Court File and Parties

Court File No.: CV-15-074 Date: 2017-03-27 Ontario Superior Court of Justice

Between: KAREN JEAN WEAVER and WILLIAM BRYCE WEAVER, Applicants And: GORDON ROBERT ANDERSON, Respondent/Cross-Applicant

Counsel: D. Wyjad, for the Applicants A. Mae, for the Respondent/Cross-Applicant

Heard: August 16 and October 20, 2016 and January 12, 2017

Reasons for Decision on Application

wilcox, j.

Introduction

[ 1 ] The subject to this case is a small piece of land on the south shore of Shawanaga Lake, tentatively described as Part 1, Plan 42R-12887, in the Township of Hagerman in the District of Parry Sound, Ontario, referred to as “the Point”. [1]

[ 2 ] This case is an illustration of the old adage, “good fences make good neighbours”. The dispute over the location of the boundary between the neighbouring lands has led to various failed attempts to resolve the issue over the years, including by litigation between previous owners which was not seen through to a conclusion, and strained relations between the parties.

[ 3 ] The Applicants, Karen Jean Weaver and William Bryce Weaver are, since 2015, the registered owners of property described as Part of Lot 7, Concession 4, being Part 4 on Plan 42R-7295, in the Township of Hagerman in the District of Parry Sound, Ontario. The Cross-Applicant has owned Part of Lot 8, Concession 4 being Part 1, Plan PSR-1689, in that township since 2014. Immediately prior to that, it had been owned by his late father, Robert Shepherd Anderson, from 1970. The parties’ respective properties abut each other, with the Applicant’s property being to the west of the Cross-Applicant’s property. The Point is in the area of the boundary between the two properties.

[ 4 ] The Applicants make application for:

1. An Order declaring that the Applicants are the legal and beneficial owners of those lands designated Part 1 on Plan 42R-12887 and more particularly described in Schedule "A" hereto (hereinafter referred to as "Part 1") free of any right, title, claim, or interest of and in the Cross-Applicant;
2. An order vacating the registration of a Caution deposited as No. GB83227 in the Land Registry office for the Land Titles Division of Parry Sound from title of those lands set out in Schedule A hereto;
3. A mandatory order requiring the Cross-Applicant to remove from that part of the lands described in Schedule A a retaining wall constructed of railway ties and sand;
4. An interlocutory injunction restraining the Cross-Applicant, his family members and his guests and invitees from trespassing on the said Part 1 until the hearing of this application;
5. A permanent injunction restraining the Cross-Applicant, his family members and his guests and invitees from trespassing on the said Part 1.
6. Damages in the amount of $25,000.00 for loss of use and enjoyment of the said Part 1;
7. Reimbursement and indemnification by the Cross-Applicant for any losses, costs, or liability incurred by the Applicants as a result of the contravention by the Respondent of any policies or regulations of the Ministry of Natural Resources with respect to prohibition of shoreline development in so far as such contravention affects the said Part 1;
8. Costs in this action.

[ 5 ] The Cross-Applicant, Gordon Robert Anderson, seeks the following relief:

a) A declaration of ownership in respect of that portion of Part 4 Lot 7 Plan 42R-7295 to the west of the fence line shown in the field notes of the said James K. White O.L.S dated August 13, 1969 (sic) [2] , or as designated as Part 1 on Plan 42 R-12887 and as further particularized or as otherwise suggested and referenced in the report of E.J.. Williams O.L.S. dated May 16, 2016 at appendix 6.7 thereto; b) A declaration that the boundary between Part 4 of Lot 7 2 and Part 1 PSR1689 as depicted on Plan 42R-7295 and Plan 42 R-12887 is incorrect ("Boundary"); c) A declaration that the Boundary be amended to accord with the fence line referenced in the field notes of James K. White O.L.S. dated March 29, 1969, or as designated as Part 1 on Plan 42 R-12887 and as further particularized or as otherwise suggested and referenced in the report of E.J. Williams O.L.S. dated May 16, 2016, filed and served herein at appendix 6.7 thereto; d) Further, and in the alternative a declaration that the applicant has obtained ownership by adverse possession over that portion of Part 4 Lot 7 Plan 42R- 7295 to the west of the fence line shown 2 and/or referenced in the field notes of the said James K. White O.L.S dated March 29, 1969, or as designated as Part 1 on Plan 42 R-12887 and as further particularized or as otherwise suggested and referenced in the report of E.J. Williams O.L.S. dated May 16, 2016 at appendix 6.7 thereto; e) That the applicants be restrained from: (i) Entering upon, using or otherwise occupying that portion of Part 4 Lot 7 Plan 42R-7295 to the west of the fence line shown and/or referenced in the field notes of the said James K. White O.L.S dated March 29, 1969 2 , or as designated as Part 1 on Plan 42 R-12887 and as further particularized or as otherwise suggested and referenced in the report of E.J. Williams O.L.S. dated May 16, 2016 at appendix 6.7 thereto; (ii) Directly or through their servants or agents, interfering, molesting, impeding or adversely affecting the use and enjoyment of Part 4 Lot 7 Plan 42R-7295 to the west of the fence line shown and/or referenced in the field notes of the said James K. White O.L.S dated March 29, 1969 2 , or as designated as Part 1 on Plan 42 R-12887 and as further particularized or as otherwise suggested and referenced in the report of E.J. Williams O.L.S. dated May 16, 2016 at appendix 6.7 thereto and/or the cross-applicant’s property by the cross-applicant, his family and invitees; f) That the Land Registrar be directed to amend the Land Registry entries relating to the Boundary and the said lands accordingly; g) An Order either compelling the applicants or permitting the cross-applicant to remove the two birch trees situated on the northerly aspect of the Boundary; h) In the event of this Court declaring that the applicants are the legal and beneficial owners of that portion of Part 4 Lot 7 Plan 42R-7295 to the west of the fence line shown in the field notes of the said James K. White O.L.S dated August 13, 1969 2 , or as designated as Part 1 on Plan 42 R-12887 and as further particularized or as otherwise suggested and referenced in the report of E.J. Williams O.L.S. dated May 16, 2016 at appendix 6.7 thereto, an order declaring that the doctrines of laches, estoppel and acquiescence apply to the Applicants’ claim for a mandatory order for the removal of the retaining wall situated thereon to deny and grant relief from such claim made by the Applicants; i) That the Applicants to pay the Cross-Applicant's costs of and incidental to this application on the substantially indemnity basis; j) Such further or other Order as this Honourable Court deems fit.

