How Boundary Lines are Established

It's about landowners. Lucas is spot on. Landowners establish boundaries. Surveyors are just a tool, a replaceable one unfortunately. Better start being part of the solution instead of the problem.

:good:

Humans grow teeth.

Ergo, do they do their own dental maintenance ?

Point being young Mr. Lucas may/might look deeper into who does what particularly to a positive professional overview as to who maintains boundaries, not only who makes them.

Or, there would be a number of nosy busybodies in the bedrooms of the nation.

YOS

DGG

Context or Pretext?

Please keep young Mr. Lucas busy sublatitudinally as it might be a time sensitive challenge to explain Ontario boundary law to him.

Do you understand the context of this article? I do not know enough about "Ontario boundary law" to comment on the context of your statement. I do understand the context of Mr. Lucas's article. On this side of the border, he makes perfect sense. I hope he stays down here as we need all the help we can get with the deed stakers and obviously "Ontario boundary law" has eliminated the need for his services. Please enlighten your fellow Surveyors with the Ontario Solution if you are up for a time sensitive challenge.:-S

Context or Pretext?

http://canlii.ca/t/1jkcd is an example of the brilliant judge being misled by the lower court's lawyers' and original hearing officer's (a surveyor) lack of understanding of who created the boundary and how.

Short:

Parcel being a Township Lot had corners set along road but no sidelines run.

Block of 1,000 acres divided into two tiers of 10 lots, 5 to a tier with 20 chains frontage.

Retracement by Surveyor General's crew gets the width of Block within 7 feet of "plan".

An unknown who constructed it, irregular old cedar rail fence 800+ feet west at top end, 0' at bottom, well out of "plan width" position east/west and 130' +/- north south, (obviously a fence of convenience, see Soeurs de Misericorde case) in an area fit for logging, mosquito growing and subsistence cattle munching, is a fence not in the intended original position for Lot Line deemed by an inexperienced surveyor / hearing officer as THE LOT LINE. on a Boundaries Act Hearing.

Case is incessantly quoted as THE way to go.

(OCA Judge is a brilliant person whose grandfather was a cadastral surveyor, as was mine)

It is a travesty of boundary law for a surveyor to not deliver "intent" wisely.

Grey hair does not equal wisdom, but is an indicator of an opportunity for experience.

No grecian formula here !

YOS

DGG

Context or Pretext?

From your case:

2. Peaceful Acceptance

[65] There was evidence before the Director that the owners of Lots 22 and 23 had peacefully accepted the fence as the boundary for more than fifty years. On these findings, the majority in the Divisional Court said (at para. 20): “[w]hat the parties think or thought [about the fence] and then thought again is irrelevant. You cannot think or ‘unthink’ a boundary fence into and out of existence”.

[66] The majority was correct in this way: the question before the Director was whether the fence delineated a boundary, not whether subsequent purchasers believed that it did so. Nonetheless, the history of the fence, including its acceptance by subsequent owners, properly informs the question of its original purpose.

[67] Evidence of lengthy acquiescence or peaceful acceptance of a fence as a boundary has long been held to be relevant to the question of the fence’s purpose:

It is often the case that where lines or parts of lines are found to be extinct, all persons concerned have acquiesced in lines which were traced by the guidance of some land-mark which may or may not have been trustworthy; but to bring these lines into discredit, when the people concerned do not question them, not only breeds trouble in the neighborhood, but must often subject the surveyor himself to annoyance, since in legal controversy, the law as well as common sense must declare that a supposed boundary line or a supposed division line, if long acquiesced in, is better evidence of where the real line should be, than any survey made after the original monuments have disappeared: Kingston v. Highland, supra, at 330.

[68] Longstanding peaceful acceptance is a fact from which the Director was entitled to draw an inference in support of the proposition that, since the fence served the purpose of a boundary from at least 1937, it likely also served that purpose when it was built. I see no error in the Director’s reliance on the lot owners’ acceptance of the fence as informing the question of the fence’s purpose.

