Mr. Kovacs directly concerning these monuments and it was his opinion that they are original monuments as set by Mr. Flook during the conduct of the survey for Registered Plan 694. Mr. Kovacs' opinion was not questioned or refuted by testimony from any other surveyors present at the hearing.
43There was very little insight provided by the surveyors appearing at the hearing concerning exactly how Phillips and Gavin actually conducted this survey based upon the two found original stakes. There was agreement from all of the surveyors that the measurement from the northwest corner of Lot 27 northwesterly along the south limit of Birch Beach Road to the northeast corner of Lot 2 (i.e. the most eastern corner of Lot 2) fit the Registered Plan distance very well.
44I would submit that this should be no surprise to the surveyors as upon a careful review of the field notes provided it seems apparent to me that Phillips and Gavin set net plan distance of 1301 feet along the road to establish this lot corner.
45Further, the field notes are not particularly clear as to how Phillips and Gavin established their road alignment for the rear of this tier of lots. After a careful review of the 4 pages of field notes, I have concluded that the Iron Pipe as set, during the 1940 survey by Phillips and Benner at the bend in the north side of the widened Birch Beach Road near the west limit of Mining Location 11, was used for the road alignment together with the original stake at the northwest angle of Lot 27.
46I draw this conclusion from a number of items shown on field note pages labeled 1 of 6 and 6 of 6. Page 1 of 6 shows the notation “plant ½” IB in ditch”. This would be a typical surveyor abbreviation for "planted a half inch square iron bar in ditch". This survey monument is illustrated as being set at the intersection of the south limit of the road and the west limit of the subdivision. Page 6 of 6 illustrates the calculations that the surveyor completed to determine the location of the west limit of the subdivision relative to his survey and the Iron Pipe. This only makes sense if one concludes that the Iron Pipe was used for the road alignment.
47My second point is with respect to the found stake at the lakeside or front of Lot 2 and being illustrated in the field notes as the southwest corner of the lot. As previously stated, this stake has been marked in the field notes as an original stake. The field staff measure to this stake from a temporary working point they had established and illustrated in the field notes to be on the rear limit of the lot (i.e. in the south limit of Birch Beach Road). The field staff calculated the perpendicular distance southerly from the rear limit of the lot to this found original stake. The notes indicate the perpendicular distance to be 174.90 feet, while according to the Registered Plan, the perpendicular distance would be 175 feet. Once again, this only makes sense if the road alignment has been determined from evidence other than this original stake. This calculation is shown on Page 4 of 6.
48Page 4 of 6 also shows measurements to apparent property limits along the road frontage beginning at the northwest angle of Lot 27 and proceeding along Birch Beach Road to the West limit of the subdivision. The notation opposite the measurement of 1484.48 is "to west limit sub established from P&B pipe for road survey". The measurement to the location of the Phillips & Benner pipe provides additional interpretive evidence that the road alignment must have been established utilizing this pipe.
49The notes further show that Phillips and Gavin accepted the stake found at the southwest corner of Lot 2 and then set the southeast corner of Lot 2 at a proportioned distance of 49.88 feet to the east. This is consistent with the dimension shortage of 2.90’ which P&B had determined for the lake side of the tier of lots.
Survey of Lot 11 - Howard Graham (Exhibit 1, Appendix D.4)
50Mr. Graham conducted a survey of Lot 11 during October 2 & 3, 1986. There was no plan prepared as a result of this survey however all four corners of Lot 11 were determined and marked accordingly. There are 11 pages of field notes provided for this survey.
51Mr. Graham finds the 1 inch round iron bar set by Phillips and Gavin at the northwest corner of Lot 27 per the 1958 survey of Lot 2. This monument perpetuates the original stake found in 1958. He then finds a wood stake with a piece of iron rod standing up next to it at the northeast corner of Lot 2. Mr. Graham accepts this found evidence and replaces same with a one-inch square iron bar. He uses these two points to establish the rear limit of the tier of subdivision lots.
52Page 5 of his field notes indicate that he found the wooden stakes at the front corners of Lot 2; however the field notes are missing a distance required to calculate the measurement between the southeast corner and the northeast corner of the lot. Without this missing distance there is no way to verify the evidence that he found relative to either the plan or the field notes prepared in conjunction with the survey of Lot 2.
53Along the rear line of the subdivision lots Mr. Graham determines the distance between the northwest corner of Lot 27 and the northeast corner of Lot 2. He finds a shortage across these lots and proportions the shortage into all of the lots; resulting in a lot width of 49.93 feet per lot.
54Mr. Graham proceeds to mark the corners of Lot 11 based upon his findings. The sidelines of the lot are set at 90° to the rear boundary and the front corners are set at plan distance of 175 feet from the rear limit.
55Mr. Graham finds that the garage located on Lot 11 encroaches across the west lot line as retraced by his methodology.
Additional Surveys
56Subsequent to Mr. Graham’s 1986 survey of Lot 11, there are several other surveys within this tier of lots performed by a number of different surveyors. The surveys are by Bill Parsons, Romero Padovan, Barry Maskell and finally Steven Card.
57There are also additional surveys by Mr. Graham.
I will list the surveys chronologically and provide brief comments as to the survey method and evidence relative to the foundational surveys.
Survey of Lot 3 – Bill Parsons, O.L.S. (Exhibit 1, Appendix D.5 & D.6)
58Mr. Parsons completed field work for a survey of Lot 3 in November/December 1986; approximately 2 months after Mr. Graham's survey of Lot 11. In November, Mr. Parsons initially utilizes the survey monuments set by Mr. Graham at the northeast corner of Lot 2 and at the two rear corners of Lot 11 to establish the south limit of Birch Beach Road. Mr. Parsons also finds the wooden stake at the southeast corner of Lot 2 as set by Phillips & Gavin during their 1958 survey of Lot 2.
59Mr. Parsons finds a large discrepancy in the depth of the tier of lots utilizing Mr. Graham’s Birch Beach Road alignment and the found wooden stake at the front of Lot 2. Mr. Parsons completes additional research and concludes that he will accept the road alignment as established by Phillips & Benner in 1940 and perpetuated by Phillips & Gavin in 1958 when they surveyed Lot 2. Mr. Parsons communicates with Mr. Graham concerning his findings.
60Mr. Graham requests that Mr. Parsons delay finalizing his survey so that he can complete additional field investigations in the spring. Mr. Graham completes additional field work April 2, 1987. Mr. Graham makes measurements to the wood stakes at the front corners of Lot 2 which had not been properly located in October 1986 due to missing measurements. Mr. Graham also takes measurements to the “edge of road grade” between Lot 2 and Lot 11.
61The two surveyors fail to reach agreement upon the best evidence of the road limit. Mr. Parsons accepts the Phillips/Benner/Gavin alignment for the front and rear limits of the tier of lots and proceeds to finalize his survey. Mr. Parsons’ survey plan indicates that the road encroaches onto Lot 3 and that he set short standard iron bars at the rear corners of the lot in the road bed buried 2 inches below grade.
Survey of Part of Mining Location 11 – J.D. Barnes Ltd. (Exhibit 1, Appendix D.7)
62This survey is for a parcel located immediately across Birch Beach Road from Lots 24, 25 and 26. The work was completed in August 1989 according to the field notes. It does not have any direct impact on the boundaries under application. The survey does not include a plan, just two pages of field notes.
63The field notes do show found monumentation at the northeast angle of Lot 23 and at the northwest angle of Lot 22. Both of these monuments are indicated in the field notes to be those of Mr. Graham. There have been no field notes presented to this tribunal indicating how these survey points where established by Mr. Graham, however he has indicated in testimony that he marked out Lots 22 and 23 at the same time that he completed the survey of Lot 11.
64The survey also utilizes a found survey monument at the northeast corner of Lot 26. The origin of the survey monument is not indicated in the field notes. However Mr.Graham’s notes for the survey of Lot 11 do indicate that a standard iron bar was set at this location.
65As this survey utilizes the found survey monuments as set by Mr. Graham, the new survey monuments set along the north side of the Birch Beach Road will be in agreement with Mr. Graham’s retracement of the road limit.
Plan 55R-8325 – Romano Padovan, O.L.S. (Exhibit 1, Appendix D.8)
66Mr. Padovan completes a survey of property on the north side of Birch Beach Road being part of Mining Location 11. The plan is signed June 25, 1990 and deposited in the land register office as Plan 55R-8325 on July 5, 1990.
67The survey and plan itself are not particularly relevant to the issues before this tribunal. However, Mr. Padovan also staked the four corners of two lots on Registered Plan 694 during the conduct of his field work for the survey of the lands north of Birch Beach Road. These were Lots 15 and 20.
68Mr. Kovacs has stated in his survey report that “it is not clear from the field notes the methodology used to set these bars”. While I agree with Mr. Kovacs regarding a determination of exactly what Mr. Padovan did to set these monuments, I do believe it is possible to understand what was done at a higher level of detail.
69I have reviewed these field notes and have concluded a number of items:
He worked an offset line across the entire length of Birch Beach Road, utilizing the Iron Pipe per the Phillips & Benner road work at the northwest end of the widened Birch Beach Road and the J.D. Barnes standard iron bar set per the Appendix D.7 field work at the northwest intersection of Birch Beach Road and the road between Lot 26 and 27 as representing the best evidence of the north limit of Birch Beach Road.
He set the rear lot corners of both Lots 15 and 20 along Birch Beach Road at 66 feet from the above noted north road limit.
He sets the front corners of the lots perpendicular to the road limit he had established and at a depth of 175 feet from the rear corners.
He did not measure to any evidence along the front limit of the lots.
I am not able to determine for certain how he proportioned at the rear of the lots; however it does appear that was his method.
He does not appear to have recognized that there were two different street lines for Birch Beach Road, at least not when he staked the corners of Lots 15 and 20 on May 7th and 8th respectively.
70The above does explain why Mr. Kovacs finds in 2009 that Mr. Padovan’s survey monuments fit the Phillips/Benner/Gavin street line at the rear of the lots and a front boundary for the tier of lots set at 175 feet southerly and perpendicular to the rear street line. Although I would point out that the J.D. Barnes monument at the northwest street intersection per the Appendix D.7 field notes is on the street line established by Mr. Graham. This means that the road limit set by Mr. Padovan is in fact a hybrid version of the two street lines because he has used Mr. Graham’s establishment at the east end of the street line and then the Phillips & Benner street line at the west end.
