THE BOUNDARIES ACT
Director of Titles – Ontario (Boundaries Act)
Registry: Durham
Between: Everett Kerr – Applicant
- and -
Harry Wilmot Vale – Objector
Before: Nancy J. Grozelle, Deputy Director of Titles
BACKGROUND
1An application was made by Everett Kerr, the registered owner of lands described as being All of Lots 17 & 18 and Part of Lot 19 and Part of the 10' Lane, Registered Plan 321, Geographic Township of Reach, now the Township of Scugog, in the Regional Municipality of Durham in accordance with PIN 26793-0026(LT), Municipally known as No. 49 Coulcliff Boulevard; for the purpose of confirming, under the Boundaries Act, the true location on the ground of the northerly boundary of the lands designated as PIN 26793-0026(LT).
2In support of the application, a draft Plan of Survey with the aforementioned boundary shown by a heavy solid line, prepared by the firm of Ivan B. Wallace Ontario Land Surveyors Ltd., and signed by Ivan B. Wallace Ontario Land Surveyor, dated September 30, 2014, was filed together with a Survey Report and supporting documentation.
3A notice of application, together with a copy of the draft plan was sent by registered mail to:
The Regional Municipality of Durham
The Corporation of the Township of Scugog
Everett Kerr
Harry Wilmot Vale
Drew Dowling, Walker, Head Barristers
Ivan B. Wallace Ltd.
F.H. Grander Company Ltd.
D.F.P. Ltd.
Beninger Surveying Ltd.
Schaeffer Dzaldov Bennett Ltd.
Coe Fisher Cameron Ltd.
Alex Martin Ltd.
Delph and Jenkins Ltd.
J.D. Barnes Ltd. Whitby
J.D Barnes Ltd. Markham
MRM Surveying
Omari Mwinyi Surveying Ltd.
Tham Surveying Ltd.
E.W. Bowyer Ltd.
Krcmar Surveying
Salna Surveying
Mitsche & Aziz Ltd.
Sylvestor & Brown Ltd.
Ertl Surveyors
Elliot & Parr Ltd.
Holding & Jones Ltd.
Michael Clancy Ltd.
MMM Ltd.
Ministry of Natural Resources and Forestry, Office of the Surveyor General, Peterborough
Government of Canada, Realty Manager Ontario Waterways, Peterborough
4A notice of objection dated 6 January 2015 was received from Harry Wilmot Vale, being the owner of the abutting parcel being All of Lot 20 and Part of Lot 19, Registered Plan 321, Geographic Township of Reach, now the Township of Scugog, in the Regional Municipality of Durham in accordance with PIN 26793-0025(LT), Municipally known as No. 53 Coulcliff Boulevard, and who objects to the location of the boundary as shown on the draft Plan of Survey prepared by Mr. Wallace in support of the application.
5As a result of this objection, a hearing was convened on June 16, 2015.
6Present at the hearing were:
The Applicant: Mr. Everett Kerr
Counsel for the Applicant: Mr. Drew Dowling
Land Surveyor with the Applicant: Mr. Ivan B. Wallace, OLS
Objector: Mr. Harry Wilmot Vale
Counsel for the Objector: Mr. Robert Karrass
Land Surveyor with the Objector: Mr. Ralph Grander, OLS
7A number of other people attended all or portions of the hearing including several surveying students.
8The applicant presented their evidence through expert witness Ontario Land Surveyor Ivan B. Wallace and witness Everett Kerr who is the applicant. The objector presented evidence through expert witness Ontario Land Surveyor Ralph Grander and witness Harry Wilmot Vale who is the objector.
9Four exhibits, some containing multiple tabs, were submitted during the course of the hearing. The exhibit listing can be found at Appendix A to this Order and Reasons.
10This Order and Reasons will set out the relevant evidence in an overall review of the history of surveys and actions of Surveyors and others from 1929 through to the present, to arrive at some conclusions regarding the true location on the ground of the northerly limit of PIN 26793-0026(LT) being the limit between PINs 26793-0025(LT) and 26793-0026(LT).
What is the issue?
11Between 1929 and the present, several surveys were undertaken by a handful of Surveyors to determine the various lot lines and deed limits in and around the vicinity of the boundary that is the subject of this application. The applicant, Mr. Kerr, the owner of No. 49 Coulcliff Boulevard hired Ivan B. Wallace, OLS to survey the northerly limit of his property and to prepare a Boundaries Act plan to confirm the said boundary. The objector, Mr. Vale the owner of No. 53 Coulcliff Boulevard has objected to the location of the boundary illustrated on the draft plan as it is in conflict with a previous survey prepared by Mr. Helmut Grander, OLS.
12Mr. Wallace and Mr. Grander have arrived at two different opinions with respect to the true location of the boundary on the ground.
Title Documents:
13Both parties are in agreement that there is no conflict between the registered title documents for PINs 26793-0025(LT) and 26793-0026(LT).
14Both parcels have title to a portion of Lot 19, Registered Plan 321. Lot 19 as illustrated on Registered Plan 321 is 40' wide.
15The instrument containing the property description for PIN 26793-0025(LT) is D494291 which description includes the "northerly 15' of Lot 19".
16The instrument containing the property description for PIN 26793-0026(LT) is DI 08475 which description includes the southerly 25' of Lot 19".
Extent of Boundary Under Application:
17It was agreed by both parties that the westerly terminus of the boundary between PINs 26793-0025(LT) and 26793-0026(LT) being the easterly limit of Coulcliff Boulevard, by Registered Plan 321 was not in dispute and that the easterly terminus of the boundary being the water's edge of Lake Scugog was not in dispute.
18I have divided the retracement of the boundary between PINs 26793-0025(LT) and 26793-0026(LT) into connected but distinct discussions. The retracement of the various limits along the front or easterly limit of Coulcliff Avenue has been well documented since 1929 and the location of the found monumentation was never in question until recent history. The location of the monument at the rear, easterly or lake side of the property has been questioned in several surveys and there has been previous concern as to its true location.
19There is no dispute that the limit currently under application is intended to be a straight line which is projected to the water's edge. There are no bends in this limit.
20The boundary currently under application is not an original line, boundary or corner that was established when the property known as Highland Beach was subdivided by Registered Plan 321. The limit under application is the division of Lot 19 commonly referred to as a deed line which is described as being the "northerly 15' of Lot 19" in the deed for No. 53 Coulcliff Boulevard and the "southerly 25' of Lot 19" in the deed for No. 49 Coulcliff Boulevard.
21Section 54 of the Surveys Act, R.S.O. 1990 Chapter 30 does not apply to the deed line but it does apply to the northwesterly corner of Lot 19 which figures prominently in the history of the surveys undertaken in this area. The position of this corner is never questioned by any of the subsequent surveys. It is an undisputed corner.