...................

You can't state it much plainer than that.

Context or Pretext?

Derek,

That is a very well written opinion. A Professional should be neither a "Fence Line Surveyor" or a "Deed Staker". The fence as described in the opinion definitely fell short of being the best evidence of the Original Intent.

I can not speak for Mr. Lucas; however, I do not believe he is advocating "Fence Line Surveying" or rejecting the Deed just because the Land Owner does not like the location. The problem is that some Surveyors are just applying math to all boundary locations. In Georgia, our Land System leaves a lot to be desired. The courts have ruled that the evidence of an "Original Line" (Land Lot Line) has the same weight as any other line. In some parts of the State, we have no Land Lot System, as the original lines were set by Grants from the King of England. In other areas, the Land Lot System is so poorly defined that many conveyances do not even reference the system. There are many instances where a Land Owner sold a parcel and no survey was made. They measured or paced and all directions and distances were plus or minus. Sometimes math is the best evidence of the original intent and sometimes the evidence does not support the math. Many issues may determine the original intent. These specific issues create the context by which the intended boundary location should be determined.

> Humans grow teeth.
>
> Ergo, do they do their own dental maintenance ?

No, but I would expect even Canadian law would prevent a dentist from grabbing a guy off the street and forcing him to undergo a root canal against his will, and then expecting full payment for the tort.

> Point being young Mr. Lucas may/might look deeper into who does what particularly to a positive professional overview as to who maintains boundaries, not only who makes them.

From the title of the article and from its contents, it is quite apparent that it was not written on the subject of who "maintains" boundaries, but rather who has the authority to create them. Certainly, even in Canada a surveyor cannot, on his own, create property boundaries (except on his own land) whereever he chooses. I'm sure Mr. Lucas would agree however, that professional land surveyors can and should play an important role in maintaining the boundaries in the same location as they were originally created by the landowners. After all, isn't that the entire point he was trying to make?????

> Or, there would be a number of nosy busybodies in the bedrooms of the nation.

I would expect most landowners do not want "busybodies" changing their property boundaries, or creating new ones without their consent. If we continue to do so, soon we will be kicked out the "bedroom", and for good cause.

In the Nicholson & Halliday matter one has to "be there" with enough historical experience to be able to see the fence that is 800'+ out of position is not reasonable to be taken as anything more than a cattle fence of convenience, put up along a former logging haul road to get between a logging assembly/marshalling area in the bush to town.

The logs were not dragged down the two sides of a triangle formed by two original road allowances. One being too steep for horses.

The logs were dragged by team on the most level ground possible which is the hypotenuse of the triangle.

After the logging dried up, the cattle were set out in the scrubby bush in the Spring and easily gathered in the Fall.

It was much easier (and cheaper too) to split cedar rails and put them up along the west side of the haul road rather than pay for a surveyor to mark the line.

Here's the seminal Canadian case of "Fence of Convenience" as should have been the answer in the original Boundaries Act Case.

If it is too big I'll cut it down into bite size pieces.

YOS

DGG

____________________

Case Name:
SISTERS OF MISERICORDE v. TELLIER

[1932] M.J. No. 32

[1932] 3 D.L.R. 715

Manitoba Court of Appeal

Dennistoun, Trueman, Robson, JJ.A.

Judgment: May 10, 1932

(68 paras.)

Counsel:
J. S. Lamont, and N. H. Layton, for appellant.
A. C. Campbell, K.C., and H. R. Annis, for respondents.