Plan 55R-8654 – Barry Maskell, O.L.S. (Exhibit 1, Appendix D.9)
71This is a survey of a portion of the road allowance in front of Lots 21, 22, 23, 24 and part of 25, Registered Plan 694. The survey was deposited at the land registry office May 22nd, 1991. The survey identifies the land as part of the Original 66 foot road allowance in front of Mining Location 11 (Francis Survey). This is incorrect. The road allowance in front of the lots on Registered Plan 694 was created by the registered plan.
72This survey does not add anything new to the matter before this tribunal. The surveyor has effectively used the Phillips/Benner/Gavin street line for the rear limit of the lots and sets the front limits at 175 feet from the rear limit. Mr. Maskell has proportioned along the rear lot limits and set the sidelines at 90° to the rear limit. Many of the found bars are shown to be of unknown origin, yet he relies upon them.
Plan 55R-9088 – Steven J. Card, O.L.S. (Exhibit 1, Appendix D.10)
73This survey is for a portion of the shoreline road allowance in front of Lots 2 and 3, Registered Plan 694. The survey was deposited at the land registry office May 26, 1992. The original stake as found by Phillips and Gavin in 1958 at the southwest angle of Lot 2 was replaced with a one-inch square short standard iron bar during this survey.
74There continues to be confusion among the local surveyors with the rear limit of the lots at Birch Beach Road. The field notes for this survey show that the field staff set a short standard iron bar (SSIB) at what they believed to be the northeast corner of Lot 3. When Mr. Card prepares and signs the survey plan, the SSIB is now illustrated as being set in a “tie line only”. This means that the monument was not set in the boundary line of the rear limit of the Birch Beach lots.
75The location of this SSIB was established from survey monuments set by Mr. Graham along the rear limit of the tier of lots, as retraced by Mr. Graham. The entire line illustrating 3 found survey monuments set by Mr. Graham as well as the new SSIB set by Mr. Card has been depicted on the survey plan as a tie line and not as a boundary. I must conclude that Mr. Card was not in agreement with Mr. Graham's retracement of this limit.
76I also note that Mr. Card has shown a round iron pipe on the limit between Lot 1 and Lot 2. He has indicated that this monument was established by Phillips and Gavin. I have found no documentary evidence within the materials submitted to this tribunal that would support such a statement.
Plan 55R-10235 – Howard Graham, O.L.S. (Exhibit 1, Appendix D.12)
77This is a survey of portions of the shoreline road allowance in front of this tier of lots as created by Registered Plan 694. The plan includes portions lying in front of Lots 4, 5, 6, 7, 17, 18, 19, 20 and 30. The plan was deposited at the land registry office January 3, 1996.
78Mr. Graham has established the rear limit of the tier of lots in agreement with his prior survey of 1986 for Lots 11, 22 and 23. The front limit of the tier of lots is set at 175 feet perpendicular distance from the rear limit. Again this is consistent with his prior 1986 work. Mr. Graham uses proportioning along both of these limits for his establishment of the sidelines between lots. These lot lines are then projected southerly to Lake Superior.
79Mr. Graham finds conflicting survey evidence with respect to Plan 55R–9088 (Mr.Card’s survey) and Plan 55R-8654 (Mr. Maskell’s survey) along the front limit of the lots. Mr. Graham indicates this conflicting evidence on his survey. He also finds conflicting evidence at the rear limit of Lot 20. These are the survey monuments set by Mr. Padovan in 1990. Again Mr. Graham indicates this conflicting evidence on his survey plan.
80Prior to depositing his survey plan, Mr. Graham initiated communication with Mr.Maskell by a letter dated December 18, 1995 and sent care of Mr. de Haan whom appears to be the principal surveyor at a firm known as Maskell de Haan Ltd. at this time (see Exhibit 1 Appendix D.11). There is no record of the reply from either Mr. Maskell or Mr. de Haan within the applicants Exhibit 1 materials.
Plan 55R-10976 – Howard Graham, O.L.S. (Exhibit 1, Appendix D.13)
81This is another survey of portions of the shoreline road allowance in front of this tier of lots as created by Registered Plan 694. The plan includes portions lying in front of Lots 9, 10, 11, 13, 14, 16, 27, 28 and the road allowance between Lots 26 and 27. The plan was deposited at the land registry office December 3, 1998.
82Mr. Graham finds conflicting evidence at the front corner of the Lot 14/15 line. This is one of the corners or monuments set by Mr. Padovan in 1990. Mr. Graham illustrates this conflicting monument on his survey.
83Mr. Graham continues with his original establishment of the front and rear limits of this tier of subdivision lots and the proportioning that he had determined for the sidelines based upon his 1986 fieldwork. The plan adds no new information.
Summary of Lay Witnesses
84The following represents the testimony of the lay witnesses that, in my opinion, is relevant to the location of the boundaries under application.
Mr. Bruce Elliott
85Mr. Elliott testified that Lot 7 had been in his families’ ownership since 1955. When the cabin on Lot 7 was built, the cabins on both Lots 6 and 8 were already in existence when the Elliott cabin was built.
86Counsel took him through a review of the timelines set out at Tab 17.4(a) of Exhibit 1. Mr. Elliott prepared this document. The information was obtained from multiple sources including his parents, various records and his personal recollection.
87He testified that the septic system on Lot 7 was installed in the spring of 1993. In seeking Municipal approvals for the installation, he was advised that the full 50 foot width of Lot 7 would be needed for the project. Mr. Elliott’s father J. David Elliott had told him that he thought the boundary between Lot 7 and 8 was the middle of the ditch at the front or lake side of the parcels. This expectation of the boundary location was used to guide in the positioning of the septic and weeping bed.
88In 1996, Mr. Elliott acted on behalf of his parents to engage the service of Mr. Howard Graham, O.L.S. for the purposes of surveying the road allowance in front of the camp so that it could be purchased from the Municipality. The results of Mr. Graham’s survey indicated that a small portion of the septic system had been built onto Lot 6. Mr. Elliott was not happy to see that the positioning estimate had been incorrect.
89Mr. de Rijcke questioned Mr. Elliott about the garage located on Lot 8. Mr. Elliott stated that it was his understanding from discussions with both Paul and Ann Mitchell that when Mr. Zanette built the garage, it had been centered on the existing bunk house which pre-dated the Zanette ownership of the property.
90Mr. de Rijcke had Mr. Elliott review the photographs at Tab 17.4(b) of Exhibit 1. Mr. Elliott confirmed that he had taken all of the photographs. Note was made concerning Photo No. 1, taken in 1993, which shows some of the fill that was installed at the time the septic system was built. The photo also shows the rear portion of what would be the boundary between Lots 7 and 8. Mr. Elliott confirmed that there had never been a fence along this boundary.
91Photo No. 2 was also reviewed. This photo was taken in 2006 and shows orange flagging tape along the ground which Mr. Elliott placed to mark the boundary between Lot 7 and 8 according to the survey by Mr. Graham, O.L.S. Mr. Elliott testified that he had done this in order to make the boundary location clear to the Mitchells as he had received a letter from them concerning adverse possession.
92Mr. de Rijcke led Mr. Elliott through testimony concerning the difficulties that he experienced in finding a surveyor to represent him before this tribunal. While this did not relate specifically to evidence regarding the boundaries under application, it was relevant to the reason that this dispute has remained unresolved for over a decade. It also relates to the extreme frustration that Mr. Elliott has experienced in not being able to obtain a resolution.
Mr. Robert Cameron
93Mr. Cameron stated that his parents had a camp at Lot 16 and that the family had been coming to Birch Beach since the 1920’s. He personally has been coming to Birch Beach all his life. He bought his current Lot 6 property from Shirley Douglas in 1999. There were survey stakes in place on both sides of his property when he purchased.
94Mr. Cameron has never had any dispute with the Elliott’s nor is he aware of any disputes between the prior owner Shirley Douglas and the Elliott’s. He is also not aware of anyone else in Birch Beach having any boundary disputes, even during the whole time that he was growing up and spending his summers at the camp.
95Mr. Cameron built a garage on Lot 6 in 2003. He relied upon the present stakes being those of Mr. Graham. Mr. Cameron outlined a number of other building projects as summarized at Tab C of Exhibit 4 within the Birch Beach community that have also relied upon the survey stakes of Mr. Graham. Mr. Cameron conceded that he did not know if all of the projects listed had actually obtained a building permit from the Municipality. He could only speak regarding this issue concerning his own property and that of his fathers at Lot 16.
Mrs. Lorretta Brassard
96She is the eldest daughter of Mr. and Mrs. Zanette and thus the sister of Ann Mitchell. She was born in 1942 and was six years old when the Zanette’s purchased the camp on Lot 8. She went all summer long to the camp throughout her school days. This continued once she had children of her own. Even since the camp was purchased by Ann and Paul Mitchell, she has continued to go almost every weekend to visit as Ann and Paul have an open door policy with the rest of the family.
97Mrs. Brassard stated that her father had replaced the garage on the property. She believes that the rebuilt garage was placed in the same spot as the old one as her father was told he could not make in bigger, however she does not really know for certain. Mr. Zanette did the work himself. She could not remember exactly when the garage was re-built but thought it was around the time that she was married, 48 years ago or 1965.
98Mrs. Brassard testified that she and her husband helped her father side the garage. While doing the siding her father had pointed out a stake in the ground. She was also shown a stake on the other side of the beach road as her father also owned property on the north side of the road. Mrs. Brassard was not able to identify a precise location for the stake that she had been shown somewhere near the northwest corner of the garage nor could she recall many details about the physical characteristics of this steel stake.
99Mrs. Brassard also spoke to cutting grass at the camp. She cut the grass from the beach to the road. On the Elliott side of the property, she spoke to the existence of a sort of ditch which ran from where the back house was located to where the barbecue is now located. The ditch had pipes from the cottage draining into it. The ditch ran towards the beach and also towards the road. However, it was not so deep towards the road. She did not cut grass near the northwest corner of the garage in the vicinity of the metal stake she was shown.