22The Surveys Act, R.S.O. 1990 Chapter 30
Section 54 True and unalterable line, boundary and corner
- Every line, boundary and corner established by survey and shown on a plan of subdivision is a true and unalterable line, boundary or corner, as the case may be, with respect to such plan and shall be deemed to be defined by the original posts or blazed trees in the first survey thereof, whether or not the actual measurements between the original posts are the same as shown on the plan of subdivision or expressed in any grant or other instrument R.S.O. 1990, c. S.30, s. 54.
23Over a dozen surveys have been completed in the vicinity of Lots 19 and 20, Registered Plan 321 since the plan was registered in 1929. Of these surveys there are only a few that are relevant to this hearing. In order to appreciate the difference of opinion between the two surveyors, a brief history of the surveying undertaken in the vicinity of the limit in dispute is essential.
Registered Plan 321, Exhibit 1, Tab 7A
24Registered Plan 321, dated March 28, 1929 was registered in the Durham Land Registry Office (No. 40) on June 17, 1929. The Plan is known as "Highland Beach" and is a subdivision of Part of Township Lot 19, Concession 7, Township of Reach.
25The Surveyor Certificate was signed by F. J. Donovan, Ontario Land Surveyor.
26Registered Plan 321 is a plan of subdivision and as previously discussed as per Section 54 of the Surveys Act, R.S.0 1990 Chapter 30 the lines, boundaries and corners established by this plan are true and unalterable.
27Ivan Wallace, OLS testified that, the property was surveyed and the plan drawn in accordance with the accepted surveying standards of the day.
28Mr. Wallace further testified that although there is no legend defining the abbreviation shown as "1B", this notation was and still is the accepted acronym for "Iron Bar". Mr. Wallace further commented that Mr. Donevan has set a handful of IB's throughout the survey.
29Upon further observation I noted that Mr. Donevan has strategically set the IB's and the placement was not random. IB's were set at the bends in the surveyed lines, at the intersection of the plan with the Road Allowance between Concessions 6 & 7 and sufficient bars were set to govern the direction of Coulcliff Boulevard and the westerly limit of the plan.
30Mr. Wallace testified that all of the other points shown as an "X" on the accompanying field notes and as solid dots on the final plan were most likely wooden stakes as that was the common practice at the time. These dots were not labeled on the plan. Except as noted as "IB", all of the lots were monumented with wooden stakes either at the front and rear of the lots or as witness points set back from the water's edge.
Registered Plan 321 Original Field Note, Exhibit 1, Tab 7C
31Upon my review I noted that F.J. Donevan commenced the field work for Plan 321 on May 25, 1923 and over the course of several days completed the work on June 17, 1923. The plan was registered June 17, 1929. The field notes show a total of 21 lots but the plan was drafted with only 20 lots. The Lot shown as "Coulcliff Park" had originally been laid out with a frontage on Coulcliff Boulevard of 40' but the final plan sets Coulcliff Park at 90' which eliminates one of the lots in the tier.
32The change in the numbering of the lots did not appear to alter the location of the monuments as originally set. The configuration and widths of the lots remained constant with the exception of Coulcliff Park.
Registered Plan 321, Field Notes Dated August 1952, Exhibit 1, Tab 7D
33In 1952 George Richards, Ontario Land Surveyor completed four surveys for four different owners on Registered Plan 321. His notes are dated August 22 to August 25, 1952.
August 22, 1952: Lot 10 & Part Lot 9
August 23, 1952: N20' Lot 14 & S30' Lot 15
August 25, 1952: Lot 12 & Lot 13
August 25, 1952: Lot 32 & S15' Lot 33
The notes for all four surveys are drawn together.
34Mr. Wallace explained the work that was completed in the field and speculated that the abbreviated notation shown on the notes as "OS" referred to old stake meaning a found wooden stake that had previously been set several years ago.
35I have also seen the abbreviation of "OS" referred to as original stake.
36Mr. Wallace highlighted that Mr. Richards found an IB (shown on his field notes as Bent 3" N & 3" W +/-) at the southwesterly angle of Lot 10. Mr. Richards' also found an OS at the northwesterly angle of Lot 19 and he replaced it with an Iron Pipe (IP).
37Noted beside the 'Now IP notation on the field notes is:
"This checked good from IB at S. W. angle Lot 10"
38Mr. Wallace stated that in his opinion Mr. Richards had made sufficient checks to ensure that he was correctly retracing the work of F.J. Donevan and that the 'checked good' notation was Richards' written confirmation that he was in fact in agreement with Registered Plan 321.
39I find this note to be relevant as it established that Mr. Richards "IP" was set in the same location as the original "OS" at the northwesterly angle of Lot 19. Mr. Richards has verified the evidence by making sufficient checks which he has noted. Mr. Richards "IP" perpetuates the original Lot corner established by Registered Plan 321.
Instrument C067810, Exhibit 1, Tab 20G
40Instrument C067810 was registered on August 28, 1958 and is the first transfer of lands in Lot 19, Registered Plan 321.
41The legal description contained in Instrument C067810 states in part that the land grant was:
being composed of the northerly 20' of Lot 18 and the southerly 25' of Lot 19"
Plan of Survey by F.J. Donevan, 1959, Exhibit 1, Tab 8
42On August 22, 1959, F. J. Donevan, Ontario Land Surveyor surveyed Part of Lot 19 and Lots 17 and 18 and the 10' Laney Registered Plan 321. The resulting Plan of Survey was dated August 24, 1959.
43Mr. Wallace testified that this was the first running of the boundary under application and he further elaborated that both the field notes and Plan of Survey indicate that F. J. Donevan found and held the old iron pipe noted as "O.I.P." on the field notes and "IP" on the plan at the northwesterly angle of Lot 19 and set the new limit 15' south of this bar. Mr. Wallace contends that the iron pipe found at the northwesterly angle of Lot 19 is the same iron pipe set by George Richards in 1952.
44Mr. Wallace further noted that Donevan's field notes and plan both illustrate the boundary currently under dispute was monumented by F.J. Donevan with a wooden stake at its intersection with Coulcliff Boulevard and that he set an iron pipe on this same limit closer to the water's edge.
Plan of Survey by D.H. Black, 1970, Exhibit 1, Tab 9
45In 1970 D.H. Black, Ontario Land Surveyor, surveyed Lot 20 and the northerly 15' of Lot 19, Registered Plan 321, He produced one page of field notes dated May 1, 1970 and his Plan of Survey is dated May 2, 1970. The client as noted on his field notes and plan was Mrs. L. W. Hele.