1 DENNISTOUN, J.A.:--This is an action for the recovery of possession of land. There are in fact two actions, one against Tellier, the other against Grandmont. They were tried together by Adamson, J., and judgment was given for the plaintiffs in both actions. The ac-tions were not consolidated. Grandmont does not appeal, so that the judgment as to boundary lines stands as against him. That adds to the difficulty of giving effect to Tellier's contention, for to do so will create a patchwork tangle in the records of the Land Titles Of-fice which will require new plans, transfers and releases, causing considerable expense without any real advantage to any of the parties. The value of the land which Tellier claims, he puts himself at $30. It is so trifling that one is surprised that this expensive litigation should have been undertaken at all, and an effort must now be made to put an end to it.
2 The property lies in the Parish of St. Norbert. The plaintiffs are a religious corporation. They maintain a convent and a school in connection therewith. The defendant Tellier is a neighbour who farms his land.
3 Both parties are registered owners with certificates of title under the Real Property Act, R.S.M. 1913, c. 171, of parts of lot 85 according to the Dominion Government Survey of the Parish of St. Norbert filed as No. 549 in the Winnipeg Land Titles Office.
4 Grandmont's land is in lot 86, which adjoins lot 85 on the north.
5 Lot 85 which contains the land of the plaintiffs and Tellier, adjoins lot 86 on the south and east. In other words it forms the southern boundary of lot 86 and also its eastern boundary.
6 Both lots front on the Pembina Highway, which runs northerly and southerly along the western boundary of both lots. The eastern boundary of lot 86 is for a short distance the Red River, and for the rest, lot 85, where that lot turns northward in rear of lot 86. The eastern boundary of lot 85 is in its entirety the Red River, which makes a sweeping curve against the stream from north-west to south-east along the eastern boundary of part of lot 86 and the whole of lot 85.
7 Tellier is the owner of the northerly 125' of lot 85, running from the Pembina Highway easterly along the southern boundary of lot 86 until it reaches the south-east angle of lot 86 about 832.22' distant.
8 This parcel of land does not touch the Red River, so there has been annexed thereto by description by metes and bounds, and by a plan endorsed upon Tellier's certificate of title, a right-of-way 66' wide running from the south-east angle of Tellier's land and along the eastern boundary of Grandmont's land to the Red River. It is entirely on the plaintiff's land.
9 It is the correct location of this right-of-way which gives rise to this litigation.
10 Tellier says it is 122' easterly from where the Sisters put it.
11 If Tellier's contention is correct he has the right to occupy a parcel of the plaintiffs' land 122' by 135.2', with a right-of-way on the easterly side thereof extending northerly to the Red River.
12 The case was of more importance so long as Grandmont was in it, but he having ac-cepted the judgment in his case, has not appealed, and Tellier has no status to dispute the correctness of that judgment.
13 The location of the right-of-way as shown in the Land Titles Office is a very simple matter. It was done by an experienced land surveyor, Mr. Guttormson at the trial.
14 Having the original field notes to guide him, he found the original oak stake on the original base line of the river lots, 42.2' west of the Pembina Highway; from thence he went 15 chains, 25 links, along the southern boundary of lot 86, on the course specified in the field notes, and fixes the true south-east angle of lot 86 at the point where the plaintiffs claim it is.
15 His evidence is convincing, and no attempt was made to contradict it.
16 In 1907, Tellier built a fence on what is undoubtedly the Sisters' land under the fol-lowing circumstances.
17 The respective lots were at that time unfenced and cattle belonging to the parties were trespassing back and forth. For this reason it was decided (apparently) to fence off the right-of-way, which never, at any time, was used for anything more than a cow path to the water.
18 Tellier says that Father Cloutier, now dead, brought in a surveyor, whose name is not proved, who is also dead, to locate the fences. Father Cloutier was not an officer of the plaintiff corporation, nor is it shown that he had any authority to act in anything but a friendly way.
19 Tellier says this unknown surveyor located the line of the fences to enclose the right-of-way, and that he, Tellier, built the fence on the west side, and the Sisters built the fence on the east side, and that state of affairs has continued for 25 years. He claims accordingly that a line was established by consent, and that the plaintiffs are estopped from disputing it, and that, relying on the Statute of Limitations, an action for possession is now barred.
20 There is no record of the survey of 1907, no plan, no field notes. There is nothing but the statement of Tellier, and it is too indefinite to justify a Court in altering the records in the Land Titles Office, which, under the Torrens system, are of great importance.