[ 6 ] At issue is the location of the boundary between Lots 7 and 8, Concession 4, Hagerman Township and therefore between the parties’ respective properties. If it is where the Cross-Applicant contended it is, along the above-mentioned fence line, then the Point is in Lot 8 and is therefore part of his property, as described. If it is where the Applicants contended it is, along what was referred to as the “White line”, for reasons that will become apparent, then the Point is in Lot 7 and is therefore part of their property, as described. In this latter event, there is then a further issue as to whether the Cross-Applicant has gained title to the Point through adverse possession.

[ 7 ] In support of their application, the Applicants filed:

1. The affidavit of Karen Weaver sworn September 15, 2015 with numerous exhibits attached thereto;
2. A transcript of the examination for discovery of Robert Sheppard Anderson done on September 19, 1995; [3] and
3. The affidavit of Michelle A. Hudolin sworn August 15, 2016 with exhibits attached thereto.

[ 8 ] In support of the cross-application there were filed:

1. a Surveyors Report by E. J. Williams O.L.S. dated May 16, 2016;
2. The affidavit of Gordon Anderson sworn May 5, 2016;
3. The affidavit of Dilruha Anderson sworn March 16, 2016;
4. The affidavit of Roy Anderson sworn March 16, 2016;
5. The affidavit of Greg Anderson sworn March 17, 2016;
6. The affidavit of Anne Anderson sworn March 18, 2016;
7. The affidavit of Larry Anderson sworn March 21, 2016;
8. A supplemental affidavit of Gordon Anderson sworn July 18, 2016;
9. Second supplemental affidavit of Gordon Anderson sworn August 12, 2016.

[ 9 ] Some of the evidence proferred was hearsay, the admissibility of which was not established, in which event it was not used. Aside from that the affidavits filed had not been cross-examined upon and were taken as being accepted

[ 10 ] For orientation, and to place the matter in some perspective, the lakeshore in front of the parties’ respective properties runs west to east, more or less. The Applicants’ lands have about 92 metres of shoreline running west to east (more if the actual irregular course of the shoreline is followed). Towards the eastern side of the Applicants’ lands, the shoreline turns northward at the base of the Point. The land extends northward for a distance of about 33 metres (although the shoreline itself is quite irregular) before turning east again. The shoreline of the Cross-Applicant’s property from that turn is about 30 metres. If the line between Lots 7 and 8 is where the Applicants’ contended it is, along the “White” line, the Point varies in width east to west from about 3 metres to about 13 metres, with the narrowest part being near the base.

[ 11 ] For completeness, I add that the disputed lands include a thin triangular tail extending southward and inland from the base of the Point as described above, a distance of about 47 metres along the White line. The fence line referred to in the Cross-Application and which plays a central role in this dispute is along the western edge of this tail. Overall, the shape of the disputed land is reminiscent of the profile of a railway spike.

[ 12 ] The original survey of Hagerman Township, by Thomas Bryne, O.L.S., is dated 1870. In general, the land is divided into Lots on Concessions. The Concessions run approximately east and west. Nominally, the Lots are 20 chains east to west by 50 chains north to south, a chain being 66 feet, and are 100 acres each unless “broken” by water features. The Concessions and Lots are laid out very regularly, in straight lines, as if the land was flat and featureless. There are road allowances running east to west every second Concession, and north to south every fifth Lot.

[ 13 ] On Concession 4, Lots 7 and 8 are broken to the north by Shawanaga Lake. Lot 7 includes a few acres to the north of the lake which are not parts of the lands in question. There are no roads shown on or next to the lands in question.

[ 14 ] Subsequent to that original township survey, the first survey of the area in question was by James White, O.L.S. That produced Plan PSR-1689, dated 1969, which subdivided the south shoreline of Shawanaga Lake along the front of Lots 8 and 9, Concession 4, into lots. The westernmost of these, Part 1 PSR-1689, is the Cross-Applicant’s land. So, the western edge of it is the line between Lots 7 and 8, Concession 4.

[ 15 ] White’s Report of Survey sets out how he established the boundary line between Lots 7 and 8, Concession 4. It reads as follows:

Mr. Rytkonen, owner of Lots 8 & 9 for the last 31 years ± pointed out a large pine stub at the shore of Shawanaga Lake which he understood was his approx east limit – also a fence on the west side of Lot 8. I did a shore traverse between these points and obtained a tie back to Tompsett’s line for lots 11/12 Con IV (cheek chained). The fence on the west side was not straight nor on a good bearing. A search for the Con IV/V R/A on the north side of the lake disclosed no evidence; likewise the R/A 5/6 south of the lake, across the big point and the little point near the mouth of the creek (see attached sketch). There was no fence at Lot 6/7.

From the fence at 7/8 to Tompsett’s Post at 11/12 was approx. plan width for 4 lots so Lot 7/8 was set 1320x4=5280+66=5346 west of the 11/12 line.

The Pine stub at Lot 9/10 was over 100 east of the net distance for the width of lots 8 & 9 so was disregarded and lots 8 & 9 given a width of 2640’

[ 16 ] It was accompanied by pages of diagrams and measurements. From these it is clear that White established the boundary line between Lots 7 and 8, Concession 4 by measuring from a point on a line established by another surveyor over a mile (i.e. over 1.6 km) to the east and running a straight line on the bearing N20° 51’ 40” W [4] . This is referred to herein as the “White line”.

[ 17 ] After PSR-1689, White did further surveying in the area around the disputed lands, producing:

1. Plan 42R-3529 on Lots 8 and 9 Concession 4 in 1974;
2. Plan 42R-5744 on Lot 7 Concession 4 in 1978;
3. Plan 42R-7295 on Lot 7 Concession 4 in 1981.

[ 18 ] Unsurprisingly, in each of these he used the same line, the White line, being the one he established for PSR-1689, for the Lot 7/8 boundary.

[ 19 ] Subsequently, L. U. Maughan O.L.S., in producing Plan 42R-12887 in 1992, also used the White line in describing the east boundary of the disputed lands. [5]

[ 20 ] On May 31, 1995, Mr. White wrote to Mr. Wyjad, the Applicants’ counsel as follows [6] :

Dear Sir:

I apologise for the dalay (sic) in replying to your letter of April 25, 1995. I have not been in private practice since 1986 and the pertinent information was located in several offices.

The line between lots 7/8, concession IV was established in 1969 when I was employed by John Bradbury, OLS. These records are now in the office of L.U. Maughan, OLS.

