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TITLE - Boundaries - Determination - By description in deed or Crown grant - Use of documents - Township surveys - Resolving ambiguous legal descriptions

Tuesday, January 02, 2018 @ 8:28 AM  

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Appeal by the Weavers from a trial judgment establishing a property boundary line. The appellants and the respondent, Williams, owned adjacent lakeshore lots. A dispute arose regarding placement of a retaining wall. The trial judge found that an existing town survey did not sufficiently establish the boundaries of the parties' lots. The trial judge accepted a prior surveyor's field notes, and criticisms thereof by the respondent's expert witness, as indicative of the true boundary between the lots. The Weavers appealed.

HELD: Appeal dismissed. Although the field notes made by the prior surveyor were cryptic, the interpretation of the notes by the trial judge based upon the respondent's expert's criticisms was appropriate. Based upon the expert evidence that the prior survey plan reflected improper survey practice and failed to give sufficient consideration to the location of an intended boundary fence, it was open to conclude that the fence was likely erected as a boundary marker. The proximity of the fence to the surveyed lot line strongly suggested it was built to mark the property boundary. Proper legal principles were applied in concluding that in the absence of natural boundaries, the fence was the best evidence of the property boundary line. The trial judge did not improperly conflate adverse possession with property survey principles. No palpable and overriding error was established.

Weaver v. Anderson, [2017] O.J. No. 6418, Ontario Court of Appeal, G.R. Strathy C.J.O., R.G. Juriansz and G. Huscroft JJ.A., December 8, 2017. Digest No. TLD-January12018003