THE BOUNDARIES ACT
Director of Titles – Ontario (Boundaries Act)
Registry: Lanark
Between: I & L Andrews Developments Inc. – Applicant
- and -
John D. Campbell and Karen J. Campbell – Objectors
Before: Hugh Goebelle, Deputy Director of Titles
1IN THE MATTER OF an Application made by George Anthony Smith, Ontario Land Surveyor (O.L.S.) (the “Applicant”), filed with the consent of “I. & L. Andrews Developments Inc.”, the registered owner of the lands designated as PIN 05140-0257 (LT) (the “Andrews Lands”), dated March 10, 2017, for the purpose of confirming, under the Boundaries Act, the true location on the ground of the boundary between the Northwest Quarter and the Southwest Quarter of Lot 23 in Concession 4, geographic Township of Beckwith, (municipal) Township of Beckwith, County of Lanark, and the boundary between part of the Northeast Half and part of the Southwest Half of Lot 23 in Concession 4, geographic Township of Beckwith, (municipal) Township of Beckwith, County of Lanark, as shown on a draft plan of survey by “G. A. Smith Surveying Ltd.” dated February 14, 2017.
AND
2IN THE MATTER OF an Objection to the said Application dated on April 5, 2017, by John D. Campbell and Karen J. Campbell (the “Objectors”) who are the registered owners of adjacent lands designated as PIN 05140-0035 (LT) (the “Campbell Lands”).
AND
3IN THE MATTER OF a letter from the Director of Titles, dated December 14, 2016, which refers this matter to the Examiner of Surveys for resolution under the Boundaries Act.
THE HEARING
4This Application came before me in the Council Chambers at the Beckwith Town Hall located at 1702 9th Line Beckwith, Carleton Place, Ontario, at 1:00 in the afternoon, on May 31, 2017. The following persons appeared before me at the Hearing:
-Ian Kyle Andrews of “I. & L. Andrews Developments Inc.”- Witness
-Rod Vanier and Doug Kelly- Solicitors for the Applicant
-Desneiges Teddy- Student-at-law with Soloway Wright LLP
-George Anthony (“Tony”) Smith- Applicant and the Ontario Land Surveyor who signed the draft plan of survey accompanying the Application
-John D. Campbell- Objector and Witness
-Karen J. Campbell- Objector
-Shirley Munro- Assistant to the Objectors and Witness
5During the Hearing, the Applicant filed two exhibits with the Tribunal and the Tribunal added a third exhibit, originally circulated by the Objectors prior to the Hearing, after the Hearing closed without objection from the Applicant. A list of these three exhibits is attached to these ‘Reasons’ as Appendix "A".
REASONS
BACKGROUND
6This matter began as an application filed for absolute title under the “Land Titles Act” on the “Andrews Lands” registered as instrument number (inst. no.) LC164198 on May 19, 2016, in the Land Registry Office for the Land Titles Division of Lanark. A draft plan of survey, signed by the Applicant on May 9, 2016, accompanied this application for absolute title.
7John D. Campbell and Karen J. Campbell filed and maintained an objection to this application for absolute title. The Director of Titles, in turn, referred this objection to the application for absolute title to the Examiner of Surveys for resolution because this objection included “a potential boundary dispute between the parties that may require adjudication through an application under the Boundaries Act.
8The Applicant next, and with the consent of “I. & L. Andrews Developments Inc.”, filed an Application under the “Boundaries Act” on March 10, 2017. This Application requested the confirmation of the true location on the ground of the boundary between the Northwest Quarter and the Southwest Quarter of Lot 23 in Concession 4 (or the east-west portion of the boundary). This Application also requested the confirmation of the true location on the ground of the boundary between part of the Northeast Half and part of the Southwest Half of Lot 23 in Concession 4 (the north-south portion of the boundary). A draft plan of survey, signed by the Applicant on February 14, 2017, accompanied this Application. The draft plan of survey illustrates both the east-west boundary (also known as the quarter lot line) and the north-south boundary (also known as part of the half lot line) which are subject to the Application for confirmation.
9The Campbells filed an Objection to this Application on April 5, 2017. Both within their Objection as well as during the Hearing, the Campbells indicated that they limited their Objection to the location on the ground of the east-west boundary subject to confirmation. Conversely, both within their Objection as well as during the Hearing, the Campbells indicated that they did not object to the location on the ground of the north-south boundary subject to confirmation. As a result, the greater portion of these ‘Reasons’ will concentrate upon the east-west boundary.
THE ISSUE INTRODUCED
10The Applicant contends that the remains of an old, existing, page wire, fence constitutes the best evidence of the east-west boundary. The Applicant also contends that J.E. Kihl, O.L.S., accepted this old fence as the best evidence of the east-west boundary during his preparation of a “Sketch” of survey in 1971 which included field work. The Applicant also contends that this same fence is the best evidence of the location on the ground of the east-west boundary which he accepted during his two, recent, surveys. The Applicant has illustrated this east-west boundary with a bold, solid, line on the draft plan of survey accompanying this Application.
11The Objectors contend that this old fence does not constitute the best evidence of the location of the east-west boundary. In their opinion, the mathematically calculated midline of Concession 4 constitutes the best method to determine the location of the east-west boundary. The Objectors state that the mathematically calculated midline of Concession 4 best represents the location of the east-west boundary according to the registered descriptions of the two parcels of land as found in the pertinent, registered, deeds.
12The discrepancy between these two positions for the east-west boundary amounts to approximately 16.39 metres at its western terminus. Please refer to the “Sketch Prepared by the Hearing Officer” attached to these ‘Reasons’ as Appendix "B" for a graphical representation of the site.
13Please note that for ease of reference throughout these ‘Reasons’, I have assumed that the Original Road Allowance Between Concessions 3 and 4, as shown at the bottom of the draft plan of survey prepared by the Applicant, runs in an east-west direction. I have referred all discussions related to direction to this assumption.
THE ORIGINAL TOWNSHIP PLAN
14Dated in January of 1817, Rueben Sherwood, Deputy Surveyor (D.S.), drew a plan to illustrate the Township of Beckwith. Sherwood, D.S., based this plan upon his field notes made during his previously completed field survey. Sherwood, D.S., undertook his field survey in the “single front” style as directed by the Surveyor General for Upper Canada in written instructions meaning that he occupied only one side of each concession (along a road allowance) called the front. During the course of his field survey, Sherwood, D.S., planted wooden stakes at the two, front, corners of every lot in every concession. Sherwood’s survey of the Township of Beckwith provided the framework for taking up land grants from the Crown in addition to many future subdivisions by subsequent land owners.
15With respect to Lot 23 in Concession 4, Sherwood’s plan illustrates an undivided lot of 200 acres with dimensions of 30 chains by 66.70 chains in accordance with his instructions from the Surveyor General for Upper Canada. Sherwood, D.S., also did not run nor did he establish either the half lot line or the quarter lot line, both within Lot 23 of Concession 4, which now separate the Andrews Lands from the Campbell Lands.