100Mrs. Brassard provided evidence that the Exhibit 6 photographs where from a family photo album. The photographs in Exhibit 6 are not all of the photographs in the family photo album. She stated that she chose which photographs from the album to provide to the lawyer.
101Mrs. Brassard agreed that the buildings shown in Exhibit 6, Photo 2 which shows the rear of the Zanette property in about 1953 have all been rebuilt. She stated that the shed or bunkhouse was rebuilt after the garage however she thought it was in the same summer. Mrs. Brassard was uncertain as to when the reconstruction of the buildings actually occurred but thought that it was when she was in grade 8.
102Mrs. Brassard spoke to Exhibit 6, Photo 12 which illustrates the beach side of the property. The photograph shows a retaining wall which Mrs. Brassard stated was built by her father. She had always thought that the right side of the wall, as looking at it from the beach, marked the boundary on that side as its lines up with the hedge. She had always thought the hedge was the boundary on that side of the property.
103When reviewing Exhibit 1 tab 17.4(b) Photo 2, Mrs. Brassard agreed that the ditch was more pronounced towards the lake and that there was really nothing pronounced from the back of the cottage to the road. Mrs. Brassard also testified that the grass cutting went beyond the 3 evergreen trees which the photograph shows as more or less lining up between the northwest corner of the barbecue and the west limit of the garage.
104Mrs. Brassard was not certain how far beyond the 3 evergreen trees the grass was cut. When reviewing Exhibit 1 tab 17.4(b) Photo 3 which illustrate the same area of the property line as Photo 2, but taken from the garage looking toward the lake, Mrs. Brassard was not able add any additional clarity to the limit of the grass cutting.
105When reviewing Exhibit 1 tab 17.4(b) Photo 9 which illustrates the property line between the Elliott and Mitchel property as viewed from the corner of the main Mitchell building looking northerly towards the garage and the road, Mrs. Brassard testified that the barbeque and the concrete pad on which it sits were constructed at different times, however she was uncertain as to the timing.
106Mrs. Brassard was not aware of any disputes with the Elliott's when her father made improvements at the cottage. This was with respect to such things as the garage, the cement pad, the barbecue and the retaining wall at the beach.
Mr. Glen Brassard
107Mr. Brassard spent his career working as a Chartered Accountant. He has been retired for 11 years. He is married to the eldest Zanette daughter (Loretta) in 1965. He has been going to the Mitchel property since the early 1960’s, i.e. even before he and Loretta were married.
108Mr. Brassard testified that the buildings are in the same location now as when he began coming to the property. The exception is the outhouse which is now gone. The garage was re-built before he began coming to the property. However, he did help Mr.Zanette with the siding of the garage and the bunk house.
109Mr. Brassard stated that Mr. Zanette showed him a metal bar that was located 2 or 2.5 feet west of the garage. Mr. Zanette used a spade to remove a dirt plug exposing about 5 or 6 inches of this metal bar. Mr. Brassard understood this metal bar to be on the property line between the Elliott and Zanette properties.
110Mr. Brassard does not recall ever discussing this metal bar with anyone in the family or hearing of anyone discussing the metal bar until 2006 when Mr. de Haan questioned him concerning the stake. They could not find anything and Mr. Brassard does not know what happened to this stake.
111Mr. Brassard was not present when the retaining wall across the front of the property was built, however it was not there when he first began coming to the property. He believes that Mr. Zanette built the retaining wall. It is his understanding that the East end is directly in line with what has been accepted by the Zanette’s as the eastern side of their property.
112Mr. Brassard testified that he did outside maintenance in the early years that he attended at the property; such as mowing the lawn and painting. After Mr. Zanette died, he did much more maintenance on the property; such as building the new front deck, the back porch, wiring improvements and a better bathroom with a tub.
113Mr. Brassard testified that he had installed a water system to draw water from the lake and thus augment the well supplied water. In order to do this he laid pipe to the lake. He dug a trench from the cottage to the West side of the property and the existing ditch located there. He then laid the pipe in the existing ditch, through a culvert and on out to the lake.
114Mr. Brassard described the existing ditch as being 12 to 18 inches deep at the beach and then decreasing in depth as you go north towards the road. The ditch is 3 to 4 inches deep and 18 inches wide at the back of the house or the backyard area of the property. He stated that he always believed the property line was in the ditch because that was the line to which he cut the grass in the backyard and that he always ran the mower down into the ditch. Mr. Zanette had directed him to cut the lawn over to the ditch.
115Mr. Brassard stated that in the front yard area of the property he would trim tree branches for Mrs. Zanette over as far as the ditch. He further stated that Mrs. Elliott Senior had, on occasion, asked him to trim branches on her side of the ditch.
116Mr. Brassard explained that both the concrete pads at the rear of the cottage were there when he began going to the camp. The barbecue was not there and he does not remember exactly when it was constructed. However, it would have been sometime between 1963 and 1973, i.e. between when he started at the camp and Mr. Zanette’s death.
117Mr. Brassard was not aware of any disputes between the Zanette’s and the Elliott's seniors. They always got along well and the Elliott’s would often use the well on the Zanette property to obtain drinking water.
Mrs. Ann Mitchell
118Mrs. Mitchell and her husband purchased the property from her mother in 1999. She is the second youngest of the Zanette children and was born August 1959. She has been coming to the camp all of her life. They would spend all of their summers at the camp. It is a 30 to 40 min. drive from their home. The camp was also used on weekends all year round.
119Mrs. Mitchell testified that she often cut the grass. Her father was very specific that she cut to the middle of the ditch as this was the property line. In her opinion, the ditch is clearly defined. It runs from the road to the beach. It is a shallow concave ditch. In viewing Exhibit 1 Tab 17.4 (b) Photo 9, Mrs. Mitchell stated that the stack of wood was in the middle of the ditch.
120Mrs. Mitchell stated while reviewing the Exhibit 7 photo that this photo showed the corner of the garage and some patio stones she had placed a few years ago to mark out her garden. The stones were placed after Bruce and Carla Elliott took ownership of the Elliott camp. The stones protrude may be afoot beyond the west edge of the garage and are located were the old outhouse stood. The stones were removed by someone once and thrown in their back yard.
121Mrs. Mitchell testified that she was aware of the metal stake near the rear corner of the garage as she had stubbed her toes on the stake on numerous occasions while helping her father with cutting kindling on a stump near the back corner of the garage. Her description of the location of this metal stake was vague.
122Mrs. Mitchell stated that she showed the stake to Mrs. Elliott Sr. sometime after the Graham survey during a discussion concerning the location of the Mitchell garage. At the time, Mrs. Elliott Sr. was assuring Mrs. Mitchell that the Elliott’s would not make them take down their garage.
Mr. Paul Mitchell
123Mr. Mitchell testified that he has been coming to the camp since 1980. He had always thought the ditch was the boundary between the camps because he had always been instructed to cut grass over to the ditch. He was told that it was the limit of the property by Mr. Brassard.
124Mr. Mitchell also stated that he trims tree branches along the west side of the camp building itself, over as far as the ditch. He does this to keep clear of brush his access to the crawl space beneath the camp.
125It is Mr. Mitchell’s understanding that Mr. Zanette erected the concrete block foundation during his ownership of the camp. This created the crawl space beneath the camp which Mr. Mitchell utilizes a couple of times a year, typically in the spring and the fall as it provides access to various items including plumbing and wiring. Access can be gained from either side of the camp.
126Mr. Mitchell was not aware of the Mr. Graham survey at Lot 7 being 52R-10235 deposited January 3, 1996 at the time he and his wife purchased the camp from Mrs. Zanette in 1999. Mr. Mitchell stated that when he and his wife purchased the camp he was not deeply involved and that Mrs. Zanette, Mr. Brassard and his wife took care of the transaction. Nothing was ever brought to his attention concerning any potential boundary issues.
127Mr. Mitchell stated that he has always had a good relationship with Bruce and Carla Elliott. However, matters deteriorated in the fall of 2005 when a load of wood was placed on what he believed to be his property. He assumed that Bruce Elliott had placed the wood in this location as the wood had previously been on Mr. Elliott’s property.
128Mr. Mitchell advised that he consulted with a lawyer and surveyor when this occurred. Letters are exchanged as the dispute deepens. Eventually, Mr. de Haan completes a survey of the Mitchell property.
129Mr. Mitchell testified that he met with Mr. Elliott in the presence of Mr. Cameron subsequent to the completion of the survey by Mr. de Haan and advised Mr. Elliott that he thought the limit marked by Mr. de Haan was where it should be. The limit was clearly visible as all stakes were in the ground and still clearly marked. He further states that he and Mr. Elliott agreed to “bury the hatchet” and shake hands. Mr. Mitchell was able to remember many details as to when this meeting took place or even what season of the year the meeting occurred.
130Mr. Mitchell goes on to state that this was not the end of the dispute as Mr. Elliott decided to build a fence along the limit establish by Mr. Graham’s survey of late 1995 (i.e. 52R-10235). Mr. Mitchell was not consulted concerning the construction of the fence.
131Mr. Mitchell advised that he has never seen water flowing in the ditch or swale. However, he does keep the ditch/swale/depression clear of leaves and debris so that water flow will not become impeded. Mr. Mitchell was not forth coming with any estimates of the size of this feature, either width or depth during cross examination.
132Mr. Mitchell testified that he did not deal with Mr. de Haan while he was at the property but that Mr. Brassard had spoken with Mr. de Haan because he had more knowledge regarding the history of the property.
Conclusions Concerning Evidence
I conclude the following items from the testimony of the lay witnesses;
1331. All of the lay witnesses testified that they were not aware of any boundary problems within the Birch Beach community until the present dispute. While various surveys had been completed within the subdivision, the results were accepted by the respective property owners.
1342. There was something made of metal in the ground at or near the rear or Birch Beach Road limit of the Zanette property. This object was between the Elliott and Zanette properties and had significance for Mr. Zanette as he took the time to show the object to his eldest daughter and her husband. This object is no longer there.
1353. The ditch/swale feature was the accepted boundary between the Zanette and Elliott properties prior to any current surveying work being completed.
Summary of Testimony from O.L.S. David Kovacs
136Mr. Kovacs was recognized as an expert witness capable of providing opinion evidence before the tribunal. Counsel for the Applicant led Mr. Kovacs through all portions of his extensive Survey Report and supporting documentation being Exhibit 1 to these proceeding. I will not outline all of Mr. Kovacs’ testimony but will paraphrase the portions that I have found useful as well as summarizing his boundary retracement methodology.