This boundary was established by laying out lots 8, 9, 10 & 11 at the width shown on the original plan and field notes from a survey post defining the line between lots 11/12 at the east end of Shawanaga Lake. (See PSR-1689)

This location was generally supported by a fence line pointed out to me by the owner, Mr. Rytkonen. My report notes “the fence on the west side was not straight nor on a good bearing.” If 26 years of memory serve me, the fence was not overly substantial, attached to trees on many places – what is commonly referred to as a “cattle fence” erected primarily to contain livestock. This fence certainly was not used as primary evidence to establish the west boundary of lot 8.

Yours truly,

(Signed, James K. White)

[ 21 ] The letter adds little to his Report of Survey, except to say that the fence was a type commonly referred to as a “cattle fence”. [7]

[ 22 ] White’s field notes from when PSR-1689 was being surveyed for show on or near the Lot 7/8 boundary the fence extending from the Point to Lorimer Lake Road. This was known at some time as Lorimer Lake Colonization Road, suggesting that it dates from the late 1800’s. It does not appear on the original Township Survey of 1870. However, Crown Patent 180264 for Lot 7 Concession 4 and other lands in the township, dated 1887, reserves a right of way for the Lorimer Lake Road “should it pass through the said lots”. It appears on White’s Plan 42R-3529 of 1974 and 42R-5744 of 1978.

[ 23 ] Plan 42R-3529 shows a much larger area than does 42R-12887, including the Point and lands to the south of it through which is Lorimer Lake Colonization Road. Whereas Plan 42R-12887 shows the fence extending about 48 metres south from the shoreline, at the base of the Point, Plan 42R-3529 shows that it is an additional 1003.62 feet (306 metres) from there to Lorimer Lake Colonization Road. So, the fence in question is a small part of a longer fence that ran along the approximate line between the Lots 7 and 8, Concession 4.

[ 24 ] E. J. Williams O.L.S. was engaged by the Cross-Applicant’s lawyer to prepare a survey of the area in dispute and a report for use in this action. The result, dated May 16, 2016 was filed with the court as an expert report. It contains, among other things,:

1. The instructions for, survey notes of and the original survey of Hagerman Township.
2. Land Registration documents for the lands in question.
3. Previous surveys of the lands in question, and survey notes from them where available.
4. Photos of the lands in question.
5. Miscellaneous information.
6. Williams’ current survey and supporting information.
7. Williams’ Surveyor’s Report.

[ 25 ] It is a remarkable piece of work. Even the Applicants’ counsel said it was the best-prepared survey report that he has ever seen. The following are excerpts from the written Surveyors Report which summarize the situation (the tab numbers are the surveyor’s references to the subsections within his full report):

1. ENGAGEMENT 1.1 We were engaged by Gordon Anderson and his Solicitors Bolajoko Ogunmefun and Andrew Mae in December 2015 to help him respond to an action before the Superior Court of Justice started by William Bryce Weaver and Karen Jean Weaver (hereafter "Weavers", Court file CV-15-074). Mr. Anderson owns Part of Lot 8, Concession 4, Township of Hagerman, designated as Part 1, deposited Plan PSR-1689 [Tab 4-1] as in PIN 52090-0028 [Tab 3-16]. The Weavers own Part of Lot 7, deposited Plan 42R-7295 [Tab 4-4], as in PIN 52090-0254 [Tab 3-14]. 1.2 We were required to prepare a survey of his property and the area under dispute and provide this report. A map showing this area is included at Tab 1-4. I have included my CV [Tab 6-5] and Acknowledgement of Expert's Duty [Tab 6-6].

2. DESCRIPTION OF PROBLEM 2.1 There is uncertainty as to the location of the boundary between the Weaver and Anderson properties. There are remains of an old fence that purportedly marked the boundary between Lots 7 and 8 south of Shawanaga Lake between the Weaver and Anderson properties. The line between Lots 7 and 8 as surveyed, lies to the east of the fence adjacent to the Anderson property. The fence either was not shown or was not accurately shown on previous surveys, leading to confusion as to the location of the property boundary.

3. CHRONOLOGY 3.1 ORIGINAL SURVEY 3.1.1 Crown Instructions for the Township of Hagerman were issued to Thomas Byrne, Provincial Land Surveyor (PLS) on the 18 th of October 1869 [Tab 2-3 and 2-4]. In accordance with most of the Townships in the area, every second Concession line was to be run at an astronomic bearing of N69°08'20"E and the side roads at every fifth lot were to be run at an astronomic bearing of N20°51'40"W. Only these road allowance lines and Township boundaries were to be run in the original survey - not all of the intervening lot lines or concession lines. 3.1.2 Paragraph 10 in the General Instructions [Tab 2-3] indicates that lakes found within the lands surveyed must be traversed, "...in order to ascertain the areas of the lots adjoining them." 3.1.3 The instructions further go on to say "Lay out road allowances around those lakes that your road lines intersect, and along the banks of rivers where necessary." 3.1.4 The report of Thomas Bryne, PLS was submitted June 1870 [Tab 2-5], along with the field notes [Tab 2-6], the index for field notes [Tab 2-2] and the Original Township Print [Tab 2-1] dated June 30 th , 1870. 3.1.5 The Original index of Survey Field notes [Tab 2-2] identifies pages 61 & 62 and 15 & 16 as being the lines run closest to the Lot 7/8 line, Concession 4 being the lands in question. These pages are found at Tab 2-4. No shore road allowance is shown around Shawanaga Lake on these field notes. 3.1.6 The Original Township print does not show a shore road allowance in front of Lots 7 and 8 on the south side of Shawanaga Lake [Tab 2-1].

   3.2 LAND REGISTRATION 3.2.1 Weaver Lands 3.2.1(i) The Crown Patent for Lot 7, Concession 3 and Lot 7, Concession 4, Township of Hagerman, dated 15 th of July 1887, grants these lands to John Green [Tab 3-1]. There is a reservation of the right-of-way for Lorimer Lake Road "should it pass through these lots" as well as the standard reservations of the day of minerals, navigable waters and also a "right of access to the shores of all rivers, streams and lakes for all vessels, boats and persons together with the right to use so much of the banks thereof not exceeding one chain in depth from the water's edge as may be necessary for fishery purposes". There is no reservation in this Crown Patent for a Shore Road Allowance.