21 Tellier, even if he had adverse possession of the plaintiffs' land, could acquire no title thereby. Section 83 of the Real Property Act, covers that point.

"83.--After land has been brought under this Act no title thereto adverse or in derogation to the title of the registered owner shall be acquired by any length of possession merely."
22 In my opinion he never had any adverse possession whatsoever. He never cultivated the land until the year of the trial. He built a root-house 5 years before the trial, of poles with a pole roof covered with manure. This root-house was never used and is now in a state of dilapidation. The roof has fallen in and the door is blocked. It is a derelict of no value.
23 Section 79 of the Real Property Act provides, in part, as follows:--

"79.--Every certificate of title hereafter or heretofore issued under this Act shall, so long as the same remains in force and uncancelled, be conclu-sive evidence at law and in equity as against His Majesty and all persons whomsoever that the person named in such certificate is entitled to the land described therein for the estate or interest therein specified, subject, however ...." Here follow exceptions which do not apply to the case at bar.
24 The defendant Tellier shows no right or title to the land except such as he obtained by acquiescence under the indefinite arrangement for fencing a right-of-way in 1907.
25 His contention is that a "conventional" line was established by agreement which dis-placed the true line, and that such line having been acquiesced in for more than 10 years, the plaintiffs are barred by the Statute of Limitations from setting up their right to posses-sion.
26 I can find no evidence of intention in 1907 to do anything more than fence off a cow path for the mutual protection of the adjoining owners, and by mistake, and unskilful sur-vey, it was placed too far to the east.
27 There is no evidence that Tellier or his cows, ever used this right-of-way, but, if they did, it was with the consent, leave, and licence of the plaintiffs. In that case the Statute of Limitations never began to run until the plaintiffs terminated the arrangement by a demand that Tellier should revert to the right-of-way shown in the Land Titles Office.
28 The plaintiffs had no right of action until they withdrew the consent which they are presumed to have given in 1907. There was therefore no action to bar until possession was demanded by commencing the present proceedings.
29 Most of the cases referred to on the argument have no application.
30 We were referred to the cases collected in 7 E. & E. Dig. 265.
31 The case of Harris v. Keith (1911), 3 Alta. L.R. 222, has no application as the Alberta Act at the time it was decided did not contain s. 83 of the Manitoba Act.
32 Bradshaw v. Patterson (1911), 4 S.L.R. 209, deals with title by possession acquired before the land was brought under the Real Property Act, and so does the case of Re An-derton (1908), 8 W.L.R. 319.
33 Sinclair v. McLellan (1919), 15 Alta. L.R. 86, shows that title by possession acquired before the issue of the certificate will not prevail against the title of the registered owner when the latter is in possession when action brought.
34 The case nearest the point is Moore v. Dentice (1901), 20 N.Z.L.R. 128, which holds that an erroneous boundary line which has been adopted without representations by either party is not binding when the error is discovered.
35 Smith v. National Trust Co. (1911), 20 Man. R. 522; affd 1 D.L.R. 698, is authority that no title by adverse possession can be acquired against the registered owner.
36 If Tellier had made improvements on the Sisters' land in consequence of an unskilful survey, he might have been permitted to have the relief granted by R. 601 of the King's Bench Act, now 1931 (Man.), c. 6, and given compensation for his improvements, or the right to purchase the land at its proper value.
37 No case for relief under this statute has been made out.
38 Tellier will sustain no damage whatsoever by the substitution of the true right-of-way for the existing one. His effort is to secure the right to possess the parcel of land lying be-tween the two, and to obtain a declaratory judgment which will enable him to alter the re-cords in the Land Titles Office. I do not know how this could be done, even if the Court were disposed to grant it.
39 If, as he claims, the right of action is barred by the Statute of Limitations, a dismissal of the plaintiffs' action on that ground would give him no title to the land. Adverse posses-sion under the old system of titles might do so, but that is not the case under the new sys-tem.
40 The barring of the action would be a matter personal to the defendant. He could not assign or transfer it so as to convey his immunity to an assignee. Such an assignee would be a trespasser ab initio, for the right to eject a trespasser under the Real Property Act ac-crues from day to day and is never barred by the statute. Tellier could not assign his rights, whatever they were, under the arrangement of 1907, for that was a personal licence as to the right-of-way. It is evident the alleged surveyor of that date made no attempt to locate the true boundary line. If he had, he could have done so without the slightest difficulty as was done by Surveyor Guttormson before the trial.
41 No representations were made by either party upon which the other can claim an es-toppel, for there was at the time no dispute as to boundaries which was settled by the adoption of a conventional line. I find nothing but leave and licence to use a right-of-way for the convenience of both and during their pleasure.
42 The case of Belize & Produce Co. v. Quilter, [1897] A.C. 367, relied on by the defen-dant, has, I think, no application, for it was there held that under the Honduras Land Titles Act a title could be secured by adverse possession. That is not so in Manitoba. The same may be said of Clarke v. Babbitt, [1927] 2 D.L.R. 7.
43 The defendant's right-of-way as shown in the Land Titles Office is of course con-firmed. The formal judgment may be amended to provide for this if desired.
44 The appeal should be dismissed with costs.