137Once engaged to complete a survey of the boundaries of Lot 7 for Mr. Elliott he proceeded with his research of the title records and the records of other surveyors. It soon became apparent that there were conflicting survey opinions within the Birch Beach subdivision plan.
138Mr. Kovacs stated that his research did not reveal any field notes being available for Registered Plan 694 as prepared by Mr. Flook. He did comment that in his experience he would often find discrepancies’ with surveys prepared by Mr. Flook. It was also his opinion that wood posts to mark the property corner on Registered Plan 694 would be typical for a survey of this era.
139The first survey that was found after the subdivision survey was a Phillips and Benner road survey from 1940 which was completed for the municipality, according to Mr. Kovacs. He commented that there are survey monuments shown on this survey, however the plan does not say which were found or set during the survey. There are no field notes available for this survey in order to determine the evidence found and utilized in retracing the limit of the Birch Beach subdivision.
140Mr. Kovacs commented upon the 1958 Phillips and Gavin survey for Lot 2. It was his opinion that the two found stakes (marked O.S. in the field notes) were indeed original stakes as set by Mr. Flook when the survey for Registered Plan 694 was completed. Mr. Kovacs also noted that the northerly or road side stakes set as a result of this survey were set in the road bed according to the field notes.
141In his opinion, Phillips and Gavin used original evidence to establish the road limit and not the physical road location as utilized by Mr. Graham. Mr. Kovacs did not elaborate upon exactly what method was utilized by Phillips and Benner to establish the limit of the road during their survey of Lot 2.
142Mr. Kovacs commented upon the sketch which he prepared (Exhibit 1, tab D.3.3) to illustrate the measurements that Phillips and Gavin took to the apparent property lines along the road (rear) limit of this tier of lots in 1958. It was his observation that the 1958 topography still existed today and that even in 1958 there were encroachments.
143Mr. Kovacs comments briefly upon Mr. Graham’s 1986 work for the staking of Lot 11. He states that Mr. Graham does not use “occupation” to set the sideline lot limits.
144Mr. Kovacs provides brief comments upon the subsequent surveys by Parsons, J.D. Barnes, Padovan, Maskell and Card. He observes that the sharing of information amongst the local surveyors was not particularly good from what he has heard. This can lead to problems arising which may eventually result in a Boundaries Act application.
145Mr. Kovacs commented specifically upon Mr. de Haan’s survey of Lot 8, being Plan 52R12592. They agree per the rear or road limit of the lot. However, Mr. Kovacs cannot accept the method employed by Mr. de Haan to set the limit between Lots 7 and 8. It is his view that the occupational evidence accepted as the best evidence of the limit between Lots 7 and 8 is too subjective in nature. He further commented that no other surveyor has adopted this approach within the Birch Beach subdivision.
146Mr. Kovacs explained his survey methodology for the preparation of the Boundaries Act plan in some detail. I paraphrase as follows:
- The rear or Birch Beach Road limit;
o Held the round iron bar at the northwest angle of Lot 27 being a renewed monument of an original subdivision stake.
o Held the northeast angle of Lot 2 as retraced by Phillips and Gavin in 1958 and subsequently renewed by Bill Parsons in 1987 when surveying Lot 3. He did this by setting plan distance from the southeast corner of Lot 2 as shown on the plan prepared by Bill Parsons.
o This re-establishment agreed well with the Philips and Benner pipe on the north side of Birch Beach Road as set in the 1940 road survey.
- The front or lakeside limit;
o Held the iron bar at the southeast angle of Lot 2 as this is a renewal of the wooden stake set by Philips and Gavin in their 1958 survey of Lot 2.
o Held the Padovan monument found at the southeast angle of Lot 15, being on the Lot15/16 boundary. No explanation was provided by Mr. Kovacs’ for his reasoning in accepting this monument.
- Sidelines of Lot 7;
o Found that the distance along the rear limit between the northwest angle of Lot 27 and the northeast corner of Lot 2 fit Registered Plan dimension. Also found that the Registered Plan dimension along the road fit to the Padovan monument found at the northwest angle of Lot 20. Thus the rear corners of Lot 7 were set at Registered Plan distance.
o Found that the distance between the southeast angle of Lot 2 and the southwest angle of Lot 15 was short by 0.863 meters (2.83’) and distributed this shortage by proportioning a portion into each lot.
o The sidelines were then established by joining between the Lot corners as established along the rear and the front limits of the lot.
147Mr. Kovacs did speak with Mr. Brassard concerning the iron bar purported to be in the vicinity of the northwest corner of Lot 8, i.e. near the corner of the garage. Mr.Kovacs looked diligently for this piece of iron, however he was not able to find anything other than a square topped steel bolt which was upright in the ground. He did not make any measurements to the bolt that he found, but estimated that is was near the west edge of the garage and maybe 2 feet north of the garage.
148He also observed that he could not find any documentary evidence regarding a survey monument in this location. Mr. Kovacs also commented regarding the evidence provided by Mr. Brassard as in his view it was conflicting.
Summary of Testimony from O.L.S. Howard Graham (retired)
149Mr. Graham was recognized by the tribunal as an expert witness capable of providing opinion evidence concerning the boundaries within this tier of lots on Registered Plan 694. Mr. Graham is a retired Ontario Land Surveyor who no longer holds an active license from the Association of Ontario Land Surveyors. However, as Mr. Graham has completed a number of surveys within this tier of lots, the tribunal believes that it was appropriate to hear Mr. Graham’s testimony and give weight in accordance with his current status.
150Mr. Graham completed his first survey in the fall of 1986 when he staked the boundaries of Lot 11 and Lots 21 and 22. There was no plan prepared for either of these surveys. The field notes for the Lot 11 survey are contained in Exhibit 1, Appendix D.4. The field notes for the work at Lots 21 and 22 were not put before this tribunal.
Mr. Graham explained his survey retracement methodology as follows;
151He found the survey monument at the Northwest corner of Lot 27 and then proceeded westerly using the road for guidance while looking for additional survey monuments. He did not find anything until he reached the lot 2/3 line. At the 2/3 line he found of wood stake which a local person had identified with a piece of iron rod standing up next to it.
152Mr. Graham stated that he tried to identify occupational evidence or conventional boundaries at the property lines in between the 2/3 lot line and Lot 27. He did this on both the road and the lake frontage of the lots. He found nothing that he felt was conclusive. He defined conventional boundaries as those that appear to be agreed to by adjoining owners.
153Mr. Graham also testified that he spoke to local property owners. However, he did not identify anyone specific to whom he spoke. He stated that his discussions with local owners were not helpful and that the persons he spoke with claimed to live in harmony with their neighbors. The owners said their focus was to the Lake side of their properties and they were not worried about the roadside very much.
154Mr. Graham decided to accept the wood stake that he found at the 2/3 line because it matched the edge of the road as well as a series of trees that did appear to be evidence of an occupational limit between Lots 2 and 3. Mr. Graham also spoke about an article written in the publication The Canadian Surveyor by Mr. Marsh Magwood, Q.C. entitled The Law and the Surveyor in which it is stated that when a surveyor finds a corner that all owners have lived to or used the surveyor should not upset the neighborhood.
155As Mr. Graham had found no original evidence between Lots 2 and 27 he applied the methodology set out in Section 55 of the Surveys Act; that is to join between evidence and apply proportioning to deal with any surplus or shortage relative to the plan dimensions. Mr. Graham found a small shortage in the measurement between the Northwest corner of Lot 27 and the wooden stake he accepted at the 2/3 line. This resulted in a small shortage for each of the lot frontages of approximately 4 or 5/100 of a foot.
156He proceeded to set out Lot 11 corners on Birch Beach Road accordingly. He continued his survey by setting the sidelines at 90° to his established road limit and at plan depth of 175 feet, both as called for on Registered Plan 694.
157Mr. Graham acknowledges that the garage located near the back or roadside of Lot 11 does encroach over the boundary line that he establishes by this retracement method.
158Mr. Graham finds that the edge of the physical road from Lot 1 to Lot 27 is a straight line and more or less parallel with the road limit that he has accepted. He expresses the opinion that the road was built when the original subdivision was created. However, he does not provide any evidence to support this opinion.
159Mr. Graham comments upon the Phillips & Brenner road survey of 1940 which suggests that there is a 66 foot width for the road. He is not able to accept this work as there are no field notes available and the plan produced for this survey does not show any evidence regarding how the rear limit of the tier of subdivision lots was retraced for this survey. It is Mr. Graham’s opinion that the new widened road limit could have been set at more than 66 feet from the rear limit of the subdivision lots.
160Mr. Graham describes that he was contacted by Mr. Parsons, O.L.S. in late 1986 as Mr. Parsons was conducting a survey on Lot 3. Mr. Parsons was not in agreement with the alignment of Birch Beach Road as established by Mr. Graham. Mr. Parsons was of the opinion that the Lot 2/3 corner at Birch Beach Road should be established according to the location shown in the field notes and plan for the Phillips & Gavin 1958 survey of Lot 2.
161Mr. Parsons delays finalizing his survey until the spring of 1987 as Mr. Graham wanted to conduct additional field work in order to verify and satisfy himself that the work he completed in the fall of 1986 was correct. Mr. Graham returns to the Birch Beach subdivision in early April. He conducts additional field work to measure the location of the two wooden stakes at the front of Lot 2 from the Phillips & Gavin 1958 survey relative to his prior field work. These field notes are found in Exhibit 1 Appendix D.6.1.
162In essence, the two surveyors agree to disagree. Mr. Graham was not swayed by any of Mr. Parsons’ arguments, or by his additional field measurements. Mr. Graham is of the opinion that he has found the wood stake in the location that it was set by Phillips & Gavin and that it should be accepted as such. It should not be "moved" to the location that Phillips & Gavin intended.
163Mr. Graham moves on to explain his surveys with respect to the shore road allowance created by Registered Plan 694 between Lake Superior and the front limit of the tier of subdivision lots. His methodology is the same as for his 1986 surveys. He establishes the rear or Birch Beach Road alignment as before, proportions to set the rear lot corners and then establishes the front corners at 90° to the road limit with a depth of 175 feet.