THE TITLE HISTORY
16The Crown patented the Southwest Half of Lot 23, containing “100 acres” as intended by Sherwood’s township survey, to John Ferguson in June of 1824. The Crown issued this patent seven years after Reuben Sherwood, D.S., surveyed the Township of Beckwith. Another seven years later, the Crown patented the Northeast Half of Lot 23, also containing “100 acres” as intended by Sherwood’s township survey, to Donald McLaren in May of 1831.
17During the late 1850s, James McRorie came to own both of these half lots in Lot 23 (by the 1858 Deed Memorial registered as inst. no. 160). In the years which followed, James McRorie registered two land transfers of particular importance to the quarter lot line and to the half lot line. In March of 1885, by inst. no. 1936, James McRorie sold the Northeast Half of Lot 23 and the Northwest Quarter of Lot 23, containing “150 acres” in total as intended by Sherwood’s township survey, to Daniel McRorie. By doing so, James McRorie created the parcel of land which eventually came into the ownership of the Campbells. 27 years later, in March of 1912, by inst. no. 3999, James McRorie’s estate sold the Southwest Quarter of Lot 23, containing “50 acres” as intended by Sherwood’s township survey, to John Ferguson. By doing so, the estate of James McRorie sold the remaining parcel of land which eventually came into the ownership of “I. & L. Andrews Developments Inc.”. These two land transfers created the quarter lot line which forms the greater focus of this Tribunal and re-created the half lot line which forms the lesser focus of this Tribunal.
18The Andrews Lands eventually came into Ian Kyle Andrews’ ownership in 2009 through a Court Order registered as inst. no. RS216148. In this order, the Ontario Superior Court of Justice vested the ownership of the Southwest Quarter of Lot 23 (with specified exceptions). This parcel of land could trace its title history (through inst. no.s RS43274 and RS22991 and 7314 and 6928 and 5882 and 5079) back to the original 1912 transfer from James McRorie’s estate to John Ferguson. More recently, Ian Kyle Andrews transferred the Southwest Quarter of Lot 23 (with specified exceptions) to “I. & L. Developments Inc.” by inst. no. LC163001 registered in 2016.
19The Campbell Lands came into family ownership in 1956 through a deed registered as inst. no. 6995. In this deed, John E. McDiarmid obtained ownership of the Northeast Half of Lot 23 (with a specified exception) and the Northwest Quarter of Lot 23 from Verbena Ferguson. Verbena Ferguson could trace her title to this parcel of land (through inst. no.s 5842 and 3520 and 3216) back to the original 1885 transfer to from James McRorie to Daniel McRorie. More recently, the Campbells obtained sole title to the Northeast Half of Lot 23 (with specified exceptions) and the Northwest Quarter of Lot 23 from their grandmother through inst. no. LC2359 registered in 2003 which also built upon the provisions within inst. no. RS195131 registered in 1998.
20During the development and the history of the title of these two individual parcels of land, the deeds described the Andrews Lands and the Campbell Lands only by aliquot portions of Lot 23. The various pertinent deeds do not include any metes and bounds descriptions and do not include any other information particular to any boundaries including references to any fencing. A notable exception to this rule is found in Schedule A of inst. no. RS43274, registered in 1971, with respect to part of the Southwest Quarter of Lot 23. The metes and bounds description when butting up against the quarter lot line refers to “the established division line between the North-West and the South-West Quarters of said Lot 23.” The authors of this deed appear to have adopted this terminology from the “Sketch” attached to this deed. J.E. Kihl, O.L.S., prepared the attached “Sketch” of survey which he signed and dated April 26, 1971.
SURVEYS SUBSEQUENT TO THE ORIGINAL TOWNSHIP PLAN
21As part of his research, Mr. Smith, O.L.S., searched for evidence of other surveys at and around the vicinity of the boundary between the Andrews and the Campbell parcels of land. Mr. Smith’s historical research only uncovered two such surveys. Although nearby to the east-west boundary in question, these two pages of field notes, dated in 1895 and in 1897 by E.T. Wilkie, Provincial Land Surveyor (P.L.S.), as professional surveyors had then become known, did not directly pertain to the east-west boundary in question. In addition, and apart from J.E. Kihl’s work, Mr. Smith’s research also uncovered a series of modern surveys. Although nearby to the east-west boundary in question, these five, modern, surveys also do not directly pertain to the east-west boundary in question.
22The sole survey discovered by Mr. Smith, O.L.S., which does directly pertain to the east-west boundary in question originated during the years between historical and modern times. J.E. Kihl, O.L.S., prepared and signed a “Sketch” of survey dated April 26, 1971. A copy of this “Sketch” is also attached to a deed registered in 1971 as inst. no. RS432274. Most importantly, J.E. Kihl, O.L.S., labelled the quarter lot line on the face of his “Sketch” as the “ESTABLISHED DIVISION LINE BETWEEN THE NORTH WEST ¼ AND THE SOUTH WEST ¼ OF LOT 23”. J.E. Kihl, O.L.S., also showed on his “Sketch” a one inch square iron bar at the western end and at the eastern end of this boundary. Unfortunately, nobody could locate J.E. Kihl’s field notes related to this “Sketch” in order to directly glean any additional information about J.E. Kihl’s 1971 survey.
2345 years after the completion of Mr. Kihl’s Sketch, Mr. Smith, O.L.S., prepared a Plan of Survey dated May 9, 2016. Mr. Smith, O.L.S., prepared this plan in support of the application for absolute title for the Andrews Lands. Mr. Smith, O.L.S., showed the quarter lot line as running in a straight line between two, found, survey monuments – each one labelled “SIB (1152)”. In translation, the label “SIB” means a standard iron bar (or a four foot long and one inch square iron bar) or survey monument. The label “1152” refers to J.E. Kihl, O.L.S. Other than a bearing and a distance, no other information appeared along the quarter lot line.
24Mr. Smith, O.L.S., prepared another Plan of Survey dated February 14, 2017, in support of this Application for the confirmation of the quarter lot line under the “Boundaries Act”. Mr. Smith’s second Plan illustrated the same information with respect to the quarter lot line as shown on his prior plan.
25Inserted along the quarter lot line, Mr. Smith, O.L.S., planted two additional, intermediate, survey monuments labelled “SSIB”. In translation, the label “SSIB” means a short standard iron bar (or a two foot long and one inch square iron bar) or survey monument. Attached to leader arrows, Mr. Smith, O.L.S., also added the following remarks along the quarter lot line (reading from west to east):
“Remains of Page Wire Fence”;
“Wire in Tree”;
“Wire on Ground (buried)”;
“Wire in Tree”;
“Wire on Ground (buried)”;
“Old Fence Post”;
“Wire on Ground (buried)”;
“Wire on Ground (buried)”;
“Wire on Ground (buried)”;
“Wire on Ground (buried)”; and
“Wire on Ground”.
26Mr. Smith, O.L.S., also added the following label to the face of this second plan of survey which addressed the entirety of the quarter lot line: “ESTABLISHED DIVISION LINE BETWEEN THE NORTHWEST ¼ AND THE SOUTHWEST ¼ OF LOT 23 (Remnants of Page Wire Fence)”.
27It is important to note that Mr. Smith, O.L.S., also testified that he surveyed the quarter lot line in the identical position on both of his draft plans of survey.