   3.2.2 ANDERSON LANDS 3.2.2(i) The Crown Patent for Lot 8 and Lot 9, in the fourth Concession, Township of Hagerman dated 7 th of December, 1899 grants these lands to Daniel Beagan. [Tab 3-2]. There is a reservation of one chain in perpendicular width for the Lorimer Lake Colonization Road passing through the said lots. There were also the standard reservations of the day of minerals, navigable waters and also a "right of access to the shores of all rivers, streams and lakes for all vessels, boats and persons together with the right to use so much of the banks thereof not exceeding one chain in depth from the water's edge as may be necessary for fishery purposes". This patent also reserved the pine trees.

   3.3 PREVIOUS SURVEYS 3.3.1 The first time the line was established between Lots 7 and 8, Concession 4, South of Shawanaga Lake in the area of concern was in 1969, during the course of the preparation of Plan PSR-1689 by James K. White, O.L.S. [Tab 4-1]. In his field notes, he notes in the "Report of Survey" the previous owner of the property he was surveying (McRytkonen) (sic) pointed out a fence on the west side of Lot 8. Mr. White disregarded the fence as it "...was not straight nor on a good bearing". He also investigated the location of the Concession 4/5 Road allowance on the north side of the Lake and the Lot 5/6 road allowance south of the lake but was unable to find any evidence. [Handwritten Report of Survey at Tab 4-1]. 3.3.2 It does not appear that Mr. White tried to re-establish the Concession 4/5 Road Allowance using topographic ties from the original fieldnotes [Tab 2-4]. Mr. White established the Lot 7/8 line at a theoretical distance from a post by Bart Tompsett, O.L.S., marking the Lot 11/12 line measuring over a mile (5,340 feet) between these points. 3.3.3 Mr. White's rationale for using this theoretical distance was that the fence in question was approximately plan width west of the Lot 11/12 line established by Tompsett, O.L.S. The cedar rail and wire fence in question was tied in during the 1969 survey and it fits very well with what was measured in our survey in December 2015, indicating it hasn't changed location since 1969. A graphic illustration of this can be seen at Tab 6-1. I can't explain why there is a divergence of the fences to the south of the lands in question - the ties were made to wire on the ground and in a tree and are in a "reasonably straight line". 3.3.4 The monuments defining the Lot 7/8 line planted by Mr. White, O.L.S., are still in place and they measure correctly. 3.3.5 Unfortunately, Mr. White did not correctly plot the location of the fence to the west of the lot line he established on PSR-1689 [Tab 4-1]. He simply had an arrow to his line on the west side of Part 1, Plan PSR-1689 labelled "Irregular Fence", leading one to believe the fence was approximating the lot line. 3.3.6 According to the Standards for Survey, Fifth Edition, September 1991 [Tab 6-4], Mr. White was required under s. 33(i) to: "...show any visible encroachments of fences, buildings or other structures or fixtures." from the land being surveyed onto adjacent lands and from adjacent lands onto the land being surveyed". He should have shown the fence lying to the west of the line he was accepting as the lot line with ties to it on the face of his plan, so the adjoining owners would understand his opinion. If the fence could not be shown clearly at the scale of Mr. White's Plan, an enlargement should have been created to illustrate it. By indicating as he did graphically that the fence was on the lot line, with the text "Irregular Fence" and a leader to the heavy line indicating the Lot 7/8 line, in my opinion Mr. White misled the public by showing the fence coincident with the boundary. As mentioned above, Mr. White was shown the fence by (McRytkonen) (sic) [Handwritten report of Survey at Tab 4-1] and before discounting the fence, Mr. White should have consulted with the owner of Lot 7, Concession 4 to see if this fence had been accepted as the Lot 7/8 boundary. 3.3.7 Plan 42R-3529 [Tab 4-2] by James K. White, O.L.S. dated November 26th, 1973 shows the land directly to the south of Part 1, PSR-1689 [Tab 4-1] (Anderson Lands). There is no mention of a fence on the Lot 7/8 line. The field notes for this plan are not available. Again according to the Standards for Surveys [Tab 6-4] of the day, he should have illustrated the location of the fence off of the heavy line being his opinion of the Lot 7/8 property line and he should have shown ties to said fence. 3.3.8 Plan 42R-5744 [Tab 4-3] by James K. White O.L.S. dated September 7, 1978 illustrates the property immediately to the west of the Lot 7/8 line. There is no mention of a fence on the face of the plan. The field notes associated with 42R-5744 do not show the fence. Again as above, the fence should have been shown on the face of the plan. 3.3.9 Plan 42R-7295 [Tab 4-4] by James K. White, O.L.S. dated November 11, 1981 is a further division of Part 1, 42R-5744 [Tab 4-3]. Again, there is no mention of a fence on the Lot 7/8 line, in either the field notes or on the face of the plan. As on the previous plans, the fence should have been shown for the same reasons. 3.3.10 Deposited Plan 42R-12887 [Tab 4-5] prepared by L.U. Maughan, O.L.S. dated November 16, 1992 was commissioned by Robert Anderson (Gordon Anderson's father). The easterly limit of Part 1, 42R-12887 is the Lot 7/8 line as established by James K. White, O.L.S., originally by Plan PSR-1689 [Tab 4-1]. 3.3.11 When Plan 42R-12887 was originally prepared in November 1992, the westerly limit of Part 1 did not have a fence shown on the face of the plan. An "Application to Correct a Plan" for "the addition of the existing fence to be shown" was submitted by L.U. Maughan, O.L.S. dated 3rd November 1993 and resulted in an Order of the Examiner of Surveys registered 23 rd November 1993 as Instrument [Tab 3-7]. To satisfy the order, Plan 42R-12887 was corrected as per the certificate on the face of the plan dated 10th January 1994 [Tab 4-5]. There was a meandering fence depicted on the plan crossing the westerly limit of Part 1, 42R-12887 with the notation "Irregular wire tree fence" adjacent to it. The field notes dated September 8 th and October 15 th , 1992 from which Plan 42R-12887 was based, have a meandering fence sketched on and it is noted "Remains of irregular fence" adjacent to the fence symbols. There are no measurements to this fence shown on the survey notes. [Tab 4-5]. This is contrary to the Standards for Surveys dated September 1991, Section 2(1)(c) and is required to fulfill Section 24(1)(a)(ii) and (iii) [Tab 6-4]. I will discuss this further in Section 4 of this report. 3.3.12 An inquiry by email to the office of L.U. Maughan, O.L.S. (now deceased) indicated that there were no notes or correspondence on file as to why this fence had been added to the plan and it was surmised, by Bob Hawkins, O.L.S., that it may have been added at the request of Mr. Robert Anderson. [Tab 4-6]