164These lot limits are then projected across the shore road allowance to create reference plan Part boundaries to facilitate the road closure and ultimate conveyance to the adjacent upland lot owners. There is no new survey evidence or methodology involved so I will not deal with these surveys because they add no additional guidance to the retracement of the boundaries under application.
165Mr. Graham did point out that a number of other surveyors had worked within this tier of subdivision lots however no one had contacted him concerning his work except for Mr. Parsons in late 1986.
166During cross-examination by Mr. de Rijcke, Mr. Graham did reluctantly concede that no other surveyor has agreed with his retracement of Birch Beach Road. He also agreed that he has always worked for private property owners within this tier of lots and that he has never had the Township as his client while working in the Birch Beach subdivision.
167Mr. de Rijcke also questioned Mr. Graham concerning Section 55 of the Surveys Act and his views concerning occupation or conventional lines or even adverse possession. Mr. Graham stated that he did not find any conventional lines that he could identify. He did find a bit of adverse possession but that does not change any of the lot boundaries.
168Mr. de Rijcke queried Mr. Graham concerning the work of Mr. de Haan. In particular, he was asked if he considered occupational evidence for the establishment of the line between Lots 7 and 8 in 1986. Mr. Graham testified that there was not anything definitive in 1986 so he proportioned.
Summary of Testimony from O.L.S. Peter de Haan
169Mr. de Haan was recognized by the tribunal as an expert witness capable of providing the tribunal with opinion evidence concerning boundaries.
170Mr. Harris led Mr. de Haan through his report with the 5 attachments thereto being Tabs A through E. The entire report was filed as Exhibit 5.
171Tab A of the report is a book entitled "Birch Beach Remembers" by Diane Matson. This book was produced in 1994 by the Birch Beach Campers Association. Mr. de Haan explained that this book provided some general historical background as it chronicles the order of settlement in this tier of lots in the Birch Beach subdivision. Mr. de Haan pointed out that Lot 8 was one of the first Camp's settled. He referred the tribunal to page 9 which shows that the owner of Lot 8 in 1933 was Mr. Hawkins.
172Tab B is an affidavit from Mr. Glenn Brassard concerning the metal stake at the Northwest corner of Lot 8. Mr. de Haan reported that he never found this stake and that he was unable to find any documentary evidence that such stake was set by a surveyor. He concludes that a property owner must have put it there. However he does not know if it was an agreed upon property corner between the 2 property owners or if it was placed by one property owner.
173Tab C is a sketch to illustrate his boundary for the limit between Lots 7 and 8 relative to the applicant’s boundary as established by Mr. Kovacs. Mr. de Haan testified that he prepared this sketch specifically for his report.
174Tab D and E are the field notes and plan of survey which he prepared in conjunction with a survey he has completed on Lot 1 in February and March of 2012. Mr. de Haan included this information as it illustrates that there are dimensional problems with Registered Plan 694. Mr. de Haan pointed out that the Birch Beach Road frontage for Lot 1 is very short, i.e. approximately a 4 metres (13 feet) shortage. Similarly, the front or lake side frontage of Lot 1 is short 1.2 metres (4 feet).
175Mr. de Haan explained that Mr. Mitchell had initially contacted JD Barnes limited concerning the dispute regarding the 7/8 lot line in 2005. He had spoken with a former manager at that time. However, JD Barnes was not engaged to complete a survey of the Mitchel property at that time.
176Mr. de Haan reported that JD Barnes was contacted again in May of 2006 by Mr.Mitchell. Mr. Mitchell wanted him to come out to the property and have a look at the line of Mr. Graham's which Mr. Elliott had flagged on the ground. Shortly thereafter, Mr. de Haan attended at the property and met with Mr. Brassard and Mr. Mitchell. He and Mr. Brassard viewed and discussed the property line between 7/8. Mr. Mitchell did not remain present for this meeting, but went inside the camp.
177JD Barnes was engaged to conduct a survey of the Mitchel property. A field crew was sent to Birch Beach on May 8 to tie in evidence and bring it back to the office for analysis.
178Mr. de Haan speaks to the proportioning method (under Section 55 of the Surveys Act) utilized by both Mr. Graham and Mr. Kovacs. He states that this is a valid approach but in his opinion there needs to be ground check to make sure it represents what is on the ground. In this tier of lots, there are lots which fit the proportion method and some that do not. In particular, when he looks at the proportioned line between 7/8 it is his opinion that this solution does not fit the occupation.
179It is Mr. de Haan’s view that proportioning does not allow for blunders that may have been present in the staking of the original subdivision. He states that a group of lots could have a surplus and then the next group of lots a shortage when or if a blunder has occurred. He points out that there is a 3 foot shortage between Lot 2 and Lot 16 along the lake frontage which Mr. Kovacs proportions.
180Mr. de Haan also points out the fact that Mr. Flook the surveyor of the subdivision plan is noted locally by surveyors as having inconsistencies in his work. This was mentioned by Mr. Kovacs during his testimony.
181Mr. de Haan stated that as the 7/8 proportioned lot line solution did not fit the occupation, he felt it was appropriate to consider the occupation as evidence of the lot line. He believes the cabin was built in 1924. He does not provide an explanation regarding how he reached this conclusion. He goes on to speculate that in all likelihood all 4 property corner stakes were there when the cabin was built. He concludes that the owner (Hawkins) would not have built the cabin right on the lot line.
Conclusions Concerning Testimony of the Surveyors
182There has been confusion within the Birch Beach subdivision concerning the retracement of the south limit of Birch Beach Road. There are two separate and distinct alignments for the road limit. Essentially, there is the alignment established by Philips & Brenner in 1940 and secondly, the alignment followed by Mr. Graham.
183Not all surveyors who conducted surveys in this subdivision following one or the other of these road alignments, but instead some ended up using a mix of found survey monuments from the two different alignments. I would attribute these “acts of confusion” to be the result of poor or insufficient documentary research.
184I found Mr. Graham’s testimony to be distinctly lacking as it did not provide the tribunal with an explanation of the documentary research he undertook prior to his first surveys in this tier of lots.
185The two distinct road alignments have also resulted in two different alignments for the front or lake side limit of this tier of lots. Again, we have the Philips & Gavin alignment and the alignment established by Mr. Graham.
186Mr. Graham has consistently followed his alignment as established for both the front and rear limits of this tier of lots in the fall of 1986 when he surveyed Lots 11, 21 and 22. All other surveyors have followed the Philips & Gavin alignment, although with some confusion still present.
187I accept Mr. Kovacs testimony and interpretation of the Philips & Gavin field notes for the survey of Lot 2 in 1958 regarding the location of found original monuments from the subdivision survey by Mr. Flook; that is at the northwest corner of Lot 27 and at the southwest corner of Lot 2.
188I accept that Mr. Graham and Mr. Kovacs have established the sidelines of the lots by very similar methodologies; that is to proportion between last ascertainable corners on either side of the lost corners as set out in Section 55 of the Surveys Act. Their differences in the physical location of the sidelines of Lot 7 are related to both their overall disagreement regarding the alignment of the front and rear boundaries of this tier of lots and then their interpretation of the last ascertainable corner on either side of the lost corners.
189I accept that Mr. de Haan has not followed the proportioning methodology of Mr. Graham or Mr. Kovacs concerning the establishment of the east limit of Lot 7. Mr. de Haan has instead relied upon the physical occupation by the Zanette/Mitchel property owners. He has concluded that this represents possession which can reasonably be related back to the time of the original survey and original monuments.
CLOSING ARGUMENTS
190The closing arguments were submitted to the tribunal and opposing counsel in writing simultaneously by a staggered series of courier deliver date on a pre-arranged schedule. I have carefully reviewed all of the submissions prepared and submitted by counsel in arriving at my decision.
191I will not be providing a written synopsis of their submissions as part of these reasons.
FINDINGS AS TO EVIDENCE
192I would like to take this opportunity to thank counsel for their courtesy at the Hearing and their submissions before this Tribunal.
193In making a decision as to this application, I have carefully reviewed and considered all the material that was submitted with the application and objections, the evidence, exhibits, testimony and closing arguments that were submitted at the Hearing, as well as the applicable law.
194There are two issues to resolve:
The conflicting alignment of the front and rear limits of Lot 7 as evidenced by the survey work of Mr. Graham and that of Philips & Gavin et al.
What is the best available evidence for the establishment of the side lines of Lot 7?
Conflicting alignment of front and rear limits
195The first issue can be addressed by an examination of the common law with respect to the hierarchy of evidence. In Thelland v. Golden Haulage Ltd [1989] O.J. No.2303 Action No.759/85, Mr. Justice Stortini D. C. J. states,
"It is also common ground that a surveyor shall, when re-defining
boundaries, rely on the following evidence in the order named:
(a) Natural boundaries;
(b) Original monuments;
(c) Fences or possession which can reasonably be related back to the
time of the original survey;
(d) Measurements. (as shown on the plan or as stated in the metes and
bounds description)."
196Natural boundaries are not involved in this dispute. As previously noted and accepted as fact, there are two original monuments for this subdivision which have been perpetuated within the documentary evidence. All surveyors have used the perpetuated original monument located at the northwest corner of Lot 27.
197The original monument found in 1958 by Philips & Gavin at the southwest corner of Lot 2 was not used by Mr. Graham. Mr. Graham provided the tribunal with no explanation as to why he did not accept this original monument as a point marking the front limit of this tier of subdivision lots. Instead, Mr. Graham established the front limit of the lots at a distance of 175 feet from the rear limit of the lots as he had retraced same.
198Clearly, Mr. Graham has given measurements more weight than the original monument found in 1958 and perpetuated by Philips & Gavin and other surveyors down to the present. I cannot accept this approach. The location of the original monument must be given priority over measurements.
199This brings me to the rear or Birch Beach Road limit of this tier of lots, as retraced by Mr. Graham. Mr. Graham has submitted three arguments for his retracement of this boundary;
Mr. Graham’s road alignment creates a straight line for the road from Lot 1 through to Lot 32 as shown on the original Registered Plan. The road alignment of the other surveyors creates a bend at the northwest corner of Lot 27 that is not there on the Registered Plan.