THE EVIDENTIARY QUESTION
28The crux of my analysis, therefore, becomes whether or not the old, page wire, fence, as shown on Mr. Smith’s 2017 draft plan of survey accompanying this Application, constitutes the best evidence on the ground of the location of the quarter lot line being the east-west boundary in question. If I answer this question is in the affirmative, then the work of this Tribunal has reached its conclusion with respect to the east-west boundary in question. If I answer this question in the negative, then the work of this Tribunal must continue and evaluate further evidence including, but not necessarily limited to, measurements (including areas) as referenced in deeds and plans.
TESTIMONIAL EVIDENCE ABOUT THE “OLD FENCE”
Applicant’s Evidence
29During his testimony, the Applicant (Mr. Smith, O.L.S.) told the Tribunal that, in order to help him uncover segments of this old fence beyond the 150 feet still standing erect at the western most section of the east-west boundary, Mr. Smith, O.L.S., employed a metal detector. Continuing his testimony, Mr. Smith, O.L.S., stated that he had personally examined the old fence line and that he had observed trees with segments of wire embedded in them and that he had taken measurements to any such discoveries. By using his metal detector, Mr. Smith, O.L.S., also testified that he had discovered segments of wire all along what he took as the quarter lot line. Mr. Smith, O.L.S., further testified that these discoveries confirmed to him that there had once been a page wire fence standing along the entirety of the quarter lot line.
30Under cross-examination by Mr. Campbell, Mr. Smith, O.L.S., indicated that the old fence was currently difficult to find without the assistance of a metal detector.
31While on site, Mr. Smith, O.L.S., also stated that he had marked the segments of fence which he had discovered with fluorescent ribbon in order to improve its general visibility. Even though Mr. Smith, O.L.S., uncovered this old fence, Mr. Smith, O.L.S., refused to estimate a date when the “old” fence had been erected or when the “old” fence had last been capable of containing cattle. Mr. Smith, O.L.S., added that the “old” fence just stopped as one proceeded eastward and that he found no further trace of it to the east of the half lot line.
32Mr. Smith, O.L.S, also attested that the two standard iron bars which he discovered are located in the remains of the old fence and that these two standard iron bars are the same two standard iron bars planted by Mr. Kihl, O.L.S., in 1971. Certainly, the similarity in measurements taken by Mr. Smith, O.L.S., as compared to the measurements published by Mr. Kihl, O.L.S., in 1971, confirmed this assertion for him.
33With respect to his conclusions drawn from the existence and from the location of the old fence, Mr. Smith, O.L.S., stated that, in his professional opinion, the old fence constituted the best evidence on the ground of the boundary between the Andrews and the Campbell Lands even though the old fence lay approximately 53 feet to the north of the calculated midline of the concession. Mr. Smith, O.L.S., also stated that he retraced the position of an already existing boundary just as, in his professional opinion, Mr. Kihl, O.L.S., had done before him in 1971. Building upon this assertion, Mr. Smith, O.L.S., also stated his professional opinion that Mr. Kihl’s use of the word “ESTABLISHED” to describe this line on the 1971 “Sketch” indicated that Mr. Kihl, O.L.S., had discovered some sort of evidence along this line while performing the field work and that this evidence was the old fence.
34With respect to the old fence itself, Mr. Smith, O.L.S., opined that local residents had generally hired surveyors in the past to mark out the position on the ground of boundary lines in order to aid the construction of boundary fences. Mr. Smith, O.L.S., supported this supposition through his review of surviving, historical, surveying, records in the area from the late 1800s and from the early 1900s. After making this generalisation, Mr. Smith, O.L.S., reiterated his professional opinion that the old fence provided the best evidence of the location on the ground of the quarter lot line.
35In his written report, Mr. Smith, O.L.S., reiterated that he had personally:
walked this line and found remnants of a wire fence, consistent with the division line that Mr. Kihl identified. Based on this information I am confident in the boundaries Mr. Kihl retraced and the methods he used to do so.
36Mr. Smith, O.L.S., went further and stated in his report that
It is my opinion, based on the location of the old wire fence (remnants of) described above, that the best evidence of the original running of the boundary line is the fence. Mr. Kihl, O.L.S., simply retraced this boundary using the best evidence in preparing his plan in 1971. We have adopted that same position….
37During his testimony, Mr. Smith, O.L.S., elaborated upon this point and stated that Mr. Kihl, O.L.S., had used the remains of the old fence, approximately 45 previously, to establish his two iron monuments albeit we cannot know today just how much fence remains Mr. Kihl, O.L.S., had found. Mr. Smith did conclude though that Mr. Kihl, O.L.S., had found the old fence and had used it and that, today, the old fence still fits the line between the two iron monuments set by Mr. Kihl, O.L.S.
38During his testimony, Mr. Smith, O.L.S., stated that the old fence was built, in his professional opinion, to show the boundary between the Andrews and the Campbell Lands. Mr. Smith, O.L.S., also stated, under cross-examination, that even though the old fence could no longer stop cattle in its current condition, the old fence could still mark the boundary between the Andrews and the Campbell Lands.
Ian Kyle Andrews’ Evidence
39With respect to the old fence, Mr. Andrews estimated that it has been standing for between 80 and 100 years. In addition, Mr. Andrews opined that the barbed wire was installed first with the page wire installed second. Furthermore, Mr. Andrews noted that an old fence, constructed of similar materials, also ran along the limit between Lots 22 and 23 but that he had made no effort to maintain it.
40With respect to the actions of the Campbells in the vicinity of the old fence, Mr. Andrews stated that the Objectors did not venture to the south of the old fence. Mr. Andrews also expressed that the Campbells had constructed an electric fence approximately parallel to the old fence line and approximately 15 feet to the north of the old fence. The purpose of this electric fence relates to the containment of the Campbells’ cattle.
John D. Campbell’s Evidence
41Mr. Campbell, an Objector to this Application, explained that four or five generations of his family have lived on the parcel of land adjacent to this Application. Mr. Campbell stated that no one from his family had ever relied upon the old fence to mark the boundary between the Andrews and the Campbell Lands. Mr. Campbell also indicated that he had not been aware that the old fence even existed until he received “a letter in the mail”. Mr. Campbell further pointed out that his family had also erected an electric cattle fence (mentioned previously) at a convenient location only. Mr. Campbell also pointed out that both he, as well as members of his family, had cut wood to the south of the “so called” boundary, or the old fence, in the 1990s. Finally, Mr. Campbell stated that he would not even describe the old fence as a “fence” given its decrepit condition.
42Under cross-examination by Mr. Vanier, Mr. Campbell confirmed that he had not seen the old fence until Mr. Smith, O.L.S, drew attention to it by fastening fluorescent ribbon onto it during his recent survey work. Following the completion of Mr. Smith’s survey work, Mr. Campbell walked along this old fence. Mr. Campbell contested Mr. Vanier’s assertion though that an old fence post uncovered by Mr. Smith, O.L.S., and shown on his draft plan of survey, was indeed an old fence post. Mr. Campbell did clarify though that he had viewed the western iron bar established by Mr. Kihl in 1971 but only after Mr. Smith, O.L.S., had marked it with the same kind of fluorescent ribbon which Mr. Smith, O.L.S., had used to mark the old fence. Finally, Mr. Campbell noted that no member of his family had ever objected to Mr. Kihl’s survey in 1971 because they were all unaware of it.