46Mr. Wallace testified that D. H. Black's field notes and Plan of Survey indicate that he found and accepted the iron pipe located at the northwesterly angle of Lot 19 to be in its original position. Mr. Wallace contends that this is the same iron pipe that was set by George Richards in 1952 and as previously found and held by D.F. Donevan in 1959. Mr. Wallace referred to the northwesterly corner of Lot 19 as being a foundational monument.
47Mr. Wallace also notes that Mr. Black found and held a wooden stake at the intersection of the boundary under dispute and Coulcliff Boulevard and that Mr. Black replaced the wooden stake with an iron bar. Mr. Wallace testified that in his opinion this was the same wooden stake set by Mr. Donevan in 1959 when the limit under application was first run.
48Mr. Wallace stated that Black's survey was a retracement of Donevan's line as established in 1959.
49Mr. Wallace further elaborated on the various monuments found and the measurements made by Mr. Black to verify his position on the ground. In Mr. Wallace's opinion the difference between the measured distances shown on the notes and the distances shown on Registered Plan 321 were very close and that the differences measured were well within acceptable surveying tolerances.
50Mr. Wallace also noted that Mr. Black located the existing 2 storey frame cottage and that the notes and plan indicate it had a concrete foundation. The field notes and Plan of Survey show the westerly corner of the structure as being 27.55' north of the boundary under application.
51Mr. Wallace placed great emphases on these building ties and was emphatic in his contention that buildings do not move.
52In my review Mr. Black also located the IP that was set near the water's edge in 1959 by F.J. Donevan. In his opinion the IP was "disturbed" and was 1.1' north and 0.6' east of where he expected to find it. Mr. Black determined that the IP was disturbed by turning the plan angle of 90 degrees from the IP found at the northwesterly corner of Lot 19 and setting the new limit parallel and 15' south of the lot line between Lots 19 and 20. Black then set the F.J. Donevan's plan distance of 85.73' easterly from the replaced IB at Coulcliff Boulevard on the southerly limit of the survey. Mr. Black set an IB at this point and he does not appear to have removed the disturbed IP.
Plan of Survey by H. F. Grander (Helmut), 1983, Exhibit 1, Tab 10
53In 1983 Mr. Helmut Grander, Ontario Land Surveyor, prepared a Plan of Survey of Lot 10 and Part of Lot 9, Registered Plan 321. Mr. Wallace testified that Mr. Grander found an iron pipe at the northwesterly angle of Lot 19 which was shown on the field notes to be 1.5' below the surface of the ground and that Mr. Grander set a new iron bar at this location. Mr. Wallace further noted that Mr. Grander located several monuments on Coulcliff Boulevard and has shown on his Plan of Survey the resulting distances between these monuments to be in agreement with the distances as shown on Registered Plan 321.
54Mr. Wallace contends that the iron pipe replaced at the northwesterly angle of Lot 19 with an iron bar by Mr. Grander was the same iron pipe that was set in 1952 by George Richards and was subsequently found and held by D.F. Donevan in 1959.
Survey Monument Identification
55Existing survey regulations require that all set monumentation is required to be identified by the Land Surveyor's registration number or by an approved abbreviation of the surveyor or the firm that employs the surveyor.
56F.J. Donevan's registration number and monumentation number is 547.
57D.H. Black's registration number and monument identification number is 729.
58H.F. Grander's registration number and monumentation identification number is 1183.
59Iron pipes (IP's) predate the current regulations that require survey monuments to be stamped with identification and therefore the surveyors that set the IP's are not identified.
Plan of Survey by H.F. Grander (Helmut), 1989, Exhibit 1, Tab 11
60In 1989 Helmut Grander, Ontario Land Surveyor, surveyed Lot 20 and the northerly 15' of Lot 19, Registered Plan 321. The field notes were dated April 22, 1989 and the final plan, Building Location Survey on Lot 20 and Part of Lot 19, Registered Plan No. 321, was dated May 1, 1989.
61Mr. Wallace, in reviewing the plan and notes pointed out three discrepancies between this survey and previous surveys completed in the area.
i. The house tie as shown from boundary under dispute to the south westerly corner of the structure is shown as 29.95' whereas the D.H. Black's 1970 Plan of Survey measured 27.55' to the structure, a difference of 2.40'.
ii. The distance as shown on the plan along Coulcliff Boulevard between the SIB (1183) at the limit between Lots 9 and 10 and the IB (1183) shown at the intersection of the southerly limit of the plan, being the limit currently under application, is not in agreement with the measurement shown on Registered Plan 321. H.F. Grander shows a measured distance of 482.36' and the Registered Plan distance is 485'. The measured distance is 2.64' short of the plan distance. Both of these bars are identified as being set by H.F. Grander and are identified as being number 1183.
iii. The iron bar (IB) shown as found at the intersection of the southerly limit of this survey and Coulcliff Boulevard (the limit under application) is identified as being stamped number 1183 on the plan but the field notes do not show a number to identify the bar.
62Mr. Wallace contended that the discrepancies between this plan and the previous surveys indicated that the IB (1183) shown as found on the disputed limit was approximately 2.5' south of where it was expected to be located.
63Mr. Wallace further speculated that the IB shown on the disputed limit as being found was not identified in the field as being 1183 but was subsequently labelled as 1183 in error by the office staff when the plan was drafted. Mr. Wallace further noted that the 1B shown as being set by H.F. Grander at the north westerly angle of Lot 19 in 1983 is not shown on the 1989 plan or field notes.
64Although there was little discussion with respect to Grander having set an 1B at the easterly or lake side of the boundary I feel it is worth further examination.
65Grander's field notes indicate that he did not find any existing survey monuments at the easterly or lake side of the boundary. He set an iron bar using the plan angle of 90 degrees from the streetline and it appears to be in the vicinity of the end of the hedge.
66Black's IB at the easterly end of the limit was in existence at the time of this survey but it was not located by Grander. Grander set a new IB using the plan angle. It is doubtful that he looked for a monument as he did not have any record of one being set. He possibly did not see the existing Black bar as he was 2.5' south of Black's line and monument could have been obscured by the hedge.
67The plan also notes a "3' wide cedar hedge" and indicates that the centerline of the hedge is coincident with the southerly boundary. This is the first mention of the cedar hedge. There was much discussion regarding the planting, location and maintenance of the hedge which will be discussed further upon the review of the testimony of Mr. Kerr and Mr. Vale.
68I am not in agreement with Mr. Wallace's interpretation of the notation on the plan regarding the location of the hedge. In his report Mr. Wallace states that "Further Mr. Grander states that the centre of the existing hedge is the existing south limit of N’ly (northerly) 15 feet of Lot 19".