Mr. Graham argues that the physical location of the road and the boundary mark he found at the northwest corner of Lot 2 in 1986 should be accepted as the boundary. He quotes the publication of a former Director of Titles, W. Marsh Magwood, Q.C., being entitled “The Law & the Surveyor” in support of this assertion.
We do not know what evidence Philips & Benner used to establish the limits of Birch Beach Road during the survey of 1940 which widened the road as created by Registered Plan 694 an additional 33 feet. Thus setting out a road width of 66 feet from the iron pipe set by Phillips & Benner in 1940, as located at the bend in the north limit of the widened road, to establish the southerly limit of Birch Beach Road is not justified.
200Once again, these arguments need to be examined in light of the heirarchy of evidence set out by Mr. Justice Stortini.
201Mr. Graham’s first argument for his alignment of Birch Beach Road is that his method creates a straight line from Lot 1 to Lot 32 as called for on Registered Plan 694. I find this argument to be based upon measurements which are to be given the least weight when retracing original boundaries according to the priority of evidence set out by Mr. Justice Stortini above.
202This argument may be compelling when there is no other evidence of a higher priority available for the retracement of these original boundaries. However, this is not them situation before the tribunal with respect to Birch Beach Road as I will further set out below.
203Mr. Graham’s second argument with regard to the physical location of the road and the monument found at the northwest corner of Lot 2 are supported by a quote from a paper entitled “The Law and the Surveyor” given by W. Marsh Magwood, Q.C. and being the substance of a series of lectures given to members of the Surveys and Mapping Branch of the Department of Mines and Technical Surveys, Ottawa, in January, 1960.
204In his paper, Mr. Magwood quotes extensively from a Michigan case Diehl v. Zanger, 39 Mich. Reports, 601 (Sup. Ct. 1878). The quote that Mr. Graham is relying upon and which he set out in his letter to surveyor Mr. William Parsons (Tab 6.2 of Exhibit 1) when explaining his methods for his 1986 retracement of the limit of Birch Beach Road are actually the words of Mr. Justice Cooley in Diehl v. Zanger.
205Mr. Magwood is speaking to the Judicial Functions of a Surveyor and quotes Mr. Justice Cooley who states;
“He has no right to mislead, and he may rightfully express his opinion that an original monument was at one place, when at the same time he is satisfied that acquiescence has fixed the rights of parties as if it were at another. But he would do mischief if he were to attempt to ‘establish' monuments which he knew would tend to disturb settled rights; the farthest he has a right to go, as an officer of the law, is to express his opinion where the monument should be, at the same time that he imparts the information to those who employ him, and who might otherwise be misled, that the same authority that makes him an officer and entrust him to make surveys, also allows parties to settle their own boundary lines, and considers acquiescence in a particular line or monument, for any considerable period, as strong, if not conclusive, evidence of such settlement. The peace of the community absolutely requires this rule.”
206It was Mr. Graham’s testimony that the parties had acquiesced in the monument he found at the northeast corner of Lot 2 although he did not provide any evidence as to why he had reached this conclusion. He stated that a local person had marked or identified the wood stake with a piece of iron rod standing up. However, he never spoke with the person who did this to ascertain what reasons compelled them to take this action nor how the wooden stake came to be in this location.
207Mr. Graham also opined that the wood stake he found at the northeast corner of Lot 2 was in the original location as set by Phillips & Gavin in 1958. However, there is no indication in Mr. Graham’s field notes from October 1986 that he attempted to verify the location of the monuments that he found on Lot 2 and as set by Phillips and Gavin according to their 1958 plan and field notes. Page 5 of the Graham field notes (Exhibit 1, Tab D.4) illustrates finding the two wooden stakes at the front corners of Lot 2. However, there are not enough measurements taken to allow the location of these monuments to be determined relative to the other monuments that Mr. Graham found or set.
208Mr. Graham also expressed the opinion that the road pre-dated the stake he found at the Lot 2/3 line but again provided no evidence to support this statement. There was no evidence from any of the expert witnesses as to timelines concerning the construction or maintenance of the Municipal road.
209Mr. Graham completed his survey and accepted the found wooden stake as marking the northeast corner of Lot 2 at the Birch Beach Road limit without any verification of the location. The wood stake and bent round iron bar were accepted as marking the property corner without corroborating measurement checks being made. This is not standard land surveying procedure.
210It is not until after he is contacted by Mr. Parsons, O.L.S. who is questioning Mr. Graham’s Birch Beach Road alignment that Mr. Graham returns to the property in the spring (April) of 1987 to make additional measurements. These measurements provide data that shows the monument that Mr. Graham has accepted as marking the northeast corner of Lot 2 is approximately 7 feet from the location in which the wooden stake was set according to the Philips & Gavin plan and field notes.
211Mr. Graham has failed to convince me that the Municipal road authority and the property owners along Birch Beach Road have somehow acquiesced in the location of the wood stake that he accepted as the road limit. In fact, it was Mr. Graham’s testimony that the local property owners to whom he spoke were not worried about the road side very much. I conclude from this comment that the property owners simply did not know where the roads limit was actually located, not that they acquiesced in the location that Mr. Graham had retraced.
212Mr. Graham’s argument and the conclusion he reached based the comments of Mr. Justice Cooley, as quoted by Mr. Magwood, are simply not supportable from the evidence before this tribunal.
213In addition, Mr. Graham has not captured all that Mr. Justice Cooley is providing as guidance to surveyors in his quote. Mr. Graham has not included the concluding paragraph of Mr. Justice Cooley’s remarks, being;
“From the foregoing it will appear that the duty of the surveyor where boundaries are in dispute must be varied by the circumstances. He is to search for original monuments, or for the places where they were originally located, and allow these to control if he finds them, unless he has reason to believe that agreements of the parties, express or implied, have rendered them unimportant.”
214Mr. Justice Cooley directs the surveyor to search for the original monuments or for the places where they were originally located. This is consistent with the hierarchy of evidence previously set out by Mr. Justice Stortini. The primary goal in boundary retracement is to find the original monuments in their original location.
215This brings me to Mr. Graham’s third argument. I agree with him on the first portion of Item 3 above as regrettably there are no field notes available for this survey and without field notes we will never know for certain the evidence found or the methodology utilized in the conduct of this survey. However, I do not agree with Mr. Graham concerning the second portion of his argument.
216I would also note that Mr. Graham does not show any measurements in his 1986 field notes to this iron pipe as set in 1940 by Phillips & Benner when surveying the 33 foot widening for Birch Beach Road. Mr. Graham had no idea how his accepted road alignment matched with the iron pipe and the widened road limit as established by Phillips & Benner in 1940.
217While we cannot say with complete certainty what specific evidence was used to align Birch Beach Road in 1940, we can discern that the evidence used was consistent with the original stake found by Phillips & Gavin when conducting their survey of Lot 2 in 1958. This is the same survey firm and it is not unreasonable to expect that the field notes of Phillips & Benner for the 1940 survey were available to Phillips & Gavin when conducting their 1958 survey.
218As I stated previously, I consider the field notes for the survey of Lot 2 completed in 1958 by Phillips & Gavin to be foundational evidence. These field notes provide compelling indirect evidence that the Phillips & Benner survey of 1940 did in fact find evidence of the original alignment of Birch Beach Road. The new widened road limit was set to provide for a 66 foot wide road from the evidence used to retrace the limit of the existing 33 foot wide Birch Beach Road as created by Registered Plan 694.
219This is demonstrated by the location of the original stake found at the southwest corner of Lot 2. This original stake is shown on the 1958 field notes to be 174.9 feet from the south limit of Birch Beach Road, while the Registered Plan distance would call for a distance of 175 feet. Given the measurement techniques utilized for land surveying at the time, I would consider this measurement to be spot on.
220As I have previously concluded when discussing the Lot 2 survey of 1958, the alignment of Birch Beach Road for this survey was established by using the iron pipe set in 1940 by Phillips & Benner found at the bend in the north limit of the widened road. The fact that the measurement from this road alignment to an original stake at the front of the tier of lots fits the Registered Plan distance so well is strong supporting evidence for the alignment of Birch Beach Road from the 1940 survey by Phillips & Benner. On a balance of probability, I am driven to conclude that the alignment of Birch Beach Road as retraced by Phillips & Benner in 1940 must have been based upon original evidence of the road alignment from the survey of Registered Plan 694.
221Mr. Graham’s field notes from his 1986 survey work do not provide enough information to be able to verify the location of the monuments that he found marking the apparent limits of Lot 2. While he claims to have been aware of the 1958 survey of Lot 2, he appears to have totally discounted the survey as being of any value in his boundary retracement task of 1986.
222I concede to Mr. Graham that the 1958 field notes by Philips & Gavin are poor in quality as far as clearly setting out the survey method used to retrace the limits of Lot 2, however I am driven to the conclusion that a careful and through review of the material leaves no doubt as to the methodology used and the evidence accepted in the conduct of this survey. I have set out my interpretation of the survey methodology earlier in this decision when specifically discussing this foundational survey. Based upon my knowledge and training as a professional surveyor, I am not able to find any other logical interpretation of the field notes for this 1958 survey by Philips & Gavin.
223I can only conclude that Mr. Graham did not spend sufficient time analyzing this material in order to assign appropriate weigh thereto in his assessment of the available evidence.
224As I have concluded that the alignment of Birch Beach Road has been retraced by Phillips & Benner based upon original monuments, I am not able to support Mr. Graham’s alignment for Birch Beach Road.
225In re-establishing the front or lake side limit of Lot 7, Mr. Kovacs has relied upon the work of Phillips & Gavin in their 1958 survey of Lot 2. He has accepted the perpetuation of the monument that Phillips & Gavin set at the southeast corner of Lot 2. This wood stake was set at a proportioned distance of 49.88’ easterly of the original stake found at the southwest corner of Lot 2 and on a line parallel with the south limit of Birch Beach Road as retraced during the 1958 survey.
226This wood stake, set during the 1958 survey, was found and used by Mr. Parson’s in 1986 when surveying Lot 3. The wood stake was eventually replace with a short standard iron bar in 1992 during the survey of portions of the shore road allowance in front of Lots 2 and 3 completed by Mr. Card and depicted on plan 55R-9088.