43To summarize, Mr. Campbell asserted that the old, broken-down, fence did not mark the boundary. According to Mr. Campbell, the dilapidated condition of the old fence took away from its potential value as a boundary fence. According to Mr. Campbell’s review of dictionary definitions, a boundary must be visible and the old fence is not visible.
Shirley Munro’s Evidence
44In support of Mr. Campbell’s testimony, Mr. Campbell’s sister also testified at the Hearing. Ms. Munro stated that her grandfather, John E. McDiarmid, had originally purchased the parcel of land in 1956. Ms. Munro also indicated that the legal descriptions registered in the local Land Registry Office had “never ever changed” and referred to either the half lots or to the quarter lots. Ms. Munro also questioned both the existence of the old fence as well as its potential use as a boundary fence. To support these assertions, Ms. Munro referred to the signed statements of two people associated with the Campbells’ parcel of land since the 1960s - E. Marjorie Campbell and Harold Horner. While the former stated that she had never seen an established boundary in the vicinity of the quarter lot line, the latter stated that he had never seen a fence in the vicinity of the quarter lot line. Ms. Munro also confirmed that members of her family had harvested trees which lay to the south of the old fence.
45Ms. Munro also made it clear that the no member of the Campbell family had signed any documentary agreements regarding the location of the quarter lot line at the time Mr. Kihl, O.L.S., prepared his 1971 Sketch. Ms. Munro also testified that no field meetings had ever taken place between Mr. Kihl, O.L.S., and any member of her family in 1971. Ms. Munro summarized by stating that members of the Campbell family had never accepted the old fence, or the position adopted by Mr. Kihl, O.L.S., for his Sketch, as the boundary between the quarter lots.
46Under cross-examination by Mr. Vanier, one of the Applicant’s solicitors, Ms. Munro indicated that she, herself, had not seen the fence shown on Mr. Kihl’s Sketch and on Mr. Smith’s Plan and that she, herself, had not seen the iron bars shown on Mr. Kihl’s Sketch and on Mr. Smith’s Plan. Ms. Munro also indicated that she, herself, had never searched for the old fence.
Conclusions About the “Old Fence” Based Upon the Testimony
47According to the combined testimony of the parties before this Tribunal, the remains of an old page (or box) wire fence exists in the vicinity of the quarter lot line (or the east-west boundary in question). The remains of barbed wire can also be found with this old page wire fence. According to the combined testimony of the parties before this Tribunal, the most western section of this old fence still stands erect for about 150 feet as the land in this vicinity is higher and dryer than much of the land to the east. The balance of this fence is dilapidated and falls to the ground as the remains of this old fence lies in wetter land which is also subject to “seasonal flooding”. There seemed little doubt though that this old fence, in its entirety, could no longer restrict the passage of livestock or interlopers as it could have done when it was originally installed.
48Perhaps, the dilapidated condition of this old fence explains why Ms. Munro and Mr. Campbell both testified that they had never seen this old fence before 2017. To support these assertions, Ms. Munro included signed letters from two people associated with the Campbell Land since the 1960s - E. Marjorie Campbell and Harold Horner. That being said, neither of these, latter, two people appeared before the Tribunal and their assertions about the want of an old fence in the vicinity of the quarter lot line could not be tested by cross-examination.
49That being said, no one submitted any evidence to accurately indicate when the old fence was installed or to accurately indicate who installed the old fence or to accurately indicate why the old fence was installed. Regardless of this want of evidence about the old fence’s origin, one may clearly conclude that no one ever removed it after its installation because Mr. Smith, O.L.S., discovered remains of the old fence in 2017 in the same position that Mr. Kihl, O.L.S., had previously discovered the old fence in 1971. Equally, nobody before this Tribunal testified that either someone had moved the old fence from some other location or that someone had constructed the old fence in its current position using aged materials.
50Given the Campbell family’s lack of recognition of the old fence and given its dilapidated condition, it is reasonable to conclude that no one from the Campbell family has maintained the old fence since 1956. Equally, Mr. Andrews stated that he has not maintained the old fence during his time associated with the Andrews Lands being the years following the mid-1990s.
51I therefore find it reasonable to conclude that the old fence has stood in its current position since at least its discovery by Mr. Kihl, O.L.S., in 1971. I also find it reasonable to conclude that the old fence has stood in its current position for much longer given its decrepit condition and given the discovery of old fence wire embedded in tree trunks and given the absence of testimony regarding any potential reconstruction or relocation.
52If Mr. Andrews’ estimate of the age of the old fence is sound, then somebody probably installed the old fence in the early 1900s. Again, if Mr. Andrews’ estimate of the age of the old fence is sound, then somebody probably installed the old fence subsequent to the severance of the Northwest Quarter of Lot 23 from the Southwest Half of Lot 23 which occurred through the registration of a deed in 1885.
A Mathematical Analysis of the “Old Fence”
53Examining this old fence as it stands today more closely, one can see from the draft plan that it runs in an east-west direction. In fact, it has a general bearing of N47°09’50”E. This bearing is rather similar to the bearing of the Original Road Allowance Between Concessions 4 and 5 being N47°28’50”E. This bearing is also similar, albeit somewhat less so, to the bearing of the Original Road Allowance Between Concessions 3 and 4 being N48°36’20”E.
54One can also see from the draft plan that this old fence has a length of 304.07 metres. The width of the Southwest Quarter of Lot 23 along the Original Road Allowance Between Concessions 3 and 4 is 312.02 metres according to Plans 27R-977 and 27R-9624. Mr. Sherwood, D.S., intended the width of the Southwest Quarter of Lot 23 to be 301.75 metres based upon his 1817 survey of the geographic Township of Beckwith. The variance between the length of the fence and the expected width of the quarter-lot (according to Sherwood’s measurements from 1817) is 2.32 metres.
55The western end of this old fence is approximately 839.50 metres distant from the Original Road Allowance Between Concessions 4 and 5. Also, the western end of this old fence is approximately 872.28 metres distant from the Original Road Allowance Between Concessions 3 and 4. The variance between the depth of the Northwest Quarter of Lot 23 and the depth of the Southwest Quarter of Lot 23 is 32.78 metres. The effect of this variance means that the western end of the old fence misses the calculated midline of Concession 4 by approximately 16.39 metres when determining this midline using modern measurements.
56The draft plan does not indicate the distance from the eastern end of this old fence to the Original Road Allowance Between Concessions 4 and 5. The draft plan does indicate that the distance from the eastern end of this old fence to the Original Road Allowance Between Concessions 3 and 4 is approximately 879.79 metres. The variance between the western depth of the Southwest Quarter of Lot 23 and the eastern depth of the Southwest Quarter of Lot 23 is therefore approximately 7.51 metres.