   3.4 OUR SURVEY- DECEMBER 2015 FIELDWORK 3.4.1 Overview My fieldcrew and I met on site with Mr. Gordon Anderson on December 15 th , 2015. On December 22, 2015, my fieldcrew returned to the site to complete the fieldwork. The field notes are at Tab 1-3 and the photographs I took on December 15 th are at Tab 5. My Plan of Survey is Tab 1-2. 3.4.3 Plan of Survey 3.4.3 (iv) Just to the west of the lands in heavy outline lies Plan 42R-12887 [Tab 4-5] . There is significant occupational evidence within Part 1, 42R-12887 with the northerly portion of this property cleared and kept primarily as lawn. Various structures and landscape features are located in this area as illustrated on my plan. The southerly portion of Part 1, 42R-12887 is less well maintained, left in more of a natural state, although there is some evidence of pruning. There is a low "stone wall" on the westerly boundary of Part 1, 42R-12887, built, I am told by Mr. Mae, by Mr. Robert Anderson in 1992 to mark the westerly boundary of Part 1, 42R-12887. To call it a wall is somewhat generous, however, there are clearly defined stones stacked and placed in a line. To the east of this stone wall, there is some evidence of a children's play area as indicated by tramped areas and paths. Towards the southerly apex of Part 1, 42R-12887 there has only been slight clearing of the bush. 3.4.3 (v) Further to the west of Part 1, 42R-12887 there are the remains of the wire fence, some of which are in the trees and most of which are on the ground. Sufficient ties were taken to plot the location of said fence. At the northerly end of the wire fence, there are three cedar rails lying on the ground close to the lake. Both the cedar rails and the wire fence appear to be older than 50 years - probably much older. Not all of the wire on the ground was clearly visible as it was covered with leaves and general forest detritus. We were able to find it using our magnetic locator where it was not easy to see. 3.4.3(vi) Shawanaga Lake is not artificially regulated by a dam. The water level fluctuates significantly throughout the year. Based on my inspection, it is my opinion that the "Ordinary Water's Edge" as I have shown on my plan is the best evidence of the normal ordinary water's edge and I have therefore accepted it as the limit of the lake. During our survey the water level was approximately 0.35m higher than its normal level based on my inspection on site. I have also seen pictures from Mr. Gordon Anderson showing the lawn area containing the fire pit under water.

   ANALYSIS 4.1 The old fence looks reasonable as a limit of occupation for the Anderson property. The pieces of wire in the trees were clearly evident as were the cedar rails near the lake [Photos 1, 2 and 14, Tab 5], although Mr. Gordon Anderson didn't know where all the bits of wire on the ground were . The fence isn't straight (in a surveyor's sense), however, it is much straighter than that depicted on 42R-12887. 4.2 Plan 42R-12887 [Tab 4-5] had the fence in question added at a later date after the deposit of the plan in the Land Registry Office [Order of the Examiner of Surveys Instrument #149146; Tab 3-7]. There were no measurements to the fence shown on the fieldnotes. The location of the fence depicted along the west side of Part 1 does not reflect where the fence was located, both in our recent survey from December 2015 [Tab 1-2], or on PSR-1689 [Tab 4-1]. 4.3 The fence location shown by Mr. L.U. Maughan, O.L.S., on 42R-12887, in my opinion, was not based on fact, as there are no measurements to it. Similarly, the westerly limit of Part 1, 42R-12887 purportedly follows the approximate location of the fence, however, in reality, the fence is and was located well to the west of said westerly limit of Part 1. Mr. Maughan, O.L.S., did not abide by the "Standards For Surveys" of the day [Tab 6-4] Section 33 which states: (1) Plans shall show any visible encroachments of fences, buildings or other structures or fixtures from the land being surveyed onto adjacent lands and from adjacent lands onto the land being surveyed. (2) Fences on the limits of the land being surveyed should be so indicated. 4.4 There was a failure of the fieldcrew of Mr. Maughan to tie in evidence of occupation (being the old fence) as required by the Standards for Surveys, Sections 2(1)(c) and 24(1)(a)(ii) & (iii). Without this field information, Mr. Maughan couldn't possibly know where to add the fence shown on the amended plan [Tab 4-5]. Due to this error, it would be reasonable for the abutting property owners to think that the old wire and cedar rail fence was located on the westerly limit of Part 1, 42R-12887, instead of where it was actually located, significantly to the west as shown on our recent survey [Tab 1-2] and on the fieldnotes for PSR-1689 [Tab 4-1]. 4.5 James White, O.L.S., in 1969 had the opportunity to accept the fence as the limit between Lots 7 and 8. He chose not to, contrary to much common law. For example, … 4.7 The common law cited above was not "new" in 1969 and should have been known to the surveyors of the day. The principle stated in these cases form the basis of reasonable surveying practice. 4.8 Mr. White, O.L.S., also failed to accurately show the location of the fence on Plan PSR-1689 [Tab 4-1]. Although I believe Mr. White's assessment of the import of the fence was incorrect, his survey has been accepted by other surveys 42R-3529 [tab 4-2], 42R-5744 [Tab 4-3], 42R-7295 [Tab 4-4] and 42R-12887 [Tab 4-5] spanning some twenty two years. I can't explain why these surveys didn't investigate the location and status of the old fence.