227This short standard iron bar located at the southeast corner of Lot 2 has not been disputed by any of the parties before this tribunal. All surveyors working in this area of the subdivision have respected this lot corner as set from the original monument found by Phillips & Gavin at the southwest corner of Lot 2, with the exception of Mr. Graham. Mr. Graham never provided any reason for not accepting the front lot corners on Lot 2, as set by Phillips & Gavin, when he conducted his retracement work.
228I have set out above why I am not able to support Mr. Graham in his rejection of the evidence found and utilized by Phillips & Gavin for their 1958 survey of Lot 2. As with Mr. Kovacs, I find no reason to dispute this lot corner as re-established by Phillips & Gavin and perpetuated by Mr. Parsons and Mr. Card.
229The evidence used by Mr. Kovacs to the east of Lot 7 along the frontage of this tier of lots was a monument that he found at the Lot 15/16 corner. This iron bar was set by Mr. Padovan in 1990 when he posted the corners of Lots 15 and 20 while he was completing the field work for the survey that became deposited plan 55R-8325. As previously set out, it is difficult to state with certainty the retracement methods or the extent of the evidence assessed by Mr. Padovan when he completed the marking of the corners of these two lots.
230Mr. Padovan created a hybrid street line by utilizing found survey monuments from the two existent alignments for Birch Beach Road; that of Phillips & Benner at the west end and that of Mr. Graham at the east end. The fact that the survey monuments which Mr. Padovan set and as now found by Mr. Kovacs “fit” the Phillips & Benner road alignment and that the front lot corners are found to be 175’ south of this road alignment is more a matter of good luck than proper survey retracement based upon a thorough review of all available documentary evidence.
231I am not able to support the use of Mr. Padovan’s survey monument shown by Mr. Kovacs as the southeast corner of Lot 15 on the Applicant’s draft survey plan as being useful as an established lot corner on which to base his proportioned retracement of the east limit of Lot 7.
232No additional evidence was submitted to the tribunal concerning an alignment for the front boundary of this tier of lots. I do note that Mr. Graham’s survey plan being 55R-10976 shows that he found and accepted as the southwest corner of Lot 27 a monument which he identifies as a 3/4 inch round iron bar flared to 1-1/4 inches diameter on top. This monument has the same physical characteristics as the monument found at the northwest corner of Lot 27.
233The evidence before this tribunal, which I accept, is that the monument at the northwest corner of Lot 27 perpetuates an original monument for Registered Plan 694. While I considered aligning the front of this tier of lots to the monument Mr. Graham found at the southwest corner of Lot 27, I rejected this approach as there was no documentary evidence presented to support a conclusion that the monument at the southwest corner perpetuates an original monument.
234I conclude that the priority of evidence requires that measurements be used to retrace the front limit of Lot 7. It will be set at the Registered Plan 694 distance of 175 feet from the south limit of Birch Beach Road, said road limit retraced by Phillips & Benner in 1940, perpetuated by Phillips & Gavin in 1958 and as shown on Mr. Kovacs’ draft survey submitted with this application.
Best evidence of side lines
235The survey method used to retrace the side lines for Lot 7 can be divided into two distinct schools of thought. The vast majority of the surveys conducted in this tier of lots have ascribed to the method set out at Sec. 55(2) of the Surveys Act to establish lost corners; that is by the proportioning between undisputed corners on either side of the lost corner. Mr. de Haan has provided an alternate approach.
236Section 55 of the Surveys Act provides the surveyor with guidance and direction when retracing boundaries within a plan of subdivision. The section reads as follows (underlining mine);
A surveyor in re-establishing a line, boundary or corner shown on a plan of subdivision shall obtain the best evidence available respecting the line, boundary or corner, but if the line, boundary or corner cannot be re-established in its original position from such evidence, the surveyor shall proceed as follows:
If a part of a line or boundary is obliterated, the surveyor shall re-establish it by joining the nearest ascertainable points thereof in the manner shown on the plan of subdivision.
If a corner on a line or boundary is lost, the surveyor shall re-establish it by the method that accords with the intent of the survey as shown on the plan of subdivision and, if it is consistent with the intent of the survey as shown on the plan of subdivision, the surveyor shall determine the distance between the two nearest undisputed corners, one being on either side of the lost corner, and the surveyor shall reestablish the corner by dividing the distance proportionately as shown on the plan of subdivision having due regard for any road allowance, highway, street, lane, walk or common shown on the plan of subdivision. R.S.O. 1990, c. S.30, s. 55.
237I have underlined the clause in the opening paragraph of the section as this is an overriding principle which must be applied before the surveyor resorts to subsections 1 and 2. When dealing with this clause, the surveyor must apply the hierarchy of evidence.
238The clause I have underlined in subsection 2 relates to the actual method applied by most of the surveyors within this plan of subdivision when re-establishing lost corners and thus the lot side lines. Both Mr. Kovacs and Mr. Graham have utilized this approach for establishing the side lines for Lot 7. This is a measurement approach which has the least priority within the hierarchy of evidence.
239Mr. de Haan has retraced the limit between Lots 7 and 8 (i.e. the east boundary of Lot 7) in conjunction with his survey of the Mitchell property, being plan 55R-12592. He has reviewed the same evidence as Mr. Kovacs and Mr. Graham; however he has arrived at an entirely different conclusion concerning the best available evidence of this limit. Mr. de Haan has submitted that occupation represents the best available evidence.
240In order to resolve these two conflicting approaches, I once again turn to the words of Justice Stortini in Thelland v. Golden Haulage O.J. No. 2303 Action No. 759/85. Justice Stortini takes judicial notice of Kingston v. Highland and also of Home Bank of Canada v. Might Directories Ltd. (1914), 1914 CanLII 602 (QC CS), 31 O.L.R. 340, and of Diehl v. Zanger (1878), 39 Mich. 601 and of Palmer v. Thornbeck (1876), U.C.C.P.291 and an article by Lorraine Petzold OLS, Executive Director of the Association of Ontario Land Surveyors entitled The Survey and the Real Estate Transaction, presented to the L.S.U.C. Continuing Legal Education Seminar, October 1983 when he summarizes the law as follows:
“If original monumentation is found and is undisturbed as to location, it must be accepted erroneous as may have been the original survey: See Kingston v.Highland (1919)1919 CanLII 854 (NB SC), 47 N.B.R. 324.
If no original monumentation is in existence, the next acceptable evidence is evidence regarding the original positions of the monumentation or evidence regarding the original running of the line, including possessory evidence. The first establishment of the line need not have been done by a surveyor. Evidence of possession which relates back to the first survey or first establishment of the line would be the best evidence of where the line was originally located. In her article Petzold gives the example of a fence or hedgerow which was erected along a surveyed line some 50 years ago. The survey posts have long disappeared however the occupation or possession line is the best evidence relating back to that first survey. The basis of that statement is found in the case of Home Bank of Canada v. Might Directories Ltd. (1914), 31` O.L.R. 340, where the Ontario Court of Appeal stated:”….the original posts or monuments not being in existence, and there being no direct evidence as to their position, some other mode of ascertaining the boundaries of the lots must be resorted to; and in such a case the best evidence is usually to be found in the practical location of the lines made at a time when the original posts or monuments were presumably in existence and probably wellknown.”
If the original landmarks are not discoverable, the best evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known. Old boundary fences are considered to be superior to surveys made after the monuments have disappeared as evidence of the lot lines.(See Diehl v. Zanger (1878), 39 Mich. 601).
Once the occupation line has been settled and used the onus of proof rests on the person who seeks to disapprove the line and change the possession. (See Palmer v. Thornbeck (1876), U. C. C.P. 291).
If no evidence exists of either original monuments or original line, then the surveyor must refer to the measurements as contained in the deed or on the plan.”
241When I review the evidence before this tribunal, I find that Lot 8 was one of the first properties settled within the subdivision. Mr. Hawkins cabin is reported to be one of the earliest camps built in the subdivision. The source for this information is a 1994 publication entitled “Birch Beach Remembers” written by Diane Matson and commissioned by the Campers’ Association. At Page 1 of the publication, it states that,
“Other cottages started appearing in the early ‘20’s. Mr. Cummings, the area builder had a log cabin where the Camerons are today. Mr. Hawkins, who was the manager of the CPR station in Fort William, had a log cabin where Mrs. Zanette is today."
242As Mr. Hawkins did not purchase the property until July 2, 1929, I must conclude that he and the developer, Mr. MacKenzie, had entered into an arrangement such that the construction of the cabin on Lot 8 could proceed before Mr. Hawkins actually took ownership of the lot. Although not significant in my view, I also note that title to Lot 8 was never actually held by Mr. Hawkins but by Winifred Mary E. Hawkins.
243If I accept the writings in this informal Campers’ Association document, it is reasonable to conclude that Mr. Hawkins constructed the cabin on Lot 8 at a time when the existence of original monuments to guide him in the location of his lot boundaries is self-evident. As one of the earliest lot owners and at a time when very few lots had yet been developed, I cannot envision how all the original property monuments would disappear.
244Mr. de Rijcke spent considerable effort in cross examination of Mr. de Haan suggesting that even if there were original monuments present, Mr. Hawkins could still have gotten the line in the wrong place or alternatively Mr. Hawkins could have built the cabin such that the west edge of the building was on the lot line. I do not accept this line of argument as being reasonable.
245No evidence was presented to refute the timeline for development of Lot 8 as suggested in the Campers’ Association publication. As no reasonable explanation has been given for the absence of original monuments at the time of the initial development of Lot 8, I must accept that Mr. Hawkins would have been guided by original monuments when he developed his property in the 1920’s.
246Substantial evidence was given regarding the long standing use of the Lot 8 parcel along the limit between the Mitchel and the Elliott holdings. This usage extends beyond the line proposed by both Mr. Kovacs and Mr. Graham. The usage has existed for the entire time that the Zanette/Mitchel families have owned the parcel. The usage has included the extent of grass cutting, the access to the crawl space beneath the cabin from the west side of the building, the trimming of brush and tree limbs along the west side of the cabin and the discharge of gray water into the drainage ditch.
247There was a good deal of evidence and cross examination concerning the ditch or swale as some witnesses characterized the feature. I accept that there is a physical feature clearly visible in numerous photographs presented before the tribunal. The size and dimensions of this feature vary along the length of the lot, being more pronounced (narrower and deeper) as one approaches the lake side or front of the lots and being less visible (shallow and wide) in the rear yard or middle portion of the lots to finally being not discernibly visible in the photographs at the rear or road side limit of the properties.