57If Mr. Sherwood’s original survey of the geographic Township of Beckwith in 1817 had been completely accurate at this location, one would expect the midline width of Concession 4 to be in the vicinity of 670.59 metres distant from each original road allowance. The mathematical midline width of Lot 23 in Concession 4, according to modern measurements, is approximately 855.89 metres distant from each original road allowance. In effect, the distance from an original road allowance to the calculated, mathematical, midline of Lot 23 in Concession 4 is 185.30 metres larger than expected. As a result of these comparisons, one may reasonably conclude that, whatever else this old fence might represent, this old fence does not constitute an attempt to demarcate a boundary along the midline of Lot 23 in Concession 4 by setting one-half of Mr. Sherwood’s stated depth of the concessions. A difference of 185.30 metres is simply too great to accept.
THE OTHER FENCE
58During the course of the Hearing, both Mr. Campbell and Ms. Munro testified that another fence formerly stood to the south of the old fence. In spite of his best efforts, Mr. Smith, O.L.S., testified that he could not find any trace of this other fence even with the benefit of searching with a metal detector. No one presented any corroborative evidence during the Tribunal regarding the location of this other fence meaning there is no clear evidence indicating its exact location or purpose. In addition, the statements about the location of this other fence are contradictory. Furthermore, the Campbells are not pursuing this other fence as the best available evidence of the location on the ground for the quarter lot line. I must therefore conclude that since I cannot rely upon the existence of another fence (formerly located somewhere to the south of the old fence), I cannot place any weight upon this other fence with respect to its possible implications regarding the location of the boundary before this Tribunal.
THE LAW
59With respect to evaluating the boundaries of parcels of land, judges have reviewed acceptable evidence and prioritised this evidence into a hierarchy. Over the past 175 years, judges have refined these priorities of evidence. When considering this matter, I find myself guided by the words of Appeal Justice Lang who, in 2005, and during the decision of Nicholson v. Halliday, 2005 CanLII 259 (ON. C.A.), before the Ontario Court of Appeal, wrote the following passage:
The mandate of a surveyor is to re-establish boundaries, and a surveyor must consider the best evidence available and re-establish the boundary on the ground in the location where it was first established, and not where it was necessarily described, either in the deed or on a plan. Survey law has developed a hierarchy of evidence from most compelling to least compelling as follows: (1) natural boundaries; (2) original monuments; (3) fences or possession that can be related reasonably back to the time of the original survey; (4) measurements (as shown on the plan or as stated in the metes and bounds description) (at Page 3).
60With respect to the first priority, being natural boundaries, no portion of the quarter lot line is referenced to a natural feature either within the deeds or within the surveys.
61With respect to the second priority, being original monuments, no portion of the quarter lot line is referenced to an original monument either within the deeds or within the surveys.
62This want of natural boundaries or original monuments related to the quarter lot line means that I must next examine the third priority being fences or possession which one can reasonably relate to the time of an original survey. Chief Justice Meredith, as supported by two of the three other Justices in the Ontario Court of Appeal case of Home Bank v. Might Directories Ltd. (1914), 1914 CanLII 602 (QC CS), 31 O.L.R. 340, included the following remarks regarding a dispute from Toronto:
a re-survey, made after the monuments of the original survey have disappeared, is for the purpose of determining where they were, and not where they ought to have been; and that a long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the monuments of the original survey have disappeared (at Pages 345-346).
63There is certainly no shortage of examples upon which one may draw from the case law with respect to the boundary before this Tribunal. The content of some of the case law though warrants particular scrutiny.
64The case of Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Dist. Ct.), for instance, involved a dispute between two parties over the location of the boundary between the North Half of the West Half of Lot 10 and the South Half of the West Half of Lot 10 – both in Concession 2 in the Township of Striker in the District of Algoma in the Province of Ontario. District Court Justice Stortini stated that one side
is asking this court for a declaration that an existing old fence now separating the two parcels in issue is not the boundary line. He contends that the boundary should be established as calculated by Colin Trivers, O.L.S., being the midline between the north and south limits of Lot 10 … (at Paragraph 4).
65Although the old “fence was erected in ‘a straight line’” (at Paragraph 25), the old fence’s variations from the mathematical midline of the concession “amounts to 28’ on the west limit and 137’ on the east limit” (at Paragraph 20). Finally, Concession 2 is four chains shallower than the 84 chains intended in the original township survey of 1881 (at Paragraph 5).
66This case enjoys several striking similarities to the circumstances before me. First, both address a boundary dispute between the owners of adjacent quarter lots. Second, both involve straight fence lines. Third, both involve a concession whose breadth varies from that which was intended in the original township survey. Fourth, both involve a boundary dispute where an old fence is pitted against a concession’s midline as calculated from modern measurements.
67In the end though, just as one of the surveyors from the case accepted “the old fence as the best evidence of the location of the missing original monuments” and therefore “the only remaining evidence of the original line” whether surveyed by a surveyor or not (at Paragraph 31), the court found that “the old fence in issue represents the boundary”. The court went on to state that the:
fence is at least 50 years old and has always been respected as the boundary…. The type of its construction and the straightness of its course (despite the variation of 5°) is sufficient to convince this court as well as two Ontario Land Surveyors that it is the best available evidence of the original running of the line. The fact that it is now revealed that it varies 28 feet on the west and 137 feet on the east from the measured midline is not sufficient to offset the history of acceptance of the old fence as the boundary (at Paragraph 38).
68With respect to the circumstances before this tribunal, the old fence, which runs in an east-west direction in the vicinity of the quarter lot line of the Southwest Half of Lot 23, compares well to the mathematical expectations for this boundary in many ways. First, the old fence is straight as shown on the draft plan of survey (unlike the “meandering” portion of the page wire fence in the Northeast Half of Lot 23). Second, the bearing of this old fence is approximately parallel to both the Road Allowance Between Concessions 3 and 4 as well as to the Road Allowance Between Concessions 4 and 5 which run along either side of this old fence. Third, the length of this old fence approximates the width of the Southwest Half of Lot 23 when compared to the intended width calculated from the original survey of the Township of Beckwith. Fourth, the distance between the western end of this old fence and the limit of the Road Allowance Between Concessions 3 and 4 is similar to the distance between the eastern end of this old fence and the limit of the Road Allowance Between Concessions 3 and 4. All of these elements support the reasonable inference that the old page wire fence followed an old surveyed line undertaken approximately 80 to 100 years ago.
69The old fence, in the circumstances before me, differs from the calculated midline of Concession 4 by approximately 16.39 metres based upon modern measurements. The amount of this discrepancy between the old fence and the modern measurements of Mr. Smith, O.L.S., is certainly less than the discrepancy noted and disregarded in the case of Thelland v. Golden Haulage Ltd. Furthermore, the judge in Thelland v. Golden Haulage Ltd. did not make his decision based upon the size of the discrepancy but upon what constituted the best evidence of the location on the ground of the original running of the boundary. In the case of Thelland v. Golden Haulage Ltd., the judge accepted the 50 year old fence as the boundary between the respective quarter lots.
70Applying the findings in Thelland v. Golden Haulage Ltd. to the circumstance before me, I find that it is reasonable to infer that the old fence was constructed when the monuments established during the original survey were in place and well known. In addition, I find that it is reasonable to infer that the old fence now represents the best available evidence of the location on the ground of the original running of the boundary between the quarter lots being the boundary of interest to this Tribunal. Furthermore, I find too that it is reasonable to disregard the discrepancy recently discovered through modern measurements between the old fence and the midline of the concession.
