CITATION: Murphy v. Longmore, 2019 ONSC 2602

DIVISIONAL COURT FILE NO.: DC-18-502

DATE: 20190425

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. CORBETT, MEW, AND MYERS JJ.

IN THE MATTER OF an appeal from the Order and Decision of the Deputy Director of Titles dated July 11. 2018 pursuant to section 12 of the Boundaries Act, RSO 1990, c B.10 in respect of Application B-1248.

BETWEEN:

EDWARD FREDERICK MURPHY

Appellant

Jeffrey Streisfeld, for the Appellant

– and –

LAWRENCE LONGMORE and KATHRYN LONGMORE

Respondents

Robert J. Fenn and Izaak de Rijcke for the Respondents

HEARD at Toronto: April 2, 2019

F.L. MYERS J.

Overview

[1] This appeal raises the question of which takes precedence in a boundary dispute: the metes and bounds description in an original registered deed and plan of subdivision or the initial surveyors’ original monuments? In my view, the applicable principles were correctly applied by the Deputy Director of Titles below. When the description of a sanctioned land boundary is expressed correctly and unambiguously by the initial grantor in a registered title instrument, then the registered description governs. In cases like this one however, where the registered description of the sanctioned boundary demonstrably fails to express correctly the intention of the grantor as to the location of a boundary, the law will have resort to other evidence, including original surveyors’ monuments, to ascertain the grantor’s true intention. That is how Deputy Director of Titles Grozelle determined the issue in this case. Therefore, for the reasons that follow, the appeal is dismissed.

The Facts

[2] This case concerns two neighbouring lakefront lots on Lake Haliburton in Dysart, Ontario. The lots extend from Curry Drive to the road allowance that runs along the lakeshore.

[3] In 1953, Clayton Hodgson owned a tract of lakefront land. He decided to subdivide his land to sell individual lakefront lots. Mr. Hodgson retained Ontario Land Surveyor Webster to perform an initial survey in 1953. In 1954, another surveyor, OLS Stinson, followed up on the work of OLS Webster and prepared a plan of subdivision that was registered on title as Plan 352. This plan contains a metes and bounds description of the boundary in issue that was prepared by OLS Stinson based on the work of OLS Webster and himself. The plan refers to some surveyors’ monuments, but not to the one in issue in this appeal.

[4] The parties agree that the applicable root of title to the boundary line in issue in this appeal is a deed referred to as HB823 registered on September 3, 1954. Deed HB823 records a transfer of a lakefront lot from Mr. Hodgson to Joseph Wanko. The deed includes the metes and bounds description of the lot set out in Plan 352. The deed makes no reference to any surveyors’ monuments.

[5] Mr. Hodgson signed Plan 352 and deed HB823 as the owner of the land.

[6] The Wanko lot is now owned by the respondents Lawrence and Kathryn Longmore.

[7] Mr. Murphy is the current owner of Lot 39 on Plan 352 that borders the west side of the Longmores’/Wanko lot.[^1]

[8] In 1988, OLS Wilson discovered a wooden surveyor’s stake near the lake on Mr. Murphy’s land that is about seven feet inside the metes and bounds boundary line with the Longmores. The Deputy Director of Titles, herself an Ontario Land Surveyor, concluded from surveyors’ field notes and other contemporaneous records of the surveys performed by OLS Webster and OLS Stinson, that the wooden stake is an “original post” planted by OLS Webster as part of his original survey. Moreover, the Deputy Director of Titles found that the metes and bounds description of the boundary set out in the deed and the plan of subdivision contains a mathematical error. Correcting for the error establishes that the sanctioned boundary that was intended to be described in deed HB823 and Plan 352 corresponds with the location of the wooden stake.

[9] To create the metes and bounds description for the plan of subdivision, the surveyors needed to describe the angle at which the boundary line runs from Curry Drive toward the lake. The Deputy Director of Titles found that the surveyors made an error adjusting the angle that they measured so as to express it to agree with observations of the North Star. The angle described in the deed and the plan of subdivision was not rotated, as it should have been, by 1 6’. As a result, the boundary line described in the deed and the plan of subdivision drawn from the point where the boundary meets Curry Drive toward the lakeshore road allowance, runs slightly northeast (to the right on a map) of where it should. This creates a long, skinny, disputed triangular slice of land with its apex at the boundary at Curry Drive and with its base by the lake running more or less parallel to the lakeshore from the original wooden stake almost seven feet (to the right) to the mis-described boundary line in the deed and plan of subdivision.