248It was the evidence of the Mitchel witnesses that the Zanette/Mitchel families had always used their property to the middle of the ditch or swale. There was no evidence presented by either the Elliott’s or the Zanette/Mitchel’s that this “perceived” boundary had ever been located elsewhere.
249There was no evidence presented by the Applicant which called into question or disputed the submissions by the Mitchel’s concerning their long standing usage of their parcel beyond the line determined by Mr. Kovacs and Mr. Graham. In fact, Mr. Elliott relied upon the line of usage and accepted the limit as the lot line when he had a septic system with a weeping bed installed on his property. Mr. Elliott testified that he had also consulted with his father (being a prior owner) concerning the location of the property boundary. His father advised that he had always thought the ditch at front or lake side of the lot marked the property line.
250In my view, the line established by Mr. de Haan is a fair representation of this long standing parcel usage and according to the evidence before this tribunal; this was the accepted lot boundary until the arrival of the surveyors and their recent surveys. I am reminded of the words of Chief Justice Cooley in Diehl vs. Zanger;
“Occupation, especially if long continued, often affords very satisfactory evidence of the original boundary when no other is attainable; and the surveyor should inquire when it originated, how, and why the lines were then located as they were, and whether a claim of title has always accompanied the possession, and give all the facts due force as evidence. Unfortunately, it is known that surveyors sometimes, in supposed obedience to the State statute, disregard all evidence of occupation and claim of titles, and plunge whole neighborhoods into quarrels and litigation by assuming to 'establish' corners as points with which the previous occupation cannot harmonize.”
251I see no alternative but to accept the line retraced by Mr. de Haan as the lot line between Lots 7 and 8. In my view, the location falls squarely within the third item in the priority of evidence as set out by Justice Sortini; that is possession that can reasonable be related back to the time of the original survey.
252In my view, the Applicant has failed to satisfy their burden of proof concerning why the proportioned measurements (item d or the lowest priority of evidence) should take precedence over the long standing possession which relates back to Mr. Hawkins development of Lot 8 at a time when it is reasonable to expect that original monuments guided his actions.
253The final limit that needs to be resolved is the west limit of Lot 7 being the line between Lots 6 and 7 or between the Elliott’s and Cameron’s. There was very little evidence presented at the hearing concerning this boundary. In my view, the submission of objector Mr. Cameron concerning this limit was simply that Mr. Graham’s retracement of the boundary ought to be accepted as to do otherwise would be a problem for many people. Further, Mr. Graham’s retracement was reasonable and thus it should be relied upon.
254I am not able to support this reasoning. I must arrive at my decision based upon the weighing of the evidence before the tribunal and the application of the applicable principles guiding boundary retracement as set out in the common law. Both Mr. Kovacs and Mr. Graham have used a measurement approach per Section 55 of the Surveys Act to re-establish this limit. As previously discussed, the location determined by each is different due to the differing evidence upon which they relied. However, their methodology was the same; measure and proportion.
255I am also driven to rely upon Section 55 of the Surveys Act and the measure and proportion method to retrace this boundary as no other evidence was provided to the tribunal concerning this boundary. As set out above, Mr. de Haan’s limit has established the east boundary of Lot 7 and this limit will be used as the eastern most undisputed lot corners.
256To the west, I find the undisputed corners to be at the terminus of the line between Lots 2 and 3 as established by Phillips & Gavin during their 1958 survey of Lot 2. These are the same corners, lying to the west of Lot 7, that Mr. Kovacs used for his measurement proportioning. These corners have been perpetuated over the years by various surveys.
257The lake side corner is now marked by a short standard iron bar set by J.D. Barnes Limited (O.L.S. Card) during the conduct of the survey represented by Plan 55R9088. This monument was set to replace a Wooden Stake set by Phillips & Gavin during their 1958 survey. The wooden stake at the southeast corner of Lot 2 was set at a proportioned distance of 49.88 from the original stake Phillips & Gavin had found marking the southwest corner of Lot 2.
258As already stated, the northeast corner of Lot 2 was also established during the 1958 Phillips & Gavin survey and also marked by a Wooden Stake. This corner was set at Registered Plan distance of 1301 feet westerly along the south limit of Birch Beach Road from the original monument Phillips & Gavin found at the northwest corner of Lot 27. Both Mr. Parsons and Mr. Kovacs have retraced the location of this corner. Mr. Kovacs indicates on his draft survey plan accompanying this application that the corner so retraced continues to be located at Registered Plan 694 distance of 1301 feet (396.545 meters) westerly from the perpetuated original monument at the northwest corner of Lot 27.
259The limit between Elliott and Cameron will be established by joining between the Northwest and Southwest corners of Lot 7 established as follows:
a) Along the rear or Birch Beach Road limit; to establish the northwest corner of Lot 7; proportion between the northeast corner of Lot 7 as established by Mr. de Haan and the northeast corner of Lot 2 as retraced by Phillips & Gavin per their 1958 survey of Lot 2. Based upon the field notes provided by the Applicant’s surveyor, Mr. Kovacs, I calculate the proportioned distance to be 49.22 feet or 15.00 meters for the width of Lot 7 along this boundary.
b) Along the front or lake side limit; to establish the southwest corner of Lot 7; proportion between southeast corner of Lot 7 as established by Mr. de Haan and the southeast corner of Lot 2 as retraced by Phillips & Gavin per their 1958 survey of Lot 2. Based upon the field notes provided by the Applicant’s surveyor, Mr. Kovacs, I calculate the proportioned distance to be 49.33 feet or 15.04 meters for the width of Lot 7 along this boundary.
ORDER
260The applicants, Bruce Elliott and Carla Elliott contended that the true location of the boundaries of Lot 7, Registered Plan 694 in the Geographic Township of MacGregor, in the Municipality of Shuniah, District of Thunder Bay, being part of PIN 62493-0128(LT) are properly illustrated in accordance with a draft Boundaries Act Plan dated December 7, 2011 and signed by D.A. Kovacs, Ontario Land Surveyor.
261Mr. Robert Cameron and Ms. Rhonda Cameron owners of the adjoining property to the west are objecting to the all of the boundary under application. The Cameron objectors are relying upon the prior retracement work within Registered Plan 694 as completed by Mr. Graham, Ontario Land Surveyor (currently retired) in support of their objection to the boundaries as shown on the draft Boundaries Act Plan.
262Mr. Paul Mitchell and Ms. Ann Mitchell are objecting to the easterly boundary under application. The Mitchell objectors are relying upon the plan of their property prepared by Mr. de Haan, Ontario Land Surveyor dated June 1, 2007 and deposited in the Registry Office for the Land Titles Division of Thunder Bay as Plan 55R-12592 on June 5, 2007.
263Therefore, having considered the submissions by all counsel, as well as the evidence, testimony, materials filed with the application and at the hearing as well as the law applicable, I agree with surveyor Kovacs’ retracement of the rear or Birch Beach Road and the front or lake side boundaries of Lot 7 Registered Plan 694 and with surveyor de Haan’s location of the east boundary of Lot 7 Registered Plan 694.
264The west boundary of Lot 7 Registered Plan 694 will be set by joining between the Northwest and Southwest corners of Lot 7 established as follows:
a) Along the rear or Birch Beach Road limit; to establish the northwest corner of Lot 7; proportion between the northeast corner of Lot 7 as established by Mr. de Haan and the northeast corner of Lot 2 as retraced by Phillips & Gavin per their 1958 survey of Lot 2. Based upon the field notes provided by the Applicant’s surveyor, Mr. Kovacs, I calculate the proportioned distance to be 49.22 feet or 15.00 meters for the width of Lot 7 along this boundary.
b) Along the front or lake side limit; to establish the southwest corner of Lot 7; proportion between southeast corner of Lot 7 as established by Mr. de Haan and the southeast corner of Lot 2 as retraced by Phillips & Gavin per their 1958 survey of Lot 2. Based upon the field notes provided by the Applicant’s surveyor, Mr. Kovacs, I calculate the proportioned distance to be 49.33 feet or 15.04 meters for the width of Lot 7 along this boundary.
265Accordingly, the objection by Robert Cameron and Rhonda Cameron is denied and the objection of Paul Mitchell and Ann Mitchell is allowed.
266I DO HEREBY CONFIRM the true location on the ground of the boundaries of Lot 7 Registered Plan 694 to be as set out above.
267I DO ORDER that the Applicant's surveyor causes the above-confirmed boundaries to be properly monumented and that all conflicting survey monuments along these limits be removed.
268I DO FURTHER ORDER that a final plan of the confirmed boundaries be prepared by the Applicant's surveyor, to my satisfaction and be registered in the appropriate Land Registry Office as prescribed by Section 16 of the Boundaries Act. The final plan of the confirmed boundary shall be submitted to this office within three months from the date of this Order, if no appeal is taken, or should an appeal be taken, within two months after the appeal has been disposed of by the Court.
COSTS
269As required by the Boundaries Act, doubt existed as to the position of the boundaries under application. The application and hearing were therefore appropriate and each party was entitled to put forth their evidence on the matter under application. I found that each party has acted in a forthright manner and did not unduly delay the hearing or put forward frivolous objections. I hereby order that each party is responsible for their own costs.
Dated at my office in
Peterborough, Ontario
this 24th day of February, 2016
Jack Keat, O.L.S.
Deputy Director of Titles
Appendix A
Binder titled Report of Investigation Regarding the Limits of Part of PIN 62493-0128(LT), more particularly All of Lot 7, Registered Plan 694 in the Geographic Township of MacGregor, in the Municipality of Shuniah, District of Thunder Bay, prepared by Dave Kovacs, O.L.S.
Municipal consent forms for lot line extensions.
Copy of the application plan marked by Mr. Kovacs to identify original monuments (as perpetuated) for Registered Plan 694.
The binder report from objector Cameron
Mr. de Haan's report and attachments.
Photographs from objector Mitchell labeled 1 to 13.
Mitchell property photo side/corner of the garage.
Mitchell property photo taken by Mr. Mitchell of the fence built by the Elliott's.
Handwritten notes by Mr. de Haan made during the hearing.