71Still addressing the case of Thelland v. Golden Haulage Ltd., the judge accepted the 50 year old fence which had been respected as the boundary by the previous land owners. With respect to the circumstances before me, although no one testified that the old fence was originally accepted as the boundary between the quarter lots, the old fence was never removed either which would have indicated that the old fence had originally been wrongly positioned. In addition, no one presented any evidence that the old fence was constructed for any purpose other than demarcating the location of the boundary in question. Summarising from the old Ontario case of Palmer v. Thornbeck (1876) U.C.C.P. 291 (see Page 294 and following), the judge from the case of Thelland v. Golden Haulage Ltd. stated that:
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 (at Paragraph 16).
72Given the want of evidence to question the old fence operating as a boundary fence, I must conclude that the old fence did indeed operate as a boundary fence.
73Another important case is that of Nightingale v. Brooks, 2008 CanLII 31811 (ON. S.C.D.C.). This case involved two parties who shared a rural boundary between half lots in Lot 22 of Concession 2 in the Geographic Township of Esquesing in the Region of Halton in the Province of Ontario. Upon appeal from a decision originally made under the “Boundaries Act” (see file no. B-1175), Justice Carnwath noted that the Deputy Director of Titles had accepted that the modern surveyors involved were “retracing a boundary that had been run earlier but was ‘lost in history’” (at Paragraph 14). In addition, Justice Carnwath noted that the Deputy Director of Titles had accepted that the centre-line of the old snake rail fence as “the best available evidence of the first running” of the boundary between the half lots (at Paragraph 18). Furthermore, Justice Carnwath noted that the Deputy Director of Titles believed that the first modern surveyor on the scene in 1970 “was in a better position to record its position” (at Paragraph 17).
74With respect to the circumstances before me, there are two important similarities to the case of Nightingale v. Brooks. To begin, in the Nightingale v. Brooks case, there was no surviving record of an original survey by which the snake rail fence was established along the boundary between the half lots. Likewise, there is no surviving record of an original survey by which the old page wire fence was established along the quarter lot line or the boundary of interest to this Tribunal. In the circumstances before me, an original survey of the quarter lot line seems ‘lost to history’; however, the old fence itself remains to offer evidence of such an original survey. In addition, sufficient portions of this old fence remain in existence to determine the location of the full length of the old fence and, therefore, the full location of the quarter lot line. Even if the old fence did not offer sufficient remains to determine the location of the quarter lot line throughout its full extent, J.E. Kihl, O.L.S., planted an iron monument in the ground at each end of this old fence during his 1971 survey which Mr. Smith, O.L.S., has discovered and illustrated on his draft plan of survey.
75In the Nightingale v. Brooks case, the judge noted that the Deputy Director of Titles believed that the first modern surveyor at the disputed location was in a better position to assess the evidence and to form an opinion about the position of the boundary. In that case, the first modern surveyor at the disputed location prepared a plan of survey in 1970 being 38 years before the dispute. In the circumstances before me, the first modern surveyor at this site, J.E. Kihl, O.L.S., accepted the location of the old fence, which he discovered in 1971, and used the position of the old fence to re-establish the position of the quarter lot line 45 years ago. In Mr.Kihl’s own words, the old fence marked an “ESTABLISHED DIVISION LINE”. It is also very important to note here that J.E. Kihl, O.L.S., performed sufficient survey field work to become aware of the old fence’s discrepancies with respect to the mathematical midline of the concession. Nevertheless, he accepted the old fence as the best available evidence on the ground of the location of the quarter lot line. Most recently, Mr. Smith, O.L.S., accepted the monuments established during J.E. Kihl’s 45-year-old survey thereby also accepting the position of the old fence as the best available evidence on the ground of the location of the boundary.
76In their final submission, the Land Owner’s solicitors directed my attention toward the case of Nicholson v. Halliday 2005 CanLII 259 (ON.C.A.). This appeal case restored the original decision made by a Deputy Director of Titles during a “Boundaries Act” Tribunal (see file no. B-1142) which a Divisional Court decision had overturned.
77In this case, adjacent land owners disputed the location of the boundary on the ground between their two parcels of land on Manitoulin Island in the Province of Ontario. The argument involved the location of the line between two township lots delineated but not demarcated during the original township survey. The argument pitted an old, snake-rail, fence constructed in the early 1900s against a newer surveyed line run in 1992 based upon a mathematical reconstruction of the lot line. If the old fence held as the boundary, then one lot would include 113 acres of land while the other lot would include 87 acres of land. The Crown patents, issued in 1915 and 1919, indicated that each lot would include 100 acres of land as intended by the original township survey of 1870.
78The position of the old, snake-rail, fence on Manitoulin Island when compared to the modern survey measurements of 1992 received an extensive review. The facts showed that the old, snake-rail, fence did not run the full length of the lot line between the adjacent parcels of land (see Paragraph 7). The facts also showed that the old, snake-rail, fence ran an irregular path along the lot line (see Paragraph 7). The facts further showed that the old, snake-rail, fence terminated approximately 830 feet to the west of the 1992 surveyed lot line (see Paragraph 12). In spite of these and other comparisons between the old fence and the modern surveyed line (see Paragraph 24 for a summary), the Deputy Director of Titles in the original “Boundaries Act” Tribunal, as upheld in the appeal court decision, selected the old fence as the boundary even though the old fence was not coincident with the modern surveyed line.
79Near the beginning of his decision, Justice Lang of the Court of Appeal recognized the previously discussed case of Thelland v. Golden Haulage Ltd. as a “leading authority on boundary resolution” (at Paragraph 28). Building upon that note, Justice Lang also reviewed the “hierarchy of evidence” for surveyors just as the judge in Thelland v. Golden Haulage Ltd. had done. As a result of his review, Justice Lang concluded that “in the absence of natural boundaries and original monuments, the surveyor would look for fences or possession before resorting to measurement” (at Paragraph 28). The Deputy Director of Titles, in his original decision, did precisely what Justice Lang had later outlined and recognized that the “fence is a monument of the original running of the line” (at Paragraph 19).
80It is interesting to note that the old fence on Manitoulin Island varied from the expected location of the lot line according to the modern mathematical measurements in a variety of ways. The largest variance was the 830 feet lying between the termination of the old fence and the modern surveyed line. Even with this variance known, the Deputy Director of Titles and Justice Lang both held that the old fence constituted the best available evidence of the location on the ground of the boundary. When compared to the circumstances before me, the old fence seems to have been constructed in a similar era to that of the old fence on Manitoulin Island. Although the old fence compares well to the original survey in many ways, the old fence does vary from the location for the quarter lot line, when compared to the modern mathematical expectation, but only by approximately 16.39 metres – considerably less than the 830 feet of variance at Manitoulin Island.