69Upon further examination of the 1989 Grander plan it is evident that the centerline of cedar hedge is depicted to be located on the property limit but Mr. Grander has held the found iron bar and set the plan angle to establish the limit. He has not located the boundary coincident with hedge but rather the hedge with the boundary.
Plan of Survey by H.F. Grander (Helmut), 1989, Exhibit 1, Tab 12
70In 1989 Helmut Grander surveyed Lot 12 and the southerly 10' of Lot 13, Registered Plan 321. The field notes are not dated but the Surveyor's Certificate on the Plan of Survey states that the field survey was completed on April 29, 1989. The plan titled, Building Location Survey of Lot 12 and on the S'ly (southerly) 10' of Lot 13, Registered Plan 321, was dated May 1, 1989.
71The field notes identify that the measured distance between the SIB (1183) found at the limit between Lots 9 and 10 and the IB (1183) shown on the limit under application as 482.36 calc (calculated) and 485.00 deed. The final plan does not show the total overall distance but rather three distances along Coulcliff Boulevard. Two to the distances are shown as being plan and the third distance is shown as 262.36' without a comparison to the calculated plan distance of 265'.
72The field work for both of the 1989 Grander surveys was completed at the same time and both Building Location Surveys are dated May 1, 1989 so as expected the retracement illustrated on both plans is in agreement.
Sketch Prepared by Ralph F. Grander, 2001, Exhibit 1, Tab 13
73In 2001 Ralph Grander, Ontario Land Surveyor, prepared a sketch of Coulcliff Boulevard and identified all of the found survey monuments along both sides of the street and identified the house numbers but not lot numbers. The Surveyor's Certificate shown on the plan states that:
"the fieldwork shown on this plan is correct and was obtained on May 23, 2001. "
74The Surveyor's Certificate confirms that this plan was based on fieldwork and was not compiled. House No. 49, being PIN 26793-0026(LT), the Kerr parcel, is shown to have a street frontage of 34.247 meters (converts to 112.36 feet). This distance is 2.64 feet short of the plan distance of 115 feet.
Survey by H.F. Grander 2003, Exhibit 1, Tab 14
75In 2003 the firm of H.F. Grander surveyed Lot 20 and the northerly 15' of Lot 19, Registered Plan 321. The purpose of the survey is not identified but the property limits were surveyed and the existing structure was located. The field notes are dated July 30, 2003. A plan of survey was not produced.
76The notes show that an iron bar (IB) was found at the intersection of the limit under application and Coulcliff Boulevard. The IB is not identified by the Surveyor's number. North of the iron bar on Coulcliff Boulevard the notes illustrate a found standard iron bar (SIB) which is also not identified.
77The existing structure is located relative to the southerly property limit which is the limit under application. A distance of 9.13 metres is from the shown from the southerly property limit to the south west corner of the existing structure.
78This converts to 29.95 feet which is in agreement with the H.F. Grander Plan of Survey completed in 1989.
Plan of Survey by H.F. Grander (Helmut), 2009, Exhibit 1, Tab 15
79In 2009 Helmut Grander prepared a Surveyor's Real Property Report (SRPR) of Lot 20 and Part of Lot 19, Registered Plan 321 being No. 53 Coulcliff Boulevard. The field notes were dated January 6} 2009 and the Plan of Survey was signed January 7, 2009.
80The plan was prepared for Mr. Buurman, the registered owner at the time of the survey. The plan was provided by Mr. Buurman when he sold his property to Mr. Vale on January 13, 2009.
81The plan illustrates the boundary of the parcel and a one storey brick and stone house. This is not the same house that was previously located on the Grander field notes dated July 30, 2003. The two storey frame structure with a concrete foundation had subsequently been demolished and replaced with the one storey brick and stone home.
82The plan identifies all of the found monumentation as being (1183), H.F. Grander with the measured distances shown to be in agreement with the 1989 Grander Plan of Survey of the same parcel.
83The plan shows the notation along the southerly limit of:
"row of cedars on line"
84Both monuments on the southerly limit were found and held so it cannot be argued that Mr. Grander considered the cedar hedge to be the boundary. The location of the cedar hedge is in approximate agreement with the location as noted on the 1989 H.F. Grander survey.
85In a letter dated November 11, 2009 at Tab 241, Mr. Ralph Grander states that:
"In conclusion / wish to make it clear that it is my opinion that the hedge was centered on the boundary."
Plan of Survey by Donevan Fleischman Petrich Ltd. (DFP), 2009, Exhibit 1, Tab 5
86In 2009 Michael Griffiths, Ontario Land Surveyor of the firm Donevan Fleischman Petrich Ltd. prepared a Surveyor's Real Property Report (SRPR) on Lots 17 and 18 and Part of Lot 19 and the 10 Foot Lane, Registered Plan 321 being No. 49 Coulcliff Boulevard for Mr. Kerr the registered owner. The plan is dated July 27, 2009.
87Part 1 of the Surveyors Real Property Report (SRPR) is the Plan of Survey and Part 2 of the SRPR is a Report Summary. There is a note on the face of the plan that states:
This plan must be read in conjunction with a survey report dated July 27, 2009.
88The limit which is the subject of this application is shown as the northerly limit of this survey. Mr. Griffiths has established the limit approximately 2 feet north of the limit previously surveyed by Mr. Grander in January of 2009. Mr. Griffiths has illustrated and labeled the location of the H.F. Grander line on his plan.
89The Griffiths' survey shows that he found an iron bar (IB) located at the intersection of the line established by Grander and Coulcliff Boulevard. The monument on the Griffiths' plan dated July 27, 2009 is identified as (NI). NI as defined in the Legend of the plan of survey denotes 'not identifiable'. This means that at the time of the field survey, the surveyor's registration number on the iron bar could not be determined.
90Mr. Griffiths did not use the IB (NI) monument to determine the north westerly corner of the parcel being surveyed and his plan notes that this monument in his opinion is "not in original position".
91Mr. Griffiths report, dated January 19, 2010, found at Tab 5B-2 of Exhibit 1 states that "it is somewhat curious that our survey crew on two separate occasions were dispatched to the site with the specific task of gleaning an identifying number from the monument but concluded each time that the number was unidentifiable."
92Mr. Griffiths found the IB set by D.H. Black at the easterly end of the northerly limit of the parcel. The IB is identified as being stamped number 729 and shows the top of the monument to be leaning 0.13m south. He has noted that he held the shaft at grade.