4. CONCLUSIONS 5.1 I believe that surveying practices on previous surveys weren't as rigorous as they could have been and there wasn't as much attention paid to the fence as there should have been. I'm loathe to apply today's standards to previous work, but believe that much of the conflict could have been avoided if the original surveyor(s) had either accepted the fence as the boundary of the lots or detailed its location properly to notify the adjoining owners that the fence was a significant distance from the lot line. 5.2 For example, of interest is how the 1992 survey 42R-12887 [Tab 4-5] depicts the location of the fence compared to where we've located it. The two locations are drastically different. Where we have located the fence agrees with that shown by Mr. White in 1969. You can see from the field notes prepared for 42R-12887, there aren't any ties to the fence. I don't see how the westerly limit of 42R-12887 was located - it certainly wasn't by the fence. Both our fieldnotes and those of Mr. White [Tab 4-1] show ties to the fence. 5.3 There was an Order of the Examiner of Surveys to revise Plan 42R-12887 to show the fence. The order was initiated by L.U. Maughan, O.L.S. and was made for "the addition of the existing fence to be shown." [Tab 3-9]. The fence was not shown on 42R-12887 when the plan was originally prepared. Evidence submitted in support of the application was PSR-1689 [Tab 4-1], 42R-7295 [Tab 4-4] and Instrument 145317 [Tab 3-6], the latter being a Declaration of Possession by Robert Shepherd Anderson in which he mentions the fence in Paragraph 6. The order was completed and 42R-12887 [Tab 4-5] has a correction certificate noted in the upper right had corner of the plan. 5.4 I would generally be inclined to accept the location of the lot line between Lots 7 and 8 as established by Mr. White, O.L.S. as it has been accepted by four other surveys, spanning 22 years. My reason for accepting the line between Lots 7 and 8 goes back to the words of Justice Cooley in Diehl and Zanger [Tab 6-2] in which he states: "...and if all lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities." Notwithstanding this, it is my opinion that the surveys by Mr. White and Mr. Maughan showing the Lot 7/8 line are misleading with respect to the location of the fence, and that the adjoining land owners, relying on these surveys, would reasonably believe that the property boundary follows the fence as is shown on PSR-1689 [Tab 4-1]. When a layman sees on a Plan of Survey, a fence following a particular line, it reasonably leads them to believe the boundary and the fence are one and the same. Due to the error showing the fence on Plans PSR-1689 [Tab 4-1] and 42R-12887 [Tab 4-5], in my opinion, the adjoining owners were led to believe the fence marked their boundaries. 5.5 Based on my inspection of the property, it appears to me that the possession and maintenance of the adjoining Anderson and Weaver properties is consistent with the old fence line. There is significantly more usage and maintenance by the Andersons within Part 1, 42R-12887 north of the south end of the stone wall. There is little usage evident between the westerly limit of 42R-12887 and the remains of the old fence, however, it appears that both Robert Anderson and Gordon Anderson knew of the existence of the fence and have limited their activities to the east side of it. 5.6 The obvious usage of the fire pit, the filling for landscaping, building of retaining walls, planting of the cedar hedge, placement of stones for the "stone wall" and general brush clearing particularly on Part 1, 42R-12887 is in my opinion, strong evidence in support of the Andersons' possessory claim. 5.7 I have illustrated at Tab 6-7 a boundary approximating the location of the old fence adjacent to the Anderson property for consideration, labelled "Occupational Boundary Option Number 1" in red. In my opinion if there is sufficient evidence of adverse possession, Option 1 is the preferred boundary as it is based on a visible object - the fence. 5.8 Also shown in the drawing at Tab 6-7 in green is the "Occupational Boundary Option Number 2" which is the westerly limit of Part 1, 42R-12887 [Tab 4-5]. There is evidence in the form of the stone wall, that this is the limit of Robert Anderson's occupation. This limit is also referred to in Robert Anderson's Declaration of Possession [Instrument 145317, Tab 3-6], and Gordon Anderson's Caution [GB83227, Tab 3-9]. It appears that Part 1, 42R-12887 is the portion of land most utilised by the Andersons over the years.

Dated 16th day of May, 2016

(Signed E.J. Williams) E.J. Williams, B.Sc., O.L.S.

Law

[ 26 ] The Ontario Court of Appeal dealt with the issue of how to determine where the boundary between two bush lots is where the evidence on the ground – again an old fence – differs from recent survey evidence, in Nicholson v. Halliday, [2005] O.J. No. 57. The court set out the law on point as follows:

28 The leading authority on boundary resolution is Thelland v. Golden Haulage Ltd., [1989] O.J. No. 2303 (Ont. Dist. Ct.). In that decision, Stortini D.C.J. cited an article by Lorraine Petzold, O.L.S., the Executive Director of the Association of Ontario Land Surveyors, "The Survey and The Real Estate Transaction," which was presented to the Law Society of Upper Canada in its Continuing Legal Education Seminar of October, 1983. That article notes the surveyors' "hierarchy of evidence," which ranks the evidence to re-establish a boundary from most compelling to least compelling as follows (at 2):

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

As in the case before this court, in the absence of natural boundaries and original monuments, the surveyor would look for fences or possession before resorting to measurement.

29 As Stortini D.C.J. said (at 2):

[T]he 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 where it was first established, and not where it was necessarily described, either in the deed or on a plan. The boundary is the re­establishment on the ground of the original running of the line and this re-establishment of the boundary constitutes the deed line.

30 Where a line was accepted as a boundary and relates to the original survey, the surveyor will re-establish that line as the boundary. The reasons for this basic principle are evident from earlier authorities. When lands such as the bush lands of Manitoulin Island were settled, the original deeds only conveyed lots: particulars of a lot's description were not available. Not only were there no existing surveys, purchasers were not in a financial position to retain a surveyor; the expense of a survey would often have exceeded the value of the land at issue.

31 The efficacy of this method of boundary demarcation was specifically addressed in Davison v. Kinsman (1853), 2 N.S.R. 1 (N.S. C.A.). In that case, Haliburton C.J. noted that during the early settlements in Canada, surveyors were few in number, and those who were available were "not remarkable for their accuracy" (at 3). Haliburton C.J. went on to note that (at 3-4):

In fact, the actual location of those settlers was almost a matter of guesswork; but they did locate themselves on what they supposed to be the lots granted or conveyed to them, and adjusted their boundaries with each other as best they might .... This would have produced a fruitful field of litigation had not the Court upheld the principle that where the parties had mutually established the boundary between them upon the land they should be bound by it, unless it could be shewn that any unfair advantage had been taken by one over the other. At that early period, and for some time afterwards, land was selling for sixpence and one shilling per acre, and one hundred acres would not have produced money enough to defray the expense of a survey. If to save that expense the parties, in mutual ignorance of where the line between them would in strict accuracy run, agreed to establish such a line as was then satisfactory to both of them, the Court would not allow either to depart from it.... I can see no end to it, but by adhering to the principle that where a line has been settled and adjusted in good faith upon the land, neither party shall be permitted to dispute it.

32 The settler determined his own lot line by locating the original monument, or otherwise determining the location of the lot limit, and, using a compass, following and marking a lot line either by blazing a trail along its length or by erecting a fence. Lots would afterwards be occupied and used in accordance with the boundary if it was peaceably settled by adjacent lot owners. This accepted practice was recognized and supported by survey practice, even though such a boundary was not in accordance with survey measurements.

33 If survey law had not developed principles such as the surveyor's hierarchy of evidence, boundaries long settled between neighbours would become unreliable, with the results described in Diehl v. Zanger, 39 Mich. 601 (U.S. Mich. S.C. 1878), 605:

Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.