[10] The distance measured along the lakeshore from the original wooden stake across Mr. Murphy’s land (to the left on a map) to the far boundary is 200 feet. This is the intended frontage of Lot 39 set out in the initial survey and is the intended frontage described in the plan of subdivision. Due to the error in the metes and bounds description however, Lot 39 as described in the deed and the plan of subdivision is more than 200 feet wide (by almost seven feet) by the lakeshore road allowance.

[11] Unfortunately, the neighbours have both built utility structures very near their shared boundary line. Depending on which of them succeeds in this proceeding, the roof of one or the other of their structures will be found to overhang the boundary by a few inches.

[12] The Deputy Director of Titles held that the grantor’s intention, properly determined, was that the boundary line was and ought to be recognized as evidenced by the wooden stake as an original post rather than by the line erroneously described in the registered instruments of title. Mr. Murphy appeals.

Jurisdiction

[13] The application before the Deputy Director of Titles below was made under ss. 3, 8, and 9 of the Boundaries Act, RSO 1990, c B.10. Under s. 12 of the statute, an appeal lies to this court.

Standard of Review

[14] The Deputy Director of Titles is an expert tribunal operating under her home statute. The parties agree that the standard of review is reasonableness: Michnick v Bass Road Beach Association, 2015 ONSC 1936 (Div Ct). On a statutory appeal such as this, errors of law are assessed on a reasonableness standard as well. Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 SCR 293 at para. 34.

The Appellant’s Position

[15] For the appellant, Mr. Streisfield submits that the Deputy Director of Titles made a fundamental error looking behind the registered instruments. Deed HB823 and Plan 352 describe unambiguously a boundary line that parties have observed peaceably for almost 70 years. Neither the deed nor the plan makes any mention of a monument denoting this boundary.

[16] The appellant is correct in arguing that, as a first principle, surveyors do not make boundaries. Land owners establish lawful boundaries by describing land in formal legal documents. Where an owner creates a boundary by a legal conveyance or a description in a document with legal force, she is said to give “sanction” to the boundary. Generally speaking, until sanctioned, survey results are not formal legal boundaries: Lambden and de Rijcke, “Boundaries”, in Survey Law in Canada (Carswell: 1989 Toronto) at §4.61(3).

[17] The appellant argues that Mr. Hodgson sanctioned only the boundary described in Plan 352 and deed HB823. He signed the documents giving them legal effect. The boundary line is unambiguously described and has nothing to do with the wooden stake found later. As no document of title refers at all to the wooden stake discovered in 1988, the appellant’s position is that it is just a stick in the mud and nothing more. Even if the wooden stake is an original post planted by OLS Webster, the appellant argues that, without sanction, it has no legal effect.

[18] The appellant relies on the decision of this court in Richmond Hill Furriers Ltd. v Clarissa Developments Inc.,1996 CarswellOnt 4746 (Div Ct). He submits that in that case, the court held that where the intentions of the original grantor are clear and manifest in formal transaction documents, the court will not consider surveyors’ monuments or other evidence of the grantor’s intended boundaries.

[19] In the Richmond Hill case, the owners agreed to change the boundaries from the initial surveyed boundaries. A later owner argued that the initial surveyor’s monuments should govern. The court held that since the surveyor’s monuments were planted for a draft plan of subdivision that was never implemented or sanctioned by the owners, the registered instrument and the boundaries sanctioned unambiguously in the registered instrument governed. There was no uncertainty about what the grantor intended to describe in the plan in that case. There was no doubt that the legal documents correctly described the boundaries that the grantor intended to convey and that the boundaries conveyed were intended to be different than the boundaries initially laid out by the surveyor.