93Using the Black plan and notes Mr. Griffiths reestablished the location of the former footprint of the two storey frame house being No. 53 Coulcliff Boulevard that existed at that time of Black's survey in 1970. He then reestablished the northerly limit of Lot 19 using the most westerly house tie from the 1970 Black survey and deed distance of 4.572 metres (15 feet) from the found IB (729) at the easterly end of the limit under dispute.
94The front corner of the limit under application was then set the deed distance of 4.572 metres (15 feet) south of the North West corner of Lot 19 as established.
95Mr. Griffiths found IP's on the southerly limit of the 10' Lane which he has identified as being set by number 547 being F.J. Donevan. The measured distances between this limit and the limit under dispute agree well with the expected calculated plan distances. These monuments support the location of the limit as established by Mr. Griffiths.
96It is worth noting that Mr. Griffiths stated in his Report Summary that he had the F.J. Donevan records from 1959 and the D.H. Black record from 1970 when he surveyed the parcel in July 2009.
97In the second last paragraph of the Report Summary Mr. Griffiths states:
In the opinion of Donevan Fleischmann Petrich Ltd., the best evidence to reestablish said limit is provided by a survey prepared by D.H. Black O.L.S. dated May 2, 1970, being a retracement of a survey prepared by FM. Donevan, O.L.S. on August 24, 1959. Said surveys were adopted to re-establish the location of the original limit between Nos. 49 and 53 Coulcliff Boulevard.
98On January 19, 2010 Mr. Griffiths revised his plan to show the iron bar previously identified as (NI) to be number 729, the registration number of D.H. Black, and the displacement distance between his limit and iron bar shown as 1183 was amended from 0.99 metres to 0.59 metres.
99Mr. Griffiths amended his plan but did not change his opinion of the location of the limit currently under application.
100Mr. Griffiths was not present at the hearing and without hearing from him directly I must take his report and plan at face value. As stated in his report it was his intention to retrace the Donevan and Black surveys as in his opinion Black's survey was a direct retracement of Donevan's survey which was the first running of the line.
101Mr. Griffiths monuments are identified by the company where he was employed at the time rather than his registration number and these monuments are identified as DFP being the abbreviation for Donevan Fleishman Petrich Ltd.
Plan of Survey by H.F. Grander (Helmut), 2010, Deposited as Plan 40R-26491, Exhibit 1 Tab 16
102In 2010 Helmut Grander, Ontario Land Surveyor, prepared a Plan of Survey of Part of Lot 16, Registered Plan 321, deposited as Plan 40R-26491 on June 24, 2010.
103This survey is relevant in that an iron bar (IB) identified as number 729 is shown as found at the intersection of the limit under application and Coulcliff Boulevard. Number 729 is the registration number of D.H Black OLS. This is the first H.F. Grander survey that identifies this monument as 729. It was previously shown on the 1989 Grander surveys as being number 1183.
104Helmut Grander found D.H. Black's iron bar identified as number 729 in 2010. Ralph Grander testified that this was the same original monument that Black had set in 1970 and that the previous notation of 1183 was an error. Plan 40R-26491 shows a distance of 34.247 metres from an iron pipe (IP) identified on the plan as number 547 at the north westerly angle of Lot 16 to the iron bar (IB) 729 shown as found at the intersection of the limit under application and Coulcliff Boulevard. When converted from metric to imperial, this is a distance of 112.36 feet which is 2.64 feet short of the calculated plan distance between these found monuments of 115.00 feet.
105The iron pipe (IP) identified on Plan 40R-26491 as being 547 was not identified as being number 547 on the field notes. This was to be expected as iron pipes were not typically stamped with identification numbers. Mr. Grander in labeling the IP as number 547 is stating that in his opinion this iron pipe was set by F.J. Donevan.
106Number 547 is the registration number for F.J. Donevan OLS.
107In 1959 F.J. Donevan shows that he set the IP at the north westerly angle of Lot 16, the plan distance of 130 feet southerly from the iron pipe (IP) found at the north westerly angle of Lot 19.
108In 1970 D.H. Black's Plan of Survey shows that he found Donevan's IP at the north westerly angle of Lot 16 and Donevan's wooden stake (WS) at the intersection of the boundary under dispute and Coulcliff Boulevard. Black's 1970 Plan of Survey illustrates that he measured 114.92 feet between these monuments which is very close to the expected plan distance of 115 feet.
109Helmut Grander notes that the Donevan IP is located 0.07 metres west of the easterly limit of Coulcliff Boulevard but he does not make note on either his Plan of Survey or the field notes that either of these monuments is not in its original north/south position. Mr. Grander held the Donevan IP and set the northerly boundary of Part 1, Plan 40R-26491 the deed distance of 10 feet south of this monument.
110This plan is relevant as it identifies the IB at the disputed corner as being set by Black (729) and not by Grander (1183). This monument was not used to establish the width of Part 1 on plan 40R-26491 but was used to determine the easterly limit of Coulcliff Boulevard. The shortage of 2.64' between the two monuments does not impact Part 1 on the plan.
The Applicant's Surveyor: Ivan B. Wallace Draft Plan of Survey Exhibit 1, Tab 2
111The applicant relies on a draft Plan of Survey by Ivan B. Wallace dated September 30, 2014 and his Survey Report dated June 16, 2015 and accompanying documentation (Exhibit 1, Tabs 1-26), and Mr. Wallace's testimony at the hearing.
112Mr. Wallace has established the limit under application in agreement with the limit as established by Mr. Griffiths OLS and shown on Mr. Griffiths revised Surveyors Real Property Report dated January 19, 2010.
113The only notable difference in the evidence shown on the plan is the absence of Black's IB (729) on the easterly end of the limit as shown on Griffiths plan as this monument was no longer in existence at the time of the Wallace survey. Ivan Wallace has held the short standard iron bar (SSIB) set by Griffiths as a witness 1.00 metres east of the original IB (729). It is the same line, just a different monument.
114Mr. Wallace has clearly shown and labelled the location of the limit as established by H.F. Grander and the location of the hedge. Both Mr. Griffiths and Mr. Wallace have shown that they have established the limit between Lots 19 and 20 by retracing Black's survey of 1970.
115Mr. Wallace argued that buildings do not move and consequently, even in the absence of the original structure these tie distances were the best available evidence of the true location of the limit between Lots 19 and 20.
116The limit under application was then set in accordance with the deed distance of 4.572 metres (15 feet) south from the north westerly corner of Lot 19 and the direction of the limit was determined by setting the deed distance of 4.572 metres (15 feet) northerly from the SSIB set by Griffiths as a witness monument at the easterly end of the limit. The resulting limit is 4.572 metres (15 feet) south and parallel to the northerly limit of Lot 19.