81With respect to the circumstances before me, neither the Land Owner nor the Objectors submitted any evidence regarding the origin of the old fence or the intentions of those who constructed it. Justice Lang, however, offered the following directive with respect to the origin of old fences:
In my view, there is no requirement that the parties identify and call direct or clear evidence as to the fence builder’s purpose. To hold otherwise would prove fatal to the long-accepted surveyors’ hierarchy. Clear or direct evidence is often not available. Passage of time makes it increasingly difficult and, in this case, impossible to provide direct evidence of intent. The builder of the fence is often no longer available to testify as to their intention at the time. In this case, where the fence was built sometime before 1937, and likely some 20 years earlier, it is not surprising that the original fence-builder was not called to give evidence (at Paragraph 58).
82Justice Lang carried on and offered the following direction forward:
The fence itself is the legacy that its builders have left and the fence itself, its location, and its known history are the only available evidence from which its original purpose can be inferred. In my view, the [Deputy] Director [of Titles] was entitled to draw inferences from the fence itself and the evidence he had about the fence (at Paragraph 59).
83As in the case on Manitoulin Island, therefore, I would infer that the old fence, in the circumstances before me, was constructed as a boundary fence and represents the first establishment of the quarter lot line.
84With respect to the circumstances before me, as in the circumstances on Manitoulin Island, it “[is] the boundary line, however, that [is] the issue, not the expectations as to the acreage of the current owners” (at Paragraph 75). On Manitoulin Island, the decision regarding the location of the boundary affected the resultant areas of the two lots affected (being 87 and 113 acres rather than being 100 acres each). The decision did not establish areas thereby relocating the established boundary accordingly. With respect to the circumstances before me, the Objectors “at the time of acquisition, [like] any owner who wished to ensure title to a specific number of acres could have required a survey to ensure he or she received what they bargained for” (at Paragraph 76). The Objectors, their parents, and their grandparents, did not arrange for any such survey.
85In a summation of one of the most important principles found in Nicholson v. Halliday, Justice Lang incorporated the following words into his decision:
the mandate of a surveyor is to re-establish boundaries. In the re-establishment of a lot line a surveyor must consider the best evidence available and re-establish the boundary on the ground in the location it was first established, and not where it was necessarily described, either in the deed or on a plan. The boundary is the re-establishment on the ground of the original running of the line and this re- establishment of the boundary constitutes the deed line (at Paragraph 29 quoting from Thelland v. Golden Haulage Ltd. at Page 2).
86Justice Lang re-iterated this sentiment when he stated that “the surveyor’s goal was to find and to confirm where the lot line had been run in the first place; not to correct by measurement a lot line that had already been set …” (at Paragraph 34).
87Re-iterating these guiding words of Justice Lang, it remains a current surveyor’s duty to discover the location on the ground of the original running of a boundary. In addition, it remains a current surveyor’s duty to re-establish an existing boundary on the ground according to the best available evidence. Often, an existing fence offers the best available evidence of the location on the ground of an existing boundary if natural features are inapplicable or if original monuments are not available. Furthermore, a modern surveyor should not correct or adjust an existing boundary using modern measurements combined with existing descriptions. With respect to the boundary in question before this Tribunal, the old fence constituted the highest priority of evidence available regarding the location on the ground of the existing boundary because the boundary in question is not referenced to a natural feature by the deeds and because no one discovered any original monuments.
88In his summarising remarks about the situation before him on Manitoulin Island, Justice Lang wrote that the “facts so found warranted the inference that the old fence was built when the original monuments were in existence and on the true boundary line” (at Paragraph 36). With respect to the circumstances before me, I can make a similar inference regarding the old fence being the best evidence of the location of the existing quarter lot line. More specifically, J.E. Kihl, O.L.S., prepared a “Sketch” of the Southwest Quarter of Lot 23 (and other lands) in 1971. J.E. Kihl, O.L.S., found the old fence and accepted the old fence as the best evidence available of the location on the ground of the boundary between the two quarter lots. J.E. Kihl, O.L.S., planted two new survey monuments at the ends of the old fence. J.E. Kihl, O.L.S., did not attempt to correct the location of the boundary by establishing a new midline of Concession 4 based upon his measurements. Mr. Smith, O.L.S., most recently found both the old fence and J.E. Kihl’s two monuments and accepted them as the best evidence available of the location on the ground of the boundary between the two quarter lots. By accepting the old fence, both surveyors mirrored the following summation offered by Justice Lang: “the surveyor’s goal was to find and confirm where a lot line had been run in the first place; not to correct by measurement a lot line that had already been set …” (see Paragraph 34).
89It is very important to note that when J.E. Kihl, O.L.S., viewed the old fence and accepted it as the best available evidence on the ground of the location of the boundary, he operated within his capacity as a licensed land surveyor and exercised his powers under Section 2 of the 1970 “Surveys Act” (R.S.O. 1970, c. 453). This section is carried forward as Section 2 of the current “Surveys Act” (R.S.O. 1990, c. S.30) with respect to Mr. Smith’s professional opinion as a licensed land surveyor in Ontario. This Section reads as follows:
No survey of land for the purpose of defining, locating or describing any line, boundary or corner of a parcel of land is valid unless made by a surveyor or under the personal supervision of a surveyor.
90Although the agreement of all parties affected by a boundary survey is indeed preferable, such agreement is not essential to the completion of a professional opinion by a licensed Ontario Land Surveyor.
91In their final submission, the Objectors directed my attention toward the case of Palmer v. Thornbeck (1876), U.C.C.P. 291. This case dealt with a disputed boundary between the North Half of Lot 31 and the North Half of Lot 32 – both in Concession B of the Geographic Township of Scarborough in the Province of Ontario. All three of the judges in this appeal case discussed the status of original surveys and the status of original monuments. The three judges in this appeal case also debated the standing of original, established, surveyed lines which deviated from subsequent statutory instructions.
92In this appeal case, the plaintiff argued that the old fence, erected approximately 20 years previously along an, original, surveyed line did not constitute the boundary. In addition, the plaintiff argued that the recently surveyed line, run circa 1861 by Mr. Passmore, P.L.S., constituted the boundary. Furthermore, the plaintiffs argued that the recently surveyed line constituted the boundary because it established the boundary by determining equal areas for each lot in accordance with the statutory imperatives of the day (see Pages 297 and 298 and 305). The defendant argued, conversely, that the old fence constituted the boundary because it followed the originally surveyed line and that original surveys must govern the location of boundaries (see Page 298 and 305).
93Each of the three appeal judges wrote their own decisions and came to a similar conclusion. All three judges decided that the plaintiff’s arguments did not succeed.
94Justice Gwynne tackled the question of original surveyed lines deviating from subsequent statutory instructions at great length. In the end, Justice Gwynne wrote that surveyors should only follow statutory instructions when surveyors cannot find any original evidence of a boundary (see Pages 300 and 301). Justice Gwynne summarized his analysis as follows:
But I cannot, I confess, see anything to justify the ignoring [of] the original monument, if its site can be established, as the point from which the line is to be run. The whole principle of the Act is to recognize the original monuments as still binding (at Page 302).
95Justice Gwynne later reiterated this conclusion and stated that to “stand by the monuments planted on the original survey is the first principle of the general law…” (at Page 303).
96Chief Justice Hagarty also tackled the question of original surveyed lines deviating from subsequent statutory instructions albeit at less length. Like Justice Gwynne, Chief Justice Hagarty concluded that “I cannot hold that the Legislature intended any original monuments to be ignored” (at Page 306). Unlike Justice Gwynne and Chief Justice Hagarty, the third judge, Justice Galt, seemed to dissent on this analysis (see p. 308).