[20] In discussing the state of the law in Richmond Hill, the court relied upon an 1871 decision of the Massachusetts Supreme Court in Davis v Rainsford, 17 Mass 210, that included the following:

No rule of law can be more firmly established than the one relied on in the defence of this action. Whenever, in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern;

[21] The appellant argues that this shows that monuments in deeds govern because they have been sanctioned by the owner by being included in the title instrument. Conversely, he argues that, where monuments are not referred to in a deed, the unambiguous description in the deed governs as it is only that description that has been sanctioned by the owner.

[22] However, in Davis the court went on to note:

The only reason given, or which can be given, why monuments are to control the courses and distances in a deed, is that the former are less liable to mistakes. If, then, it appears that no mistake can reasonably be supposed to have been made in this case, no reason remains for the application of the rule.

It may be safely inferred from these considerations, that no mistake has been made in the admeasurement, and it truly describes the land intended to be conveyed. To this admeasurement we are bound to adhere, in order to effectuate the intention of the contracting parties;…

[23] The Divisional Court concluded:

[28] In our view, the “evidentiary” rule that posts govern does not apply where the intention of all parties is clear and manifest as to the boundary between the Lots…and the original posts were planted for a survey of subdivision other than that registered on title and, other than that conveyed and occupied.

[24] In Richmond Hill the description in the deed was favoured over surveyors’ monuments because it was clear that the monuments were planted for another survey that was not intended to be the basis of the ultimate boundary sanctioned. There was no issue in either Richmond Hill or Davis, as there is here, that the description in the legal document incorrectly expressed the grantor’s intention. In fact, both cases allowed for the review of other evidence to ascertain the grantor’s true intention if there is a mistake or uncertainty in the expression of that intention in the legal documentation.

[25] It is apparent from the case law that there is a vital difference between a determination that boundaries were sanctioned by an owner in a legal instrument and defining the boundaries so created. There is no doubt that a boundary requires sanction by the owner. In addition, where it is manifest and clear that the boundary described in the legal documentation is an expression of the grantor’s intention, as in Richmond Hill, then the instrument governs. But what happens where there is uncertainty or ambiguity in the legal instrument as to the precise boundary sanctioned? What if, as discussed in Davis v Rainsford, it reasonably appears that the registered description contains an error so that it does not accurately, clearly, and unambiguously describe the grantor’s intention? In this case, there is no doubt that Mr. Hodgson sanctioned the boundary between the Wanko land, now owned by the Longmores, and Lot 39, now owned by Mr. Murphy. The issue is precisely where he intended the boundary to be located.

[26] The appellant referred to an 1884 decision of the Supreme Court of Canada that was cited by the New Brunswick Court of Appeal in Hovey v. Pond, 2010 NBCA 2 as follows:

In Grasett v. Carter (1884), 1884 5 (SCC), 10 S.C.R. 105, [1884] S.C.J. No. 18 (QL), the Supreme Court of Canada recognized the importance of a plan in determining the size of a particular lot:

When lands are described, as in the present instance, by a reference, either expressly or by implication, to a plan, the plan is considered as incorporated with the deed, and the contents and boundaries of the land conveyed, as defined by the plan, are to be taken as part of the description, just as though an extended description to that effect was in words contained in the body of the deed itself. Then, the interpretation of the description in the deed is a matter of legal construction and to be determined accordingly as a question of law by the judge, and not as a question of fact by the jury. In construing the description contained in the deed, in cases where land is conveyed by a private owner, and where no statutory regulations apply, but the deed has to be interpreted according to common law rules of construction, extrinsic evidence of monuments and actual boundary marks found upon the ground, but not referred to in the deed is inadmissible to control the […] deed, but, if reference is made by the deed to such monuments and boundaries, they govern, although they may call for courses, distances, or computed contents which do not agree with those stated in the deed. [pp. 114-115]

[27] The appellant argues that Grasett stands for the proposition that the words of a deed must govern the determination of lot boundaries without even considering the surveyors’ monuments or other evidence of the grantor’s intention. It is a form of parol evidence rule for boundaries. Upon reviewing the full text of the Grasett case however, it stands for a very different proposition.

[28] In Grasett, a plan of subdivision was settled in 1831 in the area around Queen Street West and Simcoe Street in downtown Toronto. The plan was based on a survey of what was then largely unimproved forest land. Over time the land was developed and graded. Lots were created. Sidewalks were planked. Fences were built. By 1884, the land had been changed and the original boundaries were not known with precision.