117The draft plan shows the D.H. Black iron bar (729) at the front of the limit under application to be 0.774 metres (2.5 feet) south of the Griffiths SSIB (DFP).
118Mr. Wallace has identified the D.H. Black iron bar (729) and has noted that it "is not in original position". There are no notations that the bar is in anyway damaged or bent. The Griffiths plan and the Wallace plan both show the Black IB as being on the accepted easterly street limit for Coulcliff Boulevard. Grander, Wallace and Griffiths are all in agreement with respect the location of the easterly limit of Coulcliff Boulevard.
119Mr. Karrass, counsel for the objector questioned Mr. Wallace at length on the possibility of survey monuments moving 2 feet. Mr. Wallace reasoned that an iron bar is only 2 feet in length and for it to move that far it would have to be completely removed from its original position and would be lying on the ground.
Mr. Everett Kerr
120Mr. Everett Kerr is the applicant and the owner of PIN 26793-0026(LT), municipally known as No. 49 Coulcliff Boulevard. Mr. Kerr purchased his property on June 18, 1980.
121Mr. Kerr's neighbour to the north at the time of purchase was Mrs. Hele. She sold her property on September 28, 1982. Mr. Kerr and Mrs. Hele were neighbours for three summers.
122Mr. Kerr testified that he planted the cedar hedge in the early 1980's with the intent of providing privacy from his neighbour, Mrs. Hele, who rented her cottage. He had discussions with Mrs. Hele and they agreed to shift the hedge approximately 3 feet south of the property limit at the west end and 2 feet south at the east end of the property line. The hedge was planted south of the property limit at the request of Mrs. Hele to avoid any possible interference with her septic bed.
123Mr. Kerr stated that the hedge was intentionally planted south of the property for convenience and that he was aware at the time of the location of the limit between the two properties.
124Mr. Kerr stated that there was a stake present at the west end of the line and that he set a stake approximately 2 feet south of where he understood the property limit to be, on the east end of the limit near the lake. He removed a strip of dirt approximately 6 inches deep and 11/2 feet wide with a tractor running from approximately 3 feet south of the limit at the west end to approximately 2 feet south of the property limit at the easterly end.
125He stated that there were no bars visible within the strip of land that he had cleared for planting the cedars.
126Mr. Kerr further testified that he maintained both sides of the hedge and occasionally cut the top off at a height of approximately 12 feet.
127In April or May of 2009 Mr. Kerr removed part of the hedge at the east end at the request of Mr. Vale.
128Mr. Karrass, solicitor for the objector questioned Mr. Kerr with regards to his knowledge of gardening, specifically the growth of trees. Mr. Kerr stated that he was not an avid gardener but he was aware that roots grow. Mr. Karras put forth the premise that if roots grow then trees can move. Mr. Kerr stated that he was not aware that this was possible.
129Although the events recounted by Mr. Kerr occurred over 30 years ago I find no reason to doubt his testimony.
The Hedge — A Brief History
130There has been much discussion with respect to the hedge and the action of the owners. As previously discussed the hedge was planted by Mr. Kerr in the early 1980's. Mr. Kerr removed the easterly portion in the spring of 2009 at the request of Mr. Vale.
131Mr. Vale removed the remainder of the hedge and it was completely gone when Mr. Griffiths completed his survey in July 2009.
132The draft plan illustrating the boundary under application shows a cedar hedge in the vicinity of the limit. This hedge was planned in 2010 and is not relevant to this decision.
Mr. Harry Wilmot Vale
133Mr. Harry Wilmot Vale objected to this application. Mr. Vale is the owner of lands describe in PIN 26793-0025(LT), municipally known as No. 53 Coulcliff Boulevard. Mr. Vale purchased his property from Mr. Buurman on January 13, 2009.
134Mr. Vale relied upon the Surveyors Real Property Report prepared by H.F. Grander and supplied by the vendor, Mr. Buurman, at the time of purchase.
135Mr. Vale testified that he moved in to his new home in January 2009 and did not see Mr. Kerr until the weather improved sometime in the spring.
136Mr. Vale testified that he rented a bar finder (metal detector) and working with Mr. Kerr he located stakes at both ends of the hedge. In his opinion there was no dispute until the hedge was removed.
137Mr. Kerr has testified that in April or May of 2009 he removed the easterly portion of the hedge at the request of Mr. Vale.
138Mr. Vale removed the remaining portion of the hedge as in his opinion it was dead and he felt he was well within his rights to remove it.
The Objector's Surveyor: Ralph Grander
139Ralph Grander is the son of Helmut F. Grander and they are both employed at H.F. Grander Cox Ltd, in Port Perry. Ralph articled to his father and received his commission in 1994, Mr. Helmut Grander was not present at the hearing.
140Mr. Grander testified that there were no issues or conflicts up until the 1970 D.H. Black survey. The plans and notes were all in relative agreement up until this time
141Mr. Grander stated that his father was not aware of the Black survey when he completed his work in 1983 and 1989. Ralph did not have his license until 1994 and may or may not have been involved the 1989 survey. He was involved in the 2009 survey; however his father signed the plan.
142Mr. Grander explained that in 1983 his father found the iron pipe at the northwesterly corner of Lot 19 and replaced it with an iron bar. He then measured down the street to the northwesterly corner of Lot 10 and his measured distance was in agreement with the dimension shown on Registered Plan 321.
143In 1989 his father, Mr. Helmut Grander, found an IB in the centre of the hedge. He does not obtain a number on the bar and it mistakenly is labeled as No. 1183 on the plan that is produced from the survey.
144Mr. Gander contends that this was actually the IB set by D.H. Black in 1970 but that his father was not aware of the D.H. Black survey at the time.
145H.F. Grander Ltd. purchased the survey records of D.H. Black in the 1990's but Ralph was not aware that the monuments were Black's (729) and not Grander's (1183) until August 9, 2009.
146Mr. Grander could not explain the discrepancies between the dimensions shown on the Black survey of 1970 and his father's survey of 1989. He stated that Black was a good surveyor and that the hedge was not in existence at the time of his survey in 1970.
147Mr. Grander was of the opinion that the Griffiths and Wallace line was a hybrid limit being the combination of found evidence and theoretical calculations and that the found bar at the front of the property was physical evidence and it must be held. Mr. Grander sited the hierarchy of survey evidence as justification for holding the bar.
148Mr. Grander did not know if the Black iron bar had been moved or if it was originally set incorrectly. He noted that often the final plan of survey does not agree with the field notes. In his opinion this does not make the plan wrong.