45 TRUEMAN, J.A.:--River lot 85, in the Parish of St. Norbert, fronting on Pembina Highway and extending easterly to the Red River, has been under the Real Property Act since 1891. Title thereto has been in the plaintiff corporation since 1903, less a portion of the north-west corner thereof owned by the defendant since 1903 by title under the Act. The latter piece of land, as shown by the certificate of title as well as by the plaintiff's cer-tificate of title with plan thereon, is a strip 125' in width at its frontage on the highway, with its north side bounded by lot 86. The south side, bounded by the plaintiff's land, extends easterly 775.98', preserving the same width. The easterly boundary is defined by the pro-duction southerly of the eastern line of lot 86.
46 The plaintiff's land, with right-of-way thereon for the benefit of the defendant's land, is described in the certificate of title as, "All that portion of River lot eighty-five, according to the Dominion Government Survey of the Parish of Saint Norbert, in Manitoba, contained within the following limits, namely: commencing at a point in the easterly limit of the main highway, as shown on a plan of said highway, filed in the Winnipeg Land Titles Office as No. 549, distant southerly thereon, one hundred and twenty-five feet from its intersection with the northerly limit of said lot; thence easterly, parallel with said northerly limit, to the production southerly of the easterly limit of lot eighty-six, of said Parish; thence northerly, along said production southerly and along said easterly limit of said lot eighty-six, to the water's edge of the Red river; thence easterly and southerly along said water's edge .... subject to a right of way for all purposes, as appurtenant to the balance of the most north-erly one hundred and twenty-five feet in width of said Lot eighty-five, lying to the east of said highway, over and upon a strip of land sixty-six feet in width, lying east of and imme-diately adjoining the easterly limit of said lot eighty-six, and its production southerly, and being bounded on the south by a line drawn parallel to the southerly limit of said lot eighty-six, and distant southerly on the course of the easterly limit of said highway, one hundred and twenty-five feet therefrom, and, on the north by the water's edge of the Red river."
47 Without this right-of-way the defendant could not water his cattle in the Red River. This is the only use to which it has been put. The right-of-way was unfenced until 1907, with the result that the defendant's cattle strayed daily over the plaintiff's land. The plaintiff has an orphanage on its land, and one of the Sisters appears to have spoken to the de-fendant in or about 1906 of the need of keeping his cattle on his own land and of the right-of-way being fenced. In 1907, Father Cloutier (now deceased), who looked after the plain-tiff's real estate interests, had a meeting with the defendant, when it was agreed that the defendant's south and east line should be surveyed in order to determine the location of the right-of-way. A surveyor thereupon made the survey, to the cost of which the defendant contributed $10. Following the survey the plaintiff erected a fence on the easterly side of the right-of-way, the lines of which were thus ascertained. There was at the time a fence on the south side of defendant's lot. How far east it extended is not shown, nor does the evidence disclose whether or not it was necessary to erect a fence across the south end of the right-of-way to keep the defendant's cattle from entering the plaintiff's land. Subse-quently to the survey, a fence on the west side of the right-of-way was made by the defen-dant. In 1925, the defendant constructed immediately to the west of this fence a root house made of poles, with a manure roof. The roof subsequently fell in and the structure is now in a dilapidated state, and has little, if any, monetary value.
