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Real Property Law - Title - Boundaries - Determination - Surveys

Thursday, November 10, 2016 @ 7:00 PM  


Appeal by Mackenzie from the $8,000 judgment in favour of his neighbour, MacKay, in an action arising from a property line dispute. MacKenzie cut 16 trees near the border of the parties’ respective properties. Mackay obtained a survey to establish the property line, and, dissatisfied with the opinion of surveyor Bernard that the trees lay on MacKenzie’s property, fired Bernard and sought another survey. His second surveyor, Clow, came to a conclusion about the boundary that was favourable to MacKay’s position. MacKenzie then hired Bernard to carry out another survey. Bernard found that the boundary line was two feet west of the tree stumps, meaning that they were situated on MacKenzie’s property. Bernard shared his findings with Clow, who revised his opinion and survey to more closely align with Bernard’s. MacKay commenced his action for trespass against MacKenzie, basing his claim on the location of the legal boundary. MacKenzie counterclaimed for damages for Mackay’s wrongful action in twice knocking down woodpiles MacKenzie made with the felled trees. The judge rejected all the evidence put forth by MacKenzie, his family, Bernard and Clow, found that the boundary was the crooked tree line running an irregular course through the centre of the tree trunks, and found that MacKenzie trespassed on MacKay’s property by cutting boundary trees presumed to be common property. MacKay was ordered to pay MacKenzie $166 for knocking down the wood piles, to be set off against the judgment of $8,000.

HELD: Appeal allowed. The judge misunderstood the role of the surveyors, who were bound by their professional responsibilities to the public interest, not to either side in the dispute. The fact that the surveyors had conferred with each other did not undermine their opinions. The judge erred in finding a property line that was crooked when the legal boundary of the properties, as asserted by both parties and found by both surveyors, was clearly a straight line. He went too far in labelling MacKenzie and his family members liars when they were merely asserting their position that the trees were on MacKenzie’s property.