[29] The parties in the Grasett case were neighbours and had explicitly agreed upon a boundary line as between themselves. Relying on that agreement, the respondent built a house on his land. The appellant later claimed that the house encroached on his lot by four inches in accordance with his understanding of the initial 1831 plan. The Supreme Court of Canada held that the appellant was estopped from denying the boundary to which he had agreed and on which the respondent had relied.

[30] Strong J. gave one of the four decisions of the court. In discussing his approach to the case, he started by noting that the court was not provided with the original deeds but had been informed that the deeds contained no description of lot lines using courses and distances or any reference to monuments, stakes, or other physical boundaries. He stated the words quoted above to find that where a deed refers to a plan of subdivision that contains a description of boundaries, the deed is to be taken to have incorporated the boundaries set out in the plan despite any other indications of the boundaries. However, that rule – that the boundaries in the deeds are presumed to be the boundaries defined in the plans to which they refer – was just the beginning of the analysis rather than its endpoint.

[31] Justice Strong then discussed the boundaries set out in the plan as deemed incorporated into the relevant deed. He noted that no stakes or monuments from the original survey had been located. There was “no evidence of any kind to show that the lines of the lots were ascertained at the time of the original survey and marked on the ground.” He found as a fact that it was “impossible to ascertain with exactitude” the precise boundaries referred to in the plan (as incorporated into the deed). Furthermore, as the land had since been developed, measurements based on what was set out in the 1831 plan would not fit the cleared, graded, and planked land.

Strong J. then found that since it was impossible to ascertain the original boundaries, people who bought and sold lots since then had presumed that the fences and other enclosures expressed the “true original boundaries”. But, he went on to hold:

Had there been any evidence of the original boundaries as ascertained at the time of the survey, shown either by a discovery of the stakes or by the testimony of witnesses who had seen such monuments and were able to fix their exact locality, it would have been good evidence, not to alter or control the description in the deed, but as circumstances tending to show what was the state of things at the time to which the plan refers and which no longer exists. No such evidence, however, has been produced. I therefore come to the conclusion that it is now impossible to ascertain with the minute degree of accuracy required to determine this dispute, as to four inches of land, where the exact boundary line prescribed by the deed is to be drawn. I can very well answer the question, what is the boundary between these lots? That is a matter of legal construction of the deed and is very plainly shown by the plan to be a line drawn at 600 feet from Queen street, but when I proceed to inquire where is this line now, I can only say, having regard to the changes made on the surface of the land and to the entire absence of any evidence identifying the line as it was originally, that it is now and was, in 1875, when Dr. Temple began to build his house, utterly impossible for any one to tell. Then the difficulty cannot be met, as is suggested in the appellant's factum, by saying that the line intended by the plan was what is there called a "net line" which I take to mean a perfectly level line and, therefore, one the measurement of which would, from the beginning, have corresponded with a line along the level sidewalk. What the deeds and plan call for is an actual measurement of the land itself as it was in 1831, which such a mode of measurement would not be. Again, it could not be said that we are to presume that a measurement of 600 feet at the present time will give the same result as in 1831, in street and other purposes would necessarily have the effect to bring the side lines further to the south than they were when the lots were first laid out. [Emphasis added.]

[32] Had any surveyor’s monuments been found, Justice Strong would have used them to provide certainty as to the meaning of the boundary described in the deed because the measurements set out in the description were not applicable to the land in its then current state. In the absence of evidence of the original boundaries, the court went on to accept conventional boundaries – those adopted by the parties. Moreover, in light of the parties’ explicit agreement on the boundary on which the respondent had relied in building his house, the court held that the appellant was estopped from making his claim even if he could prove that the original boundaries established an encroachment.

[33] It is apparent then that the quotation from Grasset does not apply as submitted by counsel for the appellant. I do not think that paragraph means what he says it means. There is no parol evidence rule preventing the court from considering other evidence to provide certainty to a formal, written, legal description. Strong J. looked for such evidence himself. In all, the Court found that:

a. a deed that does not contain a description of the land conveyed but which refers to a plan of subdivision that does contain a description will be deemed to incorporate the description and boundaries set out in the plan;

b. where the boundaries in a plan, as incorporated into a deed, do not express the grantor’s intention (in that case because the land had been developed and changed) and the grantor’s intention cannot be ascertained by other evidence, such as surveyors’ original monuments for example, the court will look to conventional expressions of the boundaries adopted by the parties; and

c. a party will be estopped from denying a conventional boundary to which she has agreed and on which a neighbour has relied.