48 This action, which was brought on October 24, 1931, as the result of a survey in 1928 made by the plaintiff of the defendant's land, sets up that by error in the 1907 survey land of the plaintiff's was brought within the eastern limits of the defendant's land, repos-session of which is now claimed by the plaintiff.
49 The evidence for the plaintiff, which is not contradicted, establishes that the point of beginning of the right-of-way was mistakenly by the 1907 survey put 121.10' east of the true eastern limit of the defendant's south line, and that by the fence then made by the de-fendant the plaintiff's land has been encroached upon by this number of feet. The width of the de- fendant's land at its true eastern boundary is stated on the plan of the new survey to be 135.2'. The plaintiff gave no evidence of the value of the piece of land sought to be recovered, but the defendant's evidence is that it is worthless for cultivation and not worth more than $30.
50 The defendant pleads possession for more than 20 years, and that by the 1907 sur-vey a conventional line was laid out, relying on which he made the improvements referred to.
51 Adamson, J., held that there was no evidence that what was done in connection with making the 1907 survey was authorized by the plaintiff corporation, and he ordered the de-fendant to deliver up possession of the land in question. The learned Judge had previously in the case pointed out that by the Real Property Act, s. 83, "After land has been brought under this Act no title thereto adverse or in derogation to the title of the registered owner shall be acquired by any length of possession merely." See Smith v. National Trust Co., supra.
52 Could I consider that what took place in 1907 amounted to an agreement to fix the boundary line between the two properties in order to settle once for all a dispute between the plaintiff and defendant with respect thereto, I might not be deterred from giving effect to the agreement thus arrived at, and acted upon, by the fact that the authority of Father Cloutier as agent for the plaintiff was not expressly proven, where the plaintiff gave no evi-dence disaffirming his authority.
53 In Grasett v. Carter (1884), 10 S.C.R. 105, at pp. 110-11, Sir William Ritchie, C.J., said:--"I think it is clear law .... that where there may be a doubt as to the exact true divid-ing line of two lots, and the parties meet together and then and there determine and agree on a line as being the dividing line of the two lots, and, upon the strength of that agreement and determination, and fixing of a conventional boundary, one of the parties builds to that line, the other party is estopped from denying that that is the true dividing line between the two properties." And see Jollymore v. Acker (1915), 24 D.L.R. 503, 49 N.S.R. 148.
54 These essentials of an agreement it is at once apparent are not here present. The parties were not in dispute over their boundary line. The survey was made at the corpora-tion's request with respect to a matter in which the corporation alone was concerned, namely, the location of the right-of-way on its land and the erection by it of a fence on the east line thereof in order to keep the defendant's cattle from wandering over the remainder of its land.