34 To avoid such a calamity, the surveyor's goal was to find and 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 by the owner and accepted by the neighbour. Fences and possession became an accepted means of boundary demarcation because it was presumed that, if they were established for the purpose of running the lot line, they were so established in relation to monuments that were no longer available. Even if the monuments themselves had been wrongly placed, the acceptance of a boundary by landowners became the best method of ensuring a just running of the line. As noted in Diehl v. Zanger at p. 605-606:

As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are.

[ 27 ] Stortini J also stated in Thelland, at para. 16:

16 Once the occupation line has been settled and used, the onus of proof rests on the person who seeks to disapprove the line and change the possession. (See Palmer v. Thornbeck (1876), U.C.C.P. 291)

Analysis

[ 28 ] The Ontario Court of Appeal’s reference in para. 30 of Nicholson could easily have been to Hagerman Township. It appears that the original survey of the Township did not describe all of the lots. Specifically, the boundary between Lots 7 and 8, Concession 4 was not established. Settlers of these lots in the late 1800’s would have been faced with the task of locating that boundary using the nearest surveyed points which would have been two lots/one half mile to the west, three lots/three quarters of a mile to the east, and perhaps at the shore of Lorimer Lake, over one half mile to the south, all through the bush.

[ 29 ] White, in his report of Survey for Plan PSR-1689, notes a meeting with Mr. Rytkonen, who he described as “the owner of Lot 8 and 9 for the last 31 years” (i.e. since 1938). Although the note is cryptic, the context would indicate that Rytkonen said the fence marked the boundary between Lots 7 and 8. White’s measurement of the fence to a known point (“Tompsett’s post”) on the lot 11/12 boundary was approximately the right distance for four lots plus a road allowance. Given this, the difficulties in measuring over the topography, and the relatively inaccurate measuring devices available then, as mentioned by Williams O.L.S., it would be a remarkable coincidence if the fence, being so close to the White line, had not been erected as the boundary marker.

[ 30 ] This is even more so in light of the observation, noted above, that the fence is not limited to just the area of the lands in question but extends much further south along the boundary area of Lots 7 and 8, Concession 4 to the Lorimer Lake Road. The proximity of that fence to the surveyed lot line (an extension of the White line) over that distance is unlikely to be a coincidence. Rather, it strongly suggests that the fence was built to mark the boundary.

[ 31 ] In his May 31, 1995 letter to Mr. Wyjad, Mr. White, recalling back twenty-six years to when he surveyed for PSR-1689, says “the fence was not overly substantial, attached to trees in many places – what is commonly referred to as a “cattle fence” erected primarily to contain livestock”. Unfortunately, Mr. White is no longer available to ask about this opinion. Questions such as whether there were any livestock in the area, why a “not overly substantial” fence would be sufficient to contain livestock but, implicitly, not sufficient to mark the boundary, and why a “cattle fence” could not also mark a boundary come to mind. Furthermore, there is no explanation of the reasons behind his statement that “(t)his fence certainly was not used as primary evidence to establish the west boundary of Lot 8”.

[ 32 ] In his sworn evidence at his examination for discovery in September 19, 1995, Robert S. Anderson indicated that he had been in the area as far back as the early 1960’s, that there was bush and swamp, that the area was not farmed, and that there were no cattle there. So, he opined, it was a boundary fence, not a cattle fence. Indeed, throughout that lengthy examination, he maintained that PSR-1689 shows his property going to the fence, that the fence was pointed out to him around the time he purchased the property as marking its boundary, and that he believed that the fence marked the boundary.

[ 33 ] Indeed, Robert S. Anderson stated that when the Applicants’ predecessor on title, Paul Kukoly, had his land surveyed in 1978 for Plan 42R-5744 and it became apparent from the position of the survey markings that there was a question as to where the boundary was, he and Kukoly compared Plan PSR-1689 and 42R-5744, and Kukoly acknowledged that the Point was Anderson’s and that the fence was the boundary.

[ 34 ] In his survey of the property, Williams measured the location of the fence and found both that, although not straight, it is much straighter than as depicted on the Plan 42R-12887, and it is in a different location from that shown on that Plan. He opined in his report that the old fence looks reasonable as a limit of occupation for the Anderson (i.e. the Cross-Applicant) property, and that James White O.L.S. had the opportunity in 1969 to accept the fence as the limit between Lots 7 and 8. White’s failure to do so, he said, was contrary to much common law which formed the basis for reasonable surveying practices then as now. The law that he referred to was the same line of cases that has been reviewed previously in these reasons. White also failed to consult with the owner of Lot 7, Concession 4 to see if the fence had been accepted as the boundary, as he should have, before discounting it as he did.

[ 35 ] Having explained why the fence should have been accepted as the boundary, Williams goes on to state that he “would generally be inclined to accept the location of the lot line between Lots 7 and 8 as established by Mr. White, O.L.S., as it has been accepted by four other surveys, spanning 22 years”. This is on the basis of the statement of Diehl and Zanger quoted in Nicholson at para. 23 :

…if all the lines were now subject to correction on new surveys, the confusion of lines and title that would follow would cause consternation in many communities.

[ 36 ] On the other hand, he opines that the surveys of White and Maughan are misleading with respect to the location of the fence and that the adjoining land owners would reasonably believe that the property boundary follows the fence shown on PSR-1689.

[ 37 ] Counsel were in agreement that surveyors as experts may offer their opinions, but the decision rests with the court. I find that White erred in not using the fence line as the boundary. I disagree with Williams’ reasons for being inclined to accept the White line as the Lot 7/8 boundary. Three of the four other surveys that have accepted it are by White himself. As previously noted, it is not surprising that they used the same line. However, mere repetition of a mistake does not correct it.

[ 38 ] The fourth survey is Plan 42R-12887 by L.U. Maughan O.L.S. in 1992. It was commissioned by Robert S. Anderson within the context of his legal dispute with the current Applicants’ predecessors in title to show the fence line, and it shows the lands in dispute. It follows that it is not surprising that it would show the White line along one boundary of those lands. It is not as independent assessment of where the boundary is.

[ 39 ] Correcting the Lot 7/8 boundary from the White line to the fence line would not, in my opinion, cause the consternation that the Diehl and Zanger case warns of. Rather, one could argue that it was the change – I do not call it a correction – made by White in surveying for PSR-1689 from the use of the fence line to the use of the White line that has caused the consternation, and we are dealing with that now. I do not see that changing back from the White line to the fence line over the relatively short distance involved within the disputed lands that make up the Point will affect anybody other than the parties herein and their successors on title.