[34] As the outcome of the case turns on the application of the equitable doctrine of estoppel, the passage that the appellant relies upon is obiter dicta at best. In any event, nothing in Grasett is inconsistent with the fundamental principle that boundaries are ascertained from the intention of the grantor who created them and gave them sanction. The issue of how one ascertains the grantor’s intention is a different question. As summarized in point (b) above, the Supreme Court of Canada confirmed that where the grantor’s intention is unclear, the law does consider evidence beyond the description contained in legal instruments of title.

[35] One could understand a rule that gives primacy to the written document. Much of our civil law is based on the certainty of the written word. But, in this niche words often provide less certainty rather than more. As noted in Davis, in the case of boundary definitions, the location of surveyors’ monuments are less liable to be mistaken than words describing those locations. The location of a monument planted by a surveyor is the point intended. However, the process of expressing in words the precise location of a point on the Earth’s surface, describing in prose mathematical, geographic, and geometric relationships, is an exceptionally complex exercise. One need only attempt to read a metes and bounds description to readily understand the complexity and opaqueness of language needed to express the thought that is so simply understood visually. In contrast to the complexity of a metes and bounds description, the visual expression of a surveyor’s post is translated in our minds into

one word - “here”. The law therefore allows for a review of whether the words used in a legal instrument express correctly and unambiguously the intention of the grantor as discerned from original posts and other evidence that, in this area of the law, can provide more certainty than the written word.

The Respondents’ Position

[36] The respondents also rely on two provisions of the Surveys Act, RSO 1990, c S.30 to argue that the Deputy Director of Titles made the correct or a reasonable decision. In s. 1, the statute defines the following term:

“original post” means any object that defines a point and that was placed, planted or marked during the original survey or during a survey of a plan of subdivision registered under the Land Titles Act or the Registry Act;

[37] The respondent notes that an “original post” need not actually be shown in the original survey or in the registered plan of subdivision. Rather, it need only have been placed during the original survey or the survey of the plan that was subsequently registered. The question of whether an object was “placed, planted, or marked during the original survey” is a question of fact. I agree with the respondent that the Deputy Director of Titles made a specific finding of fact that the wooden stake found in 1998 was indeed an “original post” placed by OLS Webster during his original survey and that this finding was open to her on the evidence before her. Accordingly, the finding is subject to deference on this appeal.

[38] The respondents then rely on s. 9 of the Surveys Act that provides:

True and unalterable lines, etc.

9. Despite section 58, every line, boundary and corner established by an original survey and shown on the original plan thereof is a true and unalterable line, boundary or corner, as the case may be, and shall be deemed to be defined by the original posts or blazed trees in the original survey thereof, whether or not the actual measurements between the original posts are the same as shown on the original plan and field notes or mentioned or expressed in any grant or other instrument…

[39] This section deems boundaries referred to in an original survey to be defined by the original posts despite the measurements expressed in the survey or the plan. It expresses a specific statutory preference and priority for the original posts planted by surveyors in their original surveys for a plan of subdivision.

[40] The respondents rely on the decision of the Upper Canada Court of Common Pleas in McGregor v Calcutt, [1868] OJ No. 113, in which Chief Justice Richards held:

Under the latter part of the 35th section it appears to me that the posts or monuments planted in the first survey of the town or village to designate or define any lot, shall be the true and unalterable boundaries of such lot. It does not say, as shown on the plan, or according to the plan, but that the post planted to designate the boundary shall be the true and unalterable boundary.

[41] According to the respondents, the effect of these provisions is that where a boundary is sanctioned in a plan of subdivision, the original posts define the boundary in preference to the measurements contained in the plan. The appellant argues in reply that the opening words of s. 9, “every line, boundary and corner…shown on the original plan” requires that the boundary at issue be sanctioned and therefore only original posts expressly referred to in a plan fall within the section. However, this interpretation ignores the finding of Chief Justice Richards that the posts need not be shown in the plan.