55 It being clear that the 1907 survey, which was intended not to settle a disputed boundary, but to find the western line of the right-of-way in accordance with the description by metes and bounds in the certificates of title of both parties based on the registered sur-veys, on what ground is the plaintiff estopped from showing the error and getting its land back thus mistakenly occupied by the defendant? The outlay of $10 by the defendant as his share of the surveyor's fee counts for nothing where there was not a boundary agree-ment. The building by the defendant of a fence on the west side of the right-of-way and the construction of the root-house might be the subject of compensation were the expenditures not brought about by the surveyor's mistake but by the plaintiff's conduct. As the defendant cannot on the strength of these outlays they made ask the Court for a vesting order of other form of relief in equity, they are without materiality in determining the rights of the parties.
56 Further, it must be answered that had there been an intention by the parties to estab-lish the true line between them they would not be bound by an incorrect line determined through mistaking the boundaries defined in their certificates of title. In Moore v. Dentice, 20 N.Z.L.R. 128, it was held that where adjoining owners concur in putting up a fence along a certain line, on an erroneous assumption by each that it is the true boundary, nei-ther party having made any representations to the other upon the subject, neither is es-topped from setting up the true boundary line. Stout, C.J., said (p. 134):--

"Assuming that under the Land Transfer system--which seems to me not warranted by the statute--title can be transferred by estoppel, the erecting of a fence on what was supposed by both to be the boundary will not, in my opinion, transfer the title to any part of the land .... No dispute had arisen as to the boundary, and it was, as the case states, assumed by both parties that the fence was erected on the true boundary, and that the old fence had been on the true boundary. This seems to have been an er-roneous assumption .... Both parties having acted under a mutual mistake of their rights and of where the true boundary was, there is no estoppel on either party." See also Roach v. Ware (1886), 19 N.S.R. 330; Grasset v. Carter, supra, at p. 123, per Strong, J., and 9 Corp. Jur., pp. 237, 241, 245.
57 It has been necessary to consider the legal and equitable rights of the parties, for I take it that an equitable interest in land under the Real Property Act founded on estoppel or otherwise created by the registered owner (see Union Bank & Phillips v. Boulter-Waugh Ltd. (1919), 46 D.L.R. 41) may be upheld by the Court as against him and the necessary declaration made to secure its recognition on the registry of titles.
58 Referring to the word "merely" in s. 75 (now s. 83) of the Act, Perdue, J.A., as he then was, in Smith v. National Trust Co., 20 Man. R., at p. 543, said:--"I think the word 'merely' may, for all practical purposes, be read out of the statute. If a meaning is to be given to the word, we may construe the section as meaning that no title adverse to, or in derogation of, the title of the registered owner shall be acquired by any length of posses-sion, unless he has done something to divest himself of his title or to impair it." And see Great West Permanent Loan Co. v. Friesen, [1924] 4 D.L.R. 980.
59 I would dismiss the appeal with costs.
60 ROBSON, J.A.:--Appeal by defendant from a judgment of Adamson, J., in favour of plaintiff in an action for the recovery of possession of land. There were two actions by the same plaintiff covering together one area which it is said the plaintiff owned and which, as is alleged, the defendants occupied to the exclusion of plaintiff. The defendants in the other action were named Grandmont. The same judgment went against the Grandmonts but they have not appealed.
61 The whole of the area in question is insignificant and as I can see has no special value for situation, to the plaintiff. One cannot avoid expressing surprise that such expen-sive litigation should have been carried on for such a small stake. The parties are neighbouring proprietors. Their lands are parts of lot 85, D.G.S., St. Norbert. Lot 85 is a long river lot, one end of which abuts on the west side of the Red River. The portions be-longing to the parties are within the part of lot 85 lying between Pembina Highway and the river. Tellier's property is a long strip on the north border of lot 85 but it does not go through to the river. Both titles are under the Real Property Act. According to Tellier's cer-tificate of title, his land has appurtenant thereto a right-of-way for all purposes upon a strip of plaintiff's land adjoining Tellier's and 66' in width extending from the production of the southerly boundary of Tellier's land north-easterly to the Red River. Plaintiff's certificate of title is subject to that appurtenance.
