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TITLE - Boundaries - Determination - By description or Crown grant

Thursday, September 17, 2020 @ 6:09 AM  


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Appeal by the defendant from trial judgment determining where the lot line between two lakefront properties ended. The lot line between the two properties skewed the water’s edge and struck the lake at an oblique angle. The chain of title to Lots 41 and 42 began with a 1902 patent from the Crown. In 1958, the JLL Company subdivided the land by Registered Plan 33, resulting in the creation of Lots 41 and 42. The appellant and the respondents purchased their properties pursuant to the legal description in Plan 33. The appellant owned the most westerly parcel of Lot 41, and the respondents own the most easterly parcel of Lot 42. The appellant argued the determination of the terminus of the lot line began with reference to the water’s edge at the time of the 1902 Crown patent. The trial judge concluded the lot line ended at the Normal Controlled High Water Level (NCHWL). He accepted the evidence of the respondent’s surveyor that the NCHWL of the lake had not changed since Plan 33 was surveyed.

HELD: Appeal allowed. The matter was remitted for determination of the water’s edge of the lake at the time of the Crown patent. The determination of the terminus of the lot line must begin with reference to the water’s edge of the lake at the time of the Crown patent. The trial judge’s conclusion that the term High Water Mark in Plan 33 was unambiguous and meant the NCHWL was clearly wrong. The reference to High Water Mark in Plan 33 created a latent ambiguity. Extrinsic evidence was necessary to resolve this ambiguity by ascertaining the intention of the grantor. The trial judge’s conclusion that JLL intended to set the NCHWL as the water boundary in Plan 33 could not stand. The only reasonable inference was that JLL intended to transfer the full extent of the title that it had, whatever that title might be. It would not have made commercial sense for JLL to retain any land included in the Crown patent that was below the NCHWL. The trial judge’s statement that there was no admissible evidence permitting the court to determine whether JLL conveyed all or retained some of their land was incorrect. Given the intention of JLL to convey all the land that it owned, to determine the terminus of the lot line between Lots 41 and 42, the trial judge was required to begin by determining the boundary of what JLL owned. The effect of erosion or accretion on the water boundary since the time of the Crown patent, if any, should also be returned to the trial court. The determination of the water’s edge of the lake, at the time of Crown patent, and the effects of erosion or accretion on that boundary, if any, would determine the terminus of the lot line between Lots 41 and 42. The trial judge’s conclusion that the respondents had a riparian right of access along the line beyond the intersection point with the NCHWL was also set aside.

Becker v. Walgate, [2020] O.J. No. 3269, Ontario Court of Appeal, P.S. Rouleau, A. Hoy and C.W. Hourigan JJ.A., August 5, 2020. Digest No. TLD-September142020007