[ 40 ] There is a practical aspect to deciding that the fence is the boundary. It seems to me that a settler in the late 1800’s, trying to delineate the boundaries between Lots 7 and 8, Concession 4, realistically would not, when he came to the shore of Shawanaga Lake near the base of the Point, run his line up the Point roughly parallel to and a few feet, at best, in from the shore line. Instead, he would have taken the line, which he marked with a fence, to the shore line at the base of the point thereby minimising the time, effort and materials needed to build the fence. This view is strengthened by the description by Robert S. Anderson of the Point in his examination for discovery. According to him, when he bought what are now the Cross-Applicant’s lands in 1970, the Point was narrower and lower than it is now, notably near its base. There, it was swampy and sometimes was inundated by the lake. A substantial amount of fill had to be added to raise the land and extend the shore line outward to satisfy the Ministry of Environment’s requirements for the installation of a septic system for the cottage he was building. The Cross-Applicant deposed that, but for a retaining wall holding fill, there would be no land access from the Applicants’ lands to the Point because part would be under water. In this case, there would be even less incentive for the settler to extend his fence up the Point.

Order

[ 41 ] Having determined that the boundary between the parties’ respective lands was located incorrectly by James White O.L.S. in surveying for Plan PSR-1689, I next turn to the order that follows from that.

[ 42 ] Firstly, there shall be a declaration that the boundary between Part 4, Plan 42R-7295 and Part 1, Plan PSR-1689 purporting to be the boundary between Lots 7 and 8, Concession 4, Hagerman Township as depicted by James K. White, O.L.S. on PSR-1689 and subsequent plans (the White line) is incorrect.

[ 43 ] This then raises the question of where the boundary should be. The Cross-Applicant sought the following relief in this regard:

1. (c) a declaration that the boundary be amended to accord with the fence line referenced in the field notes of James K. White O.L.S. dated March 29, 1969, or as designated as Part 1 on Plan 42R-12887 and as further particularized or as otherwise suggested and referenced in the report of E.J. Williams O.L.S. dated May 16, 2016, filed and served herein at appendix 6.7 thereto.

[ 44 ] E. J. Williams O.L.S., in his Plan of Survey dated May 16, 2016 and found at tab 6-7 of his Surveyor’s Report sets out options 1 and 2 for the boundary. Option 1 follows the fence line. Option 2 is the westerly limit of Part 1, Plan 42R-12887. In his opinion, option 1 is the preferred one as it is based on the fence. However, he qualifies that by saying it depends on whether there is evidence of “adverse possession”, presumably by the Cross-Applicant, up to the fence line. I think that the use of the words “adverse possession” here is inapt at this time. The decision on the location of the boundary is based on surveying principles, not on adverse possession. If there had been a finding that the White line was the appropriate boundary, then the issue of adverse possession would have to have been dealt with. On the other hand, option 2 is indicated to be the limit of the Cross-Applicant’s occupation of the disputed lands.

[ 45 ] Option 1 would be the choice consistent with the reasoning that the White line is not the appropriate boundary. Practical concerns favour option 2, however. The Cross-Applicant left open the choice of options in full knowledge of Williams’ report. Option 2 is consistent with the Cross-Applicant’s occupations of the lands. It has the advantage of being a straight line the location of which has been surveyed and marked and which is known, as shown on Plan 42R-12887. Perhaps there is an element of compromise here, given that the dispute was a legitimate one arising out of uncertainty created by the surveying, but option 2 would be consistent with the Cross-Applicant’s use and occupation of the property, which appears to have approached but not gone right up to the fence line despite the Cross-Applicant’s belief that it marked the boundary, while not encroaching quite as far onto what the Applicants contend was their property. In view of the above, I find option 2 to be the preferred one. Consequently, there shall be a declaration that the boundary between the parties’ respective properties is the westerly boundary of Part 1 Plan 42R-12887, making Part 1 Plan 42R-12887 the Cross-Applicant’s property.

[ 46 ] The Land Registry is hereby directed to amend the entries relating to the boundary and title to Part 1, 42R-12887 accordingly.

[ 47 ] In the event that either party erects a fence along the west boundary of Part 1 Plan 42R-12887, they shall be permitted to remove such trees as are reasonably necessary for this purpose, in a reasonable fashion, and to cross the boundary a reasonable distance into the other’s lands for that purpose.

[ 48 ] The Cross-Applicant shall remove the stone wall that appears from the Plan of Survey of E. J. Williams O.L.S. dated May 16, 2016 to be on the west boundary of Part 1, Plan 42R-12887 within a reasonable time, and shall be permitted to enter the Applicants’ lands a reasonable distance across that boundary for that purpose.

[ 49 ] The registration of caution GB83227 shall be vacated.

[ 50 ] The balance of the application and cross-application is dismissed.

[ 51 ] If the parties are unable to agree with respect to costs, the Cross-Applicant shall serve and file its costs outline within 30 days, and the Applicants shall do so within 45 days.

J. A. S. WILCOX Released: March 27, 2017

Footnotes

[1] This is perhaps oversimplifying matters, as the boundaries of the lands in dispute are arguably somewhat different from this, but it will be sufficient for reference for now .

[2] It appears that these are mis-descriptions of the lands in question.

[3] Court file 5585/95 in the Ontario Court of Justice (General Division) between Brian McMurray, Louise McMurray, Mary Rita Moreau and Michael Allan Moreau, Plaintiffs and Robert Sheppard Anderson, Defendant. The McMurray’s and the Moreau’s were the Applicants’ predecessors in title .

[4] As will be seen below, this was the bearing that the original surveyor of the township had been instructed to use.

[5] This is as it should be as the dispute is over whether the White line or another line - the fence line - further west should be the Lot 7/8 boundary. By itself it does not support an argument for the White line being the proper Lot 7/8 boundary.

[6] Mr. Wyjad acted for the plaintiff McMurrays and Moreaus against the defendant Robert Sheppard Anderson in the above-mentioned previous litigation over the same issue.

[7] It is understood that Mr. White is deceased. His records were accepted by the Cross-Applicant’s counsel as business records. That left an evidentiary question about his 1995 letter. The Cross-Applicant’s counsel submitted that potentially it was written in the course of business, but that its primary value was that it was easier to read than his hand written notes.