[42] The section does not say that the posts must be referred to in the plan. Rather, it is the border – the line, boundary or corner - that need be shown on the plan rather than the original posts. If there is a line or boundary shown on a plan, the section provides that the original posts define the “true and unalterable boundary” even where there are no measurements shown on the plan. The section has no purpose if it only refers to a boundary line that is already defined in a plan by specific reference to two or more original posts. The appellant’s interpretation would limit the section to just give priority to the measurement between two posts where the plan shows the posts but sets out the wrong measurements between them. However, the purpose of the section cannot be just to correct measurements between two posts shown incorrectly on a plan because the section says that it applies even where there are no measurements shown on the plan. The appellant’s proposed interpretation of s. 9 is not large and liberal. Rather, it is the narrowest possible construction and gives little or no meaning to the enactment. I prefer the interpretation underpinning the decision of the Chief Justice, that the section gives priority to the original posts to unalterably define the boundary lines sanctioned in an original plan.

[43] The appellant’s argument, that until an original post is given sanction by being explicitly mentioned in a plan or a document of title, it cannot be recognized as an original boundary for the purposes of s. 9, confuses the issue of sanctioning a boundary with the issue of defining the boundary sanctioned. Mr. Hodgson had surveys done and signed a plan and a deed that incorporated metes and bounds descriptions that were intended to be based on those surveys. But there was an error in the final translation into words of the measurements taken by the surveyors so that the boundary between Lot 39 and the Wanko land was mis-described in the legal description. The Deputy Director of Titles found that Mr. Hodgson gave sanction to the boundary established in the surveys by the professional surveyors to whom he delegated the task. There was no evidence that anyone intended to move the boundary by the amount of the math error. It seems to have been a simple error.

[44] The question is whether the boundary defined in the metes and bounds description correctly describes the boundary that Mr. Hodgson intended. Section 9 provides a legal answer assuming the section applies as I find. In any event, the Deputy Director of Titles held that there was ample evidence to lead her to conclude that the grantor’s intention was expressed by the original post planted by OLS Webster. On either basis, the decision is transparent, intelligible, and within the range of outcomes that were available to the Deputy Director of Titles.

[45] There was no dispute that if the Deputy Director of Titles was entitled to look behind the deed and plan of subdivision, she correctly consulted the “hierarchy” of evidence as discussed by Dodd J. in McPherson v Cameron (1868), 7 NSR 208 (CA). The hierarchy directs triers of fact to evidence of the grantor’s intention in the following order of precedence:

a. Natural boundaries; b. Lines actually run and corners actually marked at the time of the grant; c. Extension of lines and courses of an adjoining tract; and d. Courses and distances descriptions.

[46] Once the Deputy Director of Titles was satisfied that the legal documents contained an identifiable error so as to fail to set out the grantor’s intention, she properly consulted the hierarchy of evidence – favouring the surveyor’s original post under heading (b) over a metes and bounds description that falls under heading (d). This aspect of her decision is manifestly reasonable, a point not seriously challenged by the appellant.

Conclusion

[47] The appeal is dismissed with costs to the respondents on a partial indemnity basis of $10,000 inclusive.

F.L. MYERS J.

I agree.

D.L. CORBETT J.

I agree.

G. MEW J.

Date of Reasons for Judgment: April , 2019

Date of Release: April , 2019

CITATION: Murphy v. Longmore, 2019 ONSC 2602

DIVISIONAL COURT FILE NO.: DC-18-502

DATE: 20190425

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. CORBETT, MEW, AND MYERS JJ.

BETWEEN:

EDWARD FREDERICK MURPHY

Appellant

– and –

LAWRENCE LONGMORE and KATHRYN LONGMORE

Respondents

REASONS FOR JUDGMENT

F.L. MYERS J.

Date of Reasons for Judgment: April 25, 2019

Date of Release: April , 2019

[^1]: It is actually south-west of the Longmores’ property as the lakeshore does not run perfectly east-west. It is simpler to visualize a map with Mr. Murphy’s lot being to the left of the Longmores – with Curry Drive along the top and the lakeshore along the bottom of both lots.