97The circumstances before me are similar to the case of Palmer v. Thornbeck. Like Justice Gwynne who found that the evidence submitted established “beyond all reasonable doubt that a fence was erected as a line fence …” (at Page 295), I too must conclude that, as previously discussed, that the old fence is a boundary fence. Also, like Chief Justice Hagarty who stated that “I think the plaintiff here ought not to call on us to hold him entitled to an absolute mathematically exact division of these lots …” (at Page 306), I too must conclude that I cannot hold that the areas called for in the pertinent deeds supersede any original survey on the ground.
98I must further point out that the Objection before me did not introduce any evidence that any statute attempts to supersede any original survey on the ground. In the circumstance before me, one may reasonably find that the statutory law, found in the “Surveys Act”, affecting aliquot parts only dictates methodologies to establish the unestablished boundaries of aliquot parts and not to re-establish the already established boundaries of aliquot parts.
THE NORTH-SOUTH BOUNDARY IN QUESTION
99The north-south boundary in question is a portion of the limit between the Northeast Half of Lot 23 and the Southwest Half of Lot 23. This boundary between the Andrews and the Campbell Lands, also known as part of the half lot line, is depicted on the draft plan of survey accompanying this Application but is not subject to an Objection.
100At the northern terminus of this boundary (located at the intersection of the quarter lot line and the half lot line), Mr. Smith, O.L.S., has found a survey monument established by Mr. J.E. Kihl, O.L.S., for a “Sketch” of survey dated April 26, 1971. At the southern terminus of this boundary (located at the intersection of the Original Road Allowance as widened and the half lot line), Mr. Smith, O.L.S., has planted a survey monument based upon measurements taken from ‘Part 5’ of an underlying plan. Mr. Smith, O.L.S., states that this underlying plan is known as Plan 27R-977 completed along the Original Road Allowance Between Concessions 3 and 4, in support of its widening, by Mr. F.M. McGregor, O.L.S., for ‘Geo W Bracken Limited’, dated October 29, 1976.
101Mr. Smith, O.L.S., then establishes a line running directly between these two monuments. Mr. Smith, O.L.S., illustrates no boundary evidence, whether survey monuments or fences or anything else, along this line. Mr. Smith, O.L.S., also sets seven new monuments along this line to demarcate it upon the ground.
DECISION
102After reviewing all of the evidence presented to this Tribunal, I find it reasonable to infer that the old fence discussed was constructed in the years which followed the creation of the boundary between the aliquot parts known as the Northwest Quarter of Lot 23 and the Southwest Quarter of Lot 23 in 1885. In addition, there is no evidence that anyone challenged the location of this old fence as marking the singular boundary on the ground between these two aliquot parts from the construction of this old fence until the filing of this Application. Furthermore, the old fence conforms well to the location for it that one might expect from an old survey even if such an old survey is ‘lost in history’. Finally, two professional surveyors, one in 1971 and one in 2016/2017, and without any dissenting opinions from any other professional surveyors, have accepted this old fence, according to the hierarchy of evidence, as the best available evidence of the location on the ground of the original running of the boundary between the two aliquot parts known as the Northwest Quarter of Lot 23 and the Southwest Quarter of Lot 23.
103The courts do not require that the location of a boundary on the ground conforms to the theoretical position intended in the original documents. The courts require quite the reverse and sternly warn against the temptation to relocate on the ground any given boundary based upon newer and, presumably, more accurate measurements. The courts have plainly indicated that the duty of a surveyor is to re-establish any given boundary in the location that it was originally established even if such a boundary was not established accurately when compared modern measurements.
104To summarise, this Tribunal has concluded, based upon the whole of the evidence and based upon the testimony heard and based upon the balance of probabilities, that the old fence constitutes the best available evidence of the original running on the ground of the boundary between the aliquot parts known as the Northwest Quarter of Lot 23 and the Southwest Quarter of Lot 23. As a result, upon considering all of the evidence filed with this Tribunal and upon considering all of the testimony heard at the Hearing and upon considering the applicable law, I have concluded that the old fence, as monumented by J.E. Kihl, O.L.S., in 1971, constitutes the best available evidence of the location on the ground of the boundary between the two aliquot parts known as the Northwest Quarter of Lot 23 and the Southwest Quarter of Lot 23.
105With respect to a portion of the limit between the Northeast Half of Lot 23 and the Southwest Half of Lot 23, the boundary shown on the draft plan of survey supporting this Application joins evidence to evidence and there is no contradictory evidence noted and there are no objections filed with respect to the location on the ground of this boundary. As a result, I find no reasons to question its location.
106The Applicant, Tony Smith, O.L.S., illustrates both boundary segments in bold on his draft plan of survey prepared in support of this Application.
ORDER
107Upon considering all of the testimony heard at the Hearing and upon considering all of the evidence filed with the Tribunal (being the submissions of the Applicant, the submissions of the Applicant's solicitors, and the submissions of the Objector) and upon considering the applicable law, I find as follows:
108I DO HEREBY ORDER that the Application of "I. & L. Andrews Developments Inc." is allowed in full.
109AND I DO HEREBY ORDER that the boundaries as illustrated with bold, solid, lines on the Draft Plan of Survey, dated February 14, 2017, and signed by George Anthony Smith, O.L.S., of the survey firm G.A. Smith Surveying Ltd., and prepared in support of this Application, are confirmed.
110AND I DO HEREBY ORDER that the Objection of John D. Campbell and Karen J. Campbell is denied.
111I DO FURTHER ORDER that the confirmed boundaries be monumented in accordance with Section 9 of O.Reg. 525/91.
112AND I DO FURTHER ORDER the removal of any monuments conflicting with the confirmed boundary.
113AND I DO FURTHER ORDER that a final Plan of Survey of the confirmed boundaries be prepared by the Applicant, to the satisfaction of the Director of Titles, and be registered in the appropriate Land Registry Office as prescribed by Section 16 of the "Boundaries Act". The final Plan of Survey of the confirmed boundaries shall be submitted to the Office of the Director of Titles within three months of 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
114After reviewing the submissions of the Land Owner's solicitors and the Objectors with respect to costs, I make no order in that regard. I found that both parties co operated with the Tribunal process and that there was an identifiable discrepancy between the position on the ground of the old fence and the location of the mathematical midline of the concession as calculated from the modern, surveying, measurements.
DATED at my office in the Middlesex Land Registry Office, ServiceOntario
100 Dundas Street, Ground Floor, London, Ontario, N6A586.
This 11th day of January in 2018
Hugh Beaumont Goebelle, O.L.S.
Deputy Director of Titles
APPENDIX “A”
List of Exhibits
Surveyor’s Report (binder with supporting tabs) prepared by Tony Smith, O.L.S., of G.A. Smith Surveying Ltd.
“Book of Documents for the Applicant: I & L Developments Inc.” prepared by Rod A. Vanier of Vanier & Associates.
Documents with cover letter (named “Exhibit A” through to “Exhibit H” – both inclusive) circulated to all parties by John D. Campbell via an email dated May 19, 2017.