149Mr. Grander did acknowledge that Mr. Griffiths' field crews attended the site multiple times and were unable to identify the number stamped on the iron bar. The H.F. Grander survey crews were also unable to obtain a number on the bar multiple times. Mr. Grander stated that when he visited the site on August 10, 2009 he easily found the bar and obtained Black's number 729. The hedge had been removed. Mr. Grander dismissed the notion that the bar being moved was a result of mischief.
150There was further discussion regarding the movement of bars. In Mr. Grander's opinion the iron bar set at the lake side of the limit could easily have moved due to the relatively flat topography of the land and damages resulting from the movement of ice on Lake Scugog.
Concluding Analysis
151Although there have been many surveys completed by a handful of surveyors in the vicinity of the boundary that is the subject of this application only a few are directly relevant to determining the true location of the boundary between PIN 26793-0025(LT) and 26793-0026(LT).
152In 1929 Registered Plan 321 was registered establishing the Lots and Coulcliff Boulevard. The frontage of each of the lots was clearly shown and the corners were monuments with wooded stakes and iron bars.
153In 1952 George Richards surveyed four properties on Registered Plan 321. Richard's surveys are relevant as he found the wooden stake at the north westerly corner of Lot 19 and replaced it with an iron pipe (IP). Richards took sufficient measurements and made a note on his field notes that he was in agreement with Registered Plan 321.
154Confirmation that the IP at the north westerly corner of Lot 19 was set in the same location as the original wooden stake is important as this corner is subsequently used by F.J Donevan in 1959 to establish the boundary under dispute.
155In 1959 F.J. Donevan establishes the limit currently under application. He set the new limit by holding Richards IP at the north westerly corner of Lot 19 and measuring south along the easterly limit of Coulcliff Boulevard and sets a wooden stake. The new limit is established 15' south of and parallel to the limit between Lots 19 and 20.
156It has been agreed by both parties that the F.J. Donevan OLS survey in 1959 was the first running of the line under application.
157In 1970 D.H. Black finds the wooden stake set by F.J. Donevan in 1959 and replaces it with an iron bar. D.H. Black also takes measurements to the existing two storey cottage. Black also found Donevan's iron pipe at the easterly limit of the boundary and calls it disturbed and sets an iron bar.
158Wallace has testified that Richards, Donevan and Black all made sufficient measurement to verify that they were in agreement with Registered Plan 321.
159In 1983 Helmut Grander found the IP previously set by F.J. Donevan at the north westerly corner of Lot 19. Grander's notes show that the bar was 1.5 feet below the surface and that he set a new iron bar on top of it.
160Grander has located several other monuments on Coulcliff Boulevard and has shown them to be in agreement with Registered Plan 321.
161From 1929 to 1983 the north westerly corner of Lot 19 has been monumented and its location has been verified by Richards, Donevan, Black and Grander. The location of the original lot corner has never been questioned.
162In 1989 Helmut Grander surveys the boundary under application. He found and held an iron bar at the intersection of the limit under application and Coulcliff Boulevard, the front bar. He has labeled this bar as 1183 and has shown a measurement from this bar to a short standard iron bar (SSIB) found between Lots 9 and 10 (identified as 1183) that he had set in 1983. The measurement taken is not in agreement with Registered Plan 321 by approximately 2.5 feet.
163Grander did not locate the iron bar that he had previously set at the north westerly corner of Lot 19 in 1983.
164The 1989 Grander survey is the first survey in which the north westerly corner of Lot 19 has not been located and verified and it is also the first survey that shows a difference between measured distances and the dimensions illustrated on Registered Plan 321.
165The applicant's surveyor, Ivan B. Wallace, has argued that it is not sufficient to accept a found monument without determining if it is still in the original position when set.
166Wallace also contended that a discrepancy of 2.5' should have been further investigated.
167It is uncertain if H.F. Grander would have changed his opinion in 1989 had he been aware that D.H. Black had set the iron bar in 1970. Having had his records he would have been aware that the house ties were not in agreement for approximately 2.5 feet. He was however aware that the found iron bar was not in agreement with the expected measured distance to the northwesterly limit of Lot 9 by approximately 2.5 feet and he did not make any additional measurement to verify his position.
168It is also most unfortunate that neither Grander nor Griffiths obtained the Surveyor's number from the D.H. Black IB set at the front and that this was further compounded by the fact that the bar was mislabeled on the Grander Plan of Survey as being 1183.
169Ralph Grander was of the opinion that it was irrelevant that the bar was mislabeled and that it is still the best evidence of the property corner.
170Mr. Griffiths had Black's records when he completed his survey in 2009 and he found the iron bar in the hedge. His crews were unable to obtain a number from it and his plan of survey and report state that in his opinion it was not in its original position.
171Mr. Griffiths report states that he was of the opinion that recreating the house ties from Black's notes was a valid retracement of Black's work. In support of the house ties he also located the original (rear) 1B set by Black near the water. The limit as established was in agreement with other survey monuments in the vicinity that were present at the time that Black ran the line. Mr. Griffiths was able to obtain the number on the (rear) IB set closer to the lake and it is noted as No. 729 on the field notes dated June 3, 2009.
172Mr. Grander informed Mr. Griffiths that he had identified Black's number on the IB at the front corner and Mr. Griffiths did not change his opinion based on this knowledge.
173Mr. Griffiths and Mr. Wallace are both of the opinion that the Black iron bar found on Coulcliff Boulevard in the hedge is not in its original position. Evidence has been provided to establish that Black set the IB in the correct position in 1970 and no evidence or argument has been put forth to suggest that it was originally set in the wrong position.
174The objector's surveyor, Mr. Grander, argued that the D.H. Black IB is a direct retracement of the original monument that marked the front corner and is therefore true and unalterable.
175The Black IB marking the front corner is not the original monument set when the limit in dispute was first run. Black found the wooden stake set by Mr. Donevan in 1959 and replaced it with an IB stamped 729.
176In his testimony Mr. Grander stated that Mr. Wallace's survey was a hybrid based upon theoretical measurement and therefore was not an acceptable method. Mr. Grander stated that Mr. Wallace should have held the IB which was physical evidence.
177Mr. Wallace did not accept the IB set by Black in 1970 to be in its original position. Mr. Wallace has accepted that Black's monument was in the correct location in 1970 and has used other evidence from the time of Black's survey and evidence currently in existence to determine where the monument had originally been set.
178Mr. Wallace has held the (DFP) SSIB set on the same line as the IB (729) found by Mr. Griffiths in 2009. Mr. Wallace's determination that Black's IB at the front corner was not in its original position was not just based on the reconstruction of the house ties to No. 53 Coulcliff Boulevard, but also on the confirmation that it was not in agreement with other found monumentation along Coulcliff Boulevard and along the lake side.