62 Now the plaintiff claims that Tellier has extended his north and south lines 122' east-erly into the plaintiff's property and appropriated as applicable to the right-of-way a strip corresponding to the real right-of-way but immediately to the east of the extended lines. Plaintiff sues for possession of the land so taken. The action is brought on the strength of a survey made in 1928 by Stephen Guttormson evidently acting for Mr. R. C. McPhillips. Some question was raised by Tellier's counsel as to the possibility of error in this survey, but on examination I think it must be accepted as accurate for the purposes of this case.
63 The defendant, however, besides raising the question of boundaries, contended that there had been an agreement between the parties that the boundaries which were being observed in fact were long ago established by agreement between the parties and further that such having been done in 1907, the Statute of Limitations precludes the plaintiff from now bringing this action.
64 The learned trial Judge evidently thought the only question was whether such an agreement as to boundaries as has been referred to was proved. He found that it had not been proved to have been made by any person in authority for the plaintiff and he there-fore gave judgment for plaintiff. The learned Judge did not mention the Statute of Limita-tions. The formal judgment against the defendant puts the plaintiff in possession of the land affected by the right-of-way appurtenant to defendant's land and held by him under certificate of title, plaintiff's certificate of title being expressly subject to it. This seems to have been an inadvertence. Plaintiff has not attempted in the action to efface defendant's registered easement.
65 Defendant swore, and his wife corroborated him, that a survey had taken place in 1907 and that the lines were allotted accordingly. They swore that they paid part of the cost of survey. One of the Grandmonts corroborates as to the survey and the agreement on the lines. Fences were erected in accordance with them. It is not surprising that defen-dant cannot prove that the authority for that line allotment actually came from the inner au-thority of the plaintiff corporation. Defendant stated that Father Cloutier did it and that one of the Sisters participated. Plaintiff made no attempt to contradict defendant in this matter. Plaintiff gave no evidence at all except by a laborer or engineer of recent connection. Con-sidering that there was no dispute for over 24 years following the act of Father Cloutier, I would have no difficulty in holding that his action cannot be disposed of by mere silence.
66 Assuming all this in favour of defendant, its value as an evidentiary circumstance as to the true location of the line is, I think, displaced by the more recent survey by Guttorm-son. Its only other possible value would be as evidence of an agreement by plaintiff to convey the disputed land to the defendant. But there is not sufficient evidence upon which to find a part performance taking the case out of the Statute of Frauds. I do not consider the fencing or the erection of a root-house to be acts of such substance as to justify an in-ference of the existence of a contract for the conveyance to defendant of the land in dis-pute. The Statute of Limitations is invoked but it is clear that mere possession is not now enough. Section 83 of the Real Property Act reads as quoted supra.
67 The introduction of the word "merely" means that possession with nothing else is not enough. I take it that the result is that at least some colour of title must have been present and that the uninterrupted possession for the statutory period may then be important in buttressing the defective title. Nothing that occurred in this case appears to me to provide a sufficient basis of title that could be matured by the Statute of Limitations. I have read and considered the numerous cases cited, including those mentioned by my brother Den-nistoun, but cannot escape the conclusion that the plaintiff is entitled to recover the land as declared in its certificate of title, the boundaries of which were found by Mr. Guttormson.
68 It is evident that while the defendant placed too much reliance on the 1907 proceed-ings his attitude was a natural one. I think that in view of that early arrangement the plaintiff should before proceeding in these actions have demonstrated its claim as to the boundary by proceeding to a survey under the Boundary Lines Act, R.S.M. 1913, c. 19. The plaintiff has, in respect of Tellier's right-of-way, taken too much in its judgment and it should be amended accordingly. In the circumstances I would affirm the judgment subject to the cor-rection I have mentioned and omitting the provision as to costs, and I think fthere should be no costs of the appeal.

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The End