The Law
179Mr. Dowling, solicitor for the applicant submitted a Brief of Authorities as listed in Appendix B. Mr. Karrass, solicitor for the objector did not submit a brief of authorities but argued the same case law to support the objection.
180It is clear from the testimony and evidence submitted and the fact that both the applicant's and objector's solicitors are relying upon the same case law that the determination of the true location on the ground of the boundary between No.'s 49 and 53 Coulcliff Boulevard rests in the interpretation and application of the hierarchy or priority of evidence.
181All retracement surveys rely upon the hierarchy of evidence which is a long established evidentiary rule that dates back to Simon Greenleaf.
182Greenleaf on the Law of Evidence, 16th ed., W.D Lewis ed. (Philadelphia: R. Welsh & co., 1896), Vol. l,sec. 301 at 488,n.3:
On this principle, the things by which the land granted is described are thus ranked according to regard which is given them:
natural boundaries;
lines actually run and corners actually marked at the time of the grant;
the lines and courses of an adjoining tract, if these are called for and if they are sufficiently established, to which the lines will be extended;
the courses and distances, giving preference to the one or the other according to circumstances.
183In Theland v, Golden Haulage Ltd., Stortini Jr cited an article by Lorraine Petzold, former Executive Director of the Association of Ontario Land Surveyors, "The Survey and The Real Estate Transaction," presented to the Law Society of Upper Canada, 1983.
184In this article Petzold has distilled the evidentiary rule to rank evidence as follows:
natural boundaries;
original monuments;
fences or possession that can reasonably be related back to the time of the original survey;
measurements (as shown on the plan or as stated in the metes and bounds description).
185Mr. Karrass has argued that Black's IB is an original monument therefore it must be held as it is second only to natural boundaries in the hierarchy of evidence.
186Mr. Dowling has argued Black's IB is not in its original position therefore the next best available evidence was used to determine the boundary in its true location.
187If original monumentation is found and is undisturbed as to location, it must be accepted erroneous as may have been the original survey. Kingston v. Highland (1919) 1919 CanLII 854 (NB SC), 47 N.B.R. 324.
188Surveyors are required to locate and weigh all evidence as it relates to the retracement of a boundary. Next only to natural boundaries, original monuments govern, however the original monuments must be in their original position. When the position of a found monument is in question, it is the responsibility of the Surveyor to ascertain if the monument has been disturbed or moved and this assessment of evidence will always result in a hybrid survey. A hybrid is a combination of found monuments, measurements and any other physical evidence that can reasonably be related back to a time when the true location of the monument or boundary was known. I would conclude that most retracement surveys are in fact hybrids.
189Surveyor cannot pick the evidence they wish to use and disregard or ignore other evidence which may not support their location of the boundary. They must consider all evidence accordingly and the reconstruction of the house ties is just a one more piece of evidence to be considered.
190Wallace has demonstrated that the (front) IB (729) located on the westerly end of the limit is not in its original position and he has reconstructed its original position from all of the evidence available including other found monuments and the reconstructed house ties.
191Wallace has reconstructed the location the north westerly corner of Lot 19 and used it and Griffiths' (rear) SSIB set closer to the lake to establish the limit.
192Wallace accepted the location of Griffiths' SSIB on the easterly end of the limit as it was set as a witness bar for Black's IB (729), which was in existence at the time of Griffiths' survey.
193Ralph Grander's argument that Wallace's survey is a hybrid should not be accepted as it is illogical for reasons previously stated.
194Ralph Grander's contention that Black's bar must be held does not take into consideration that the bar is not in its original location. I am in agreement with Mr. Grander that in most instances the found bar takes precedence over measurements but Mr. Wallace has demonstrated that the monument is not in its original location.
195In making my decision I have carefully considered the testimony given, the evidence and exhibits, the arguments of counsel and the applicable law.
196Based on an analysis of the evidence and arguments presented together with applicable law presented by both the applicant and the objector, I have come to the conclusion that D.H. Black's iron bar located at the westerly terminus (front) of the limit under application is not in its original position. The Griffiths short standard iron bar located as a witness to the easterly terminus (rear) of the limit under application is in its original position and was set at a time when the D.H. Black iron bar was still in existence. The draft Plan of Survey prepared by the firm of Ivan B. Wallace Ltd., and signed by Ivan B. Wallace, Ontario Land Surveyor, dated September 30, 2014 represents the best evidence of the original running of the boundary under application.
197I HEREBY CONFIRM the boundary under application is as illustrated on the draft Plan of Survey prepared by the firm of Ivan B. Wallace Ltd., and signed by Ivan B. Wallace, Ontario Land Surveyor, dated September 30, 2014.
ORDER:
198I DO ORDER that the boundary as confirmed be monumented in accordance with section 9 of Ontario Regulation 525/91, and that all conflicting monuments be removed. 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 month after the appeal has been disposed of by the courts.
199I DO ORDER that a copy of this Order and Reasons be registered by the Land Registrar for the Durham Registry Office against PIN's 26793-0025(LT), 26793-0026(LT), 26793-0039(LT) and 26793-0178(R).
COSTS:
200The applicant or the objector did not make submission for costs and finding no reason to do so, I therefore make no order regarding costs.
Dated at the City of Peterborough this 18th day of April 2016.
Nancy J. Grozelle, OLS, Deputy Director of Titles
File B-1239
Appendix A - Exhibit List
Appendix B - Applicant's List of Authorities
Appendix C — Partial Copy of Draft Plan of Survey by Ivan B. Wallace
B-1239 Appendix A
Listing of Exhibits
Submitted by: APPLICANT
Survey Report and Supporting Documents Tabs 1 to 26 inclusive except Tab 5B-10 & 11 (EXHIBIT NO. 1)
Written testimony of Mr. Wallace (EXHIBIT NO. 2)
Affidavit of Mr. Everett Kerr dated January 18, 2010 (Tab 5B-10 & 11) (EXHIBIT NO.3)
Photograph of disputed line, Circa 2000 (EXHIBIT NO. 4)
B-1239 Appendix B
Applicants List of Authorities
Thelland. V. Golden Haulage Ltd (1989), OJ No. 2303
Richmond Hill Furriers Ltd. v. Clarissa Developments Inc. (1996), 1996 CanLII 11805 (ON CTGD), OJ No. 4363
Nicolson v. Halliday (2005), 2005 CanLII 259 (ON CA), OJ No. 57
Saly Estate (Re) v. Flabiano (2006) OJ No. 231 5
Bonnechere Excavating Inc. v. Universal Workers Union (2010) CarswellOnt 18123
Nightingale v. Brooks (2008) OJ No. 2603
Ellard v. Township of Tiny (2012